There's Loving Your Job...
and then there's patent attorneys.
Everyone I've ever talked to who works with patents* seems to be head-over-heels with their profession.
The man I interviewed on Wednesday, as part of my project to review WHO's own patent policy (yes, ironically despite having commissioned an independent body to analyze the impact of intellectual property laws on health worldwide, their very own policy has not been updated since 1982-- either sentence of it), was no exception.
[Click blue-ellipsis for the rest!]
He was not an actual patent attorney, but during his long career as a scientist in the pharmaceutical industry happened to become very involved with helping the legal department in patent oppositions.
He described these proceedings with evident relish, characterizing them as "the height of a purely intellectual battle". Unlike civil proceedings, he said, when you defeat the other side you're not causing your opponent to go to jail or lose their house or hit the gallows. You can concentrate on strategy rather than emotion. He also recounted the joys of tracking down prior art to challenge claims, which comes down to a creative memory game ("Ah yes, I recall something similar described once... In a blue book? On the... 4th shelf?")
One exciting battle he cited was the story of a long drawn-out infringement lawsuit involving two pharmaceutical companies: Company A was the leader in the field of a certain technology, and held the 'dominant' patent on this one invention (ie, the invention was covered by multiple patents, and while most could be worked around by other means, there was no alternate way around this one keystone patent which covered a critical aspect of the invention), which was worth millions.
Company A was so far ahead of its competitors that it seemed foolish for Company B to even be doing work on the same problem. And eventually, Company A sued Company B for having come up with a construction that seemed very clearly to violate their own dominant patent. The legal battle waged on for many years, but it looked like this was going to be an easy victory for Company A... until it was discovered that there had been a mistake in their patent claim.
A very tiny mistake.
It turned out that the scientist responsible for the main innovation had sent off a sample for sequencing that was, ever so slightly, impure. Causing the resulting description on the patent claim to be wrong by one amino acid. Just one, in a very very complex chemical composition. But it meant that Company B was awarded rights for their claim for the correct, functioning composition. And thus, $100 million, and an entire market, changed hands over one small technical oversight. Oops.
What amazed my interviewee, in having attended this spectacle, was that afterwards the patent attorneys on both sides, despite the vast significance for their companies, showed no enmity toward each other. In fact, they started musing about which restaurant they should all head off to for dinner together.
He came to realize this was how their culture worked-- because companies were so often involved in suits, different legal teams not only had to meet each other in opposition many times, often they had to pair up with each other and work together when suits involved multiple parties. It was quite common, he said, for Company A and Company B to be going after Company C in the morning, only to have B and C buddying up to thrash A in the afternoon.
[Ah, I thought, Hunter-gatherers!]
...
Another story he told was of a brilliant lawyer on his company's team, who won the morning session suit on the grounds that some provision in Paragraph 54 of some law, clearly applied in their favor. That afternoon, he defended a different invention on the grounds that wait a minute, what what would you know, there's an even better precedent that explains why Paragraph 54 can't possibly apply.
Now it happened that the judge of the case was the same one who had presided over the morning session case, and naturally pointed out that in the morning this lawyer had been equally fervent that Paragraph 54 was right!
"Your honor", the man said with a straight poker-face, "This morning I was wrong."
The judge gaped slightly, but there was nothing he could do. The evidence was sound; so the team ended up winning the second suit too.
...
Anyway, absolutely priceless. I love hearing these kinds of stories.
At the same time, I can see how easy it is for patent attorneys to get swept up in their own "bloodless" game, and forget the broader effects of the intellectual property system on the world at large. This gets particularly touchy on insisting (in "free" trade agreements and the like) that developing countries adapt their rules to the game as it has been set up by developed countries, without taking into account what is most beneficial for promoting innovation at their particular stage of technological development, or the unique public health concerns they need to treat as a priority.
I'll try to remember to expand on this more in future posts...
For now, hope I did justice and that you found these stories as entertaining as I did!
...
* Okay, so maybe my survey of ahm, four patent professionals, doesn't quite amount to a statistically significant sample size, but the responses are 100% unanimous... so clearly we just need to revise our standards for statistical significance until they confirm my thesis. I mean, it's not like objectivity really exists, right? So no harm done...
Everyone I've ever talked to who works with patents* seems to be head-over-heels with their profession.
The man I interviewed on Wednesday, as part of my project to review WHO's own patent policy (yes, ironically despite having commissioned an independent body to analyze the impact of intellectual property laws on health worldwide, their very own policy has not been updated since 1982-- either sentence of it), was no exception.
[Click blue-ellipsis for the rest!]
He was not an actual patent attorney, but during his long career as a scientist in the pharmaceutical industry happened to become very involved with helping the legal department in patent oppositions.
He described these proceedings with evident relish, characterizing them as "the height of a purely intellectual battle". Unlike civil proceedings, he said, when you defeat the other side you're not causing your opponent to go to jail or lose their house or hit the gallows. You can concentrate on strategy rather than emotion. He also recounted the joys of tracking down prior art to challenge claims, which comes down to a creative memory game ("Ah yes, I recall something similar described once... In a blue book? On the... 4th shelf?")
One exciting battle he cited was the story of a long drawn-out infringement lawsuit involving two pharmaceutical companies: Company A was the leader in the field of a certain technology, and held the 'dominant' patent on this one invention (ie, the invention was covered by multiple patents, and while most could be worked around by other means, there was no alternate way around this one keystone patent which covered a critical aspect of the invention), which was worth millions.
Company A was so far ahead of its competitors that it seemed foolish for Company B to even be doing work on the same problem. And eventually, Company A sued Company B for having come up with a construction that seemed very clearly to violate their own dominant patent. The legal battle waged on for many years, but it looked like this was going to be an easy victory for Company A... until it was discovered that there had been a mistake in their patent claim.
A very tiny mistake.
It turned out that the scientist responsible for the main innovation had sent off a sample for sequencing that was, ever so slightly, impure. Causing the resulting description on the patent claim to be wrong by one amino acid. Just one, in a very very complex chemical composition. But it meant that Company B was awarded rights for their claim for the correct, functioning composition. And thus, $100 million, and an entire market, changed hands over one small technical oversight. Oops.
What amazed my interviewee, in having attended this spectacle, was that afterwards the patent attorneys on both sides, despite the vast significance for their companies, showed no enmity toward each other. In fact, they started musing about which restaurant they should all head off to for dinner together.
He came to realize this was how their culture worked-- because companies were so often involved in suits, different legal teams not only had to meet each other in opposition many times, often they had to pair up with each other and work together when suits involved multiple parties. It was quite common, he said, for Company A and Company B to be going after Company C in the morning, only to have B and C buddying up to thrash A in the afternoon.
[Ah, I thought, Hunter-gatherers!]
...
Another story he told was of a brilliant lawyer on his company's team, who won the morning session suit on the grounds that some provision in Paragraph 54 of some law, clearly applied in their favor. That afternoon, he defended a different invention on the grounds that wait a minute, what what would you know, there's an even better precedent that explains why Paragraph 54 can't possibly apply.
Now it happened that the judge of the case was the same one who had presided over the morning session case, and naturally pointed out that in the morning this lawyer had been equally fervent that Paragraph 54 was right!
"Your honor", the man said with a straight poker-face, "This morning I was wrong."
The judge gaped slightly, but there was nothing he could do. The evidence was sound; so the team ended up winning the second suit too.
...
Anyway, absolutely priceless. I love hearing these kinds of stories.
At the same time, I can see how easy it is for patent attorneys to get swept up in their own "bloodless" game, and forget the broader effects of the intellectual property system on the world at large. This gets particularly touchy on insisting (in "free" trade agreements and the like) that developing countries adapt their rules to the game as it has been set up by developed countries, without taking into account what is most beneficial for promoting innovation at their particular stage of technological development, or the unique public health concerns they need to treat as a priority.
I'll try to remember to expand on this more in future posts...
For now, hope I did justice and that you found these stories as entertaining as I did!
...
* Okay, so maybe my survey of ahm, four patent professionals, doesn't quite amount to a statistically significant sample size, but the responses are 100% unanimous... so clearly we just need to revise our standards for statistical significance until they confirm my thesis. I mean, it's not like objectivity really exists, right? So no harm done...
posted by L'el at 9:12 AM
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