A little while ago I had to deal with a work-related ethics issue. I am going to leave out the details, but I thought it was worth sharing the general case with you and to see what other types of issues you have to go through as part of your modern-day work environment.
As background, I have done quite a lot of work in the area of patents over the past 15 years, as an author and as an assessor, I have worked with legal teams to both prosecute and defend patents, I have helped create patent strategies, and I have been an expert witness. So I do get asked to do various patent-related things as part of my consulting business.
A couple of months ago I was approached by a lawyer representing a non-practicing entity (NPE) -- something that is sometimes labeled a patent troll. These companies buy patents with the intention of suing other companies. In some cases these companies are less than ethical in that they will go after innocent companies and propose a settlement that is less than it would cost the targeted company to hire a lawyer and defend its position. It is cheaper to pay than to fight even if they are not guilty of infringement.
Anyway, what these NPEs are willing to pay for patents depends on what they think is the likelihood of a pay-out and its size, and so a lawyer commissioned me to assess the validity of a couple of patents and the likelihood that the company he represented would be able to sue certain specified companies on the grounds of patent infringement.
The patents were originally granted to very respectable companies, and I am sure the originating companies were just trying to monetize the intellectual property portfolios they had -- especially those patents that were no longer in their primary areas of business. In this respect, the sale of those patents would be helping one set of companies.
But what about the companies the NPE wished to sue?
The NPE would not do this unless it thought it could extract more from them than they were paying for the patents. It had clearly defined large companies as targets and products that it believed might infringe, so this was, dare I say it, an ethical troll.
A number of questions crossed my mind. First, do I want to do business with anyone I do not have the highest moral regard for? Second, if I do accept the assignment, do I give an honest opinion? I could stick it to the lawyer by saying the patents have lots of value and thus cause the NPE to lose money. Or, I could go the other way and tell the lawyer they have no value and thus stop the NPE from buying the patents in the first place. Of course, if it was ever discovered that I had done either of these things it would destroy my credibility.
I did take the job, and it turned out to be an easy assignment because it was very easy to show how the patents would have no validity against the products the NPE wanted to target, therefore placing a low value on the patents in general. I felt I had done my job well, but I still wonder if I did the job for an ethical company.
When I had completed my assessment I offered to send in a report. The lawyer declined. He only wanted to hear my findings verbally so that there was less evidence or paper trail. I am still not sure if I made the right choice.
Interestingly enough, we never established a rate for my services before I started this work. I sent in an invoice and it got paid.
What ethical issues do you face in your jobs as engineers today? No specifics necessary, and if you want to send stuff to me for anonymous responses that is fine.