If a lawyer were acting on behalf of a company to bring about a suit, we would probably have less issues with it. Sure, as Rick points out, we can argue about the merits of the patent system anyways and it should make a difference if it were willful versus accidental. I would hope that in the latter case a settlement would be possible but then comanies can be nasty about these things. Now, if the lawyer is not employed by the company but is taking a cut of any gain, do we start to have issues with it at that point? Do we have a problem with the owning company selling a patent to another company? If not then why do we object to selling it to a NPE?
I've done a fair amount of coverage on patents, patent law, NPEs, infringement suits and strategies to handle them. There are enough ethical issues in this area to write a few books and lots of grey zones.
Clearly you got lucky in not being asked to analyze a patent that might have cost big bucks for a lot of well meaning companies with good products.
The larger question to me is:
Is it ethical to sue infringing products when you make no product?
Is it ethical to extract significant monetary damages if you cannot prove the infringer was aware of the patent?
Given the plethora of patents filed every year and the quality of patents that somehow sqweak through the system (note Brian's many funny stotries on this score) is it ethical to extract significant damages at all?
Let's keep a dialog going on patent issues, Brian.
@calebkraft You are a better person than I am because I find it difficult to work with people I don't like. That hasn't stopped me from working with them, because hey sometimes there isn't any choice, but I'm not a happy camper. If I felt someone was asking me to do something unethical or against my values, then absolutely, I would walk away.
@Bert - no there was no contract, no statement of work or anything up front. It was all very informal and only when I said that I was about to write my report did they tell me that they wanted nothing in writing. With that said, I have also been involved with the legal departments of large corporations that have also resisted having work in progress reported. I can understand this because a case I was involved in many years ago attempted to exploit that I had an incorrect knowledge of some technology during the early parts of my work in that area and had used terms in a lose manner. All of that came up in the hearings and I guess I wished I had never written some of it down - at least until I was certain of what I was saying.
Was the agreement ahead of time that the work would not be documented? I wasn't in that position, so I can't say for sure. My inclination would be to insist beforehand that my report be in writing and receipt acknowledged. Perhaps the patent troll would go away and leave me alone, if I stipulated this ahead of time?
Where I work, the ethics code reads very clearly that even the appearance of impropriety should be avoided. That makes sense to me.
BTW, I was also an consultant for a company unassociated with my job, for a certain amount of time. All on the up-and-up, but it made me uncomfortable because of the potential for "conflict of interest" issues coming up. Even though, during my period with them, this never did come up, I thought it best to end that relationship. There's always the potential for something that I might not have thought would be viewed as "conflict of interest," that someone else might think it was. So if I didn't disclose this, and it came to light somehow, then there would be this appearance of impropriety. They did pay me for these consultations, but honestly, so what?
Brian: First, I think you acted completely ethically in the case described. You were hired to do a job, you did it, and the customer got its answer. If they don't like that answer, they can hire someone else and "shop" for a version they like.
Second, though I don't like patent trolls, current law doesn't bar their activities and they can hire who they wish. When they do, I think that party has an ethical responsibility to tell the truth -- something often lacking in business today. So I though it would be unethical to tweak the facts to deliver a particular outcome.
What do other readers think of patent trolling? Should it be legal? If it were illegal, would that be an enforecable law? Do you think the trolls should be required to report ALL assessments if they bring an action against a company? Or should they be free to pick and choose the ones most favorable to their case?
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