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Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]

From: Alun
Subject: Re: The patent process [Was Re: Sharing the Family PC is Patent-Pending]
Date: 14 May 2004 00:47:42 GMT
User-agent: Xnews/4.11.09

Stefaan A Eeckels <> wrote in">

> On 13 May 2004 11:35:14 GMT
> Alun <> wrote:
>> Stefaan A Eeckels <> wrote in 
>> I would say that this may be going a little too far. Whilst you never
>> know if some apparently inocuous clause may be a problem, not all
>> contracts have to be complex. It pays to learn some contract law at
>> least. I think it would help you understand contracts. 
> IIRC, that was the type of argument I made, but he
> seemed to think that the moment it was worthwhile,
> one should consult an attorney, and that attempting
> to avoid paying a lawyer was penny wise pound foolish
>  - but he is a lawyer himself, so he might be promoting 
> his profession.
>> But I'm a patent agent, and not considered to be a lawyer, which is
>> synonymous with attorney in the US. 
> Would that be the same status as a law clerk?

No, it wouldn't. 

A law clerk is someone working under a lawyer and training to be one, 
usually by going to night school or occasionally as an apprenticeship in 
the few states where that is still possible (NY, Virginia, and maybe one or 
two others). A law clerk has the same status as a paralegal, i.e. they 
can't produce any legal work product in their own right and they can't sign 
anything. IOW, they have no status!

A patent agent, OTOH, has the same status before the PTO in patent cases as 
a patent attorney, but is not an attorney. A patent agent can provide legal 
services in their own right, within certain limitations (which have been 
often discussed on <> without reaching agreement). Any 
paper I file in the PTO is my legal work product and has my signature. A 
law clerk can't do that, and for that matter neither can an attorney unless 
they are a patent attorney. I can also provide a legal opinion on an 
invention, which any attorney may do, but which a law clerk certainly 

The term 'patent attorney' is not merely descriptive, but refers to an 
attorney who has met the same requirements as a patent agent, which is that 
they have met requirements for _technical_ education and passed a test in 
patent law. So don't assume when you talk to a patent attorney that you are 
talking to a non-technical person!
>> > His summary was that whenever one did something that might
>> > result in the other party suing, one should avail oneself
>> > of the services of a competent lawyer (ie one with experience
>> > in the field), one can never avoid being sued, and one can never be
>> > sure one is going to prevail. 
>> Whilst technically true, I don't think it's worth most people losing any
>> sleep over. It should be possible to at least avoid doing anything that
>> a reasonable person would sue you for. The unreasonable ones are another
>> matter. 
> Most reasonable people never sue. What I'm worried 
> about is the companies with legal departments that
> have to earn their keep, and go after the smallest
> possible competitor (like Microsoft bothering with
>, and even Lindows - I do know they
> have to protect their trademarks etc., but it surely
> resembles swatting flies with a bazooka).
>> > If this is correct, a software author should have every
>> > program examined by a patent attorney, have a stash of
>> > cash in order to be able to defend a lawsuit, and prepare
>> > to spend time in court if ever one of her programs is seen
>> > as a threat by one of the big boys, in which case it is
>> > better to sell them the program before she's bankrupted.
>> > 
>> I wouldn't say every programme. If you are doing something that you
>> think may be patented then it may be a good idea to get advice, but the
>> vast majority of software doesn't rise to that level.  
> But that's the crux of the matter - there are so many trivial
> software patents that there is a significant chance anything
> beyond "Hello World" infringes on a couple of them. 
> Take care,

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