Monday, December 01, 2003

Attorney Advertising in the USA and the Bates Case

In my classes on legal research and legal writing at the University of Trier Law School, one of my favorite topics for assigning papers to first-year German law students taking the FFA elective course in Anglo-American law has been attorney advertising and the landmark case in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed. 2d 810 (1977).

Not only is the case relevant to student studies and to an understanding of the law, but the logic of its principles is in great measure equally applicable to both the English-speaking legal world as well as to the German law profession.

US Supreme Court Cases Subsequent to Bates

US Supreme Court cases subsequent to Bates relating to legal advertising are found cited here.

Online Publications relating to Attorney Advertising

A 1996 Florida paper by Jordan Rappaport in a Froomkin seminar deals with "Attorney Advertising on the Internet".

Via the September 25, 2002 New York Lawyer in the article "Attorney Advertising Is Still Controversial" we are directed to the original article by Mark Ballard and The National Law Journal at entitled "The Little Ad That Changed Everything", dealing with developments in attorney advertising which have followed the decision in Bates.

LLRX has a January 15, 2003 feature article entitled, "The State of Law Firm Marketing: The Bates Decision and the Internet", by Debbie Monroe, Vice President and General Manager, FindLaw.

Bar Associations and Attorney Advertising

The Dallas Bar Association has a summary of the law relating to Bates in its Legal Ethics Opinions.

A May 30, 2003 letter by the Public Citizen Litigation Group challenges proposed limiting rules on attorney advertising by the Kentucky Bar Association.

AT&T patent suit against eBay for using PayPal

Via William Slawski and the Delaware Legal Weblog we are directed to an article by Rachel Konrad of the Associated Press entitled "AT&T sues eBay over PayPal" which appeared in The Seattle Times, November 21, 2003, reporting that the

"Delaware District Court was the recipient of a complaint filed by AT&T against eBay over Paypal in a patent infringement lawsuit over electronic payments."

The suit claims that AT&T developed the underlying payment system in 1994 and that three AT&T senior engineers working for the phone company filed for a patent in 1991 for exactly such an online payment process as used by PayPal, which they called "Mediation of Transactions by a Communication System," with the patent being granted in 1994, according to AT&T.

Questionable Application of Patent Laws to Software, Software Methods and related Business Practices

At fault for these increasingly absurd patent suits which are threatening the whole working fabric of the Internet - see my postings on Eolas and Linux Unix SCO IBM - is the questionable application of patent law to software, software methods and related business practices, whereby patents are being issued and then being judically enforced for what are basically ideas and methods, rather than inventions.

The Need for Legislation to limit Patents on Software and related Methods and Practices

Originally - see my discussion of the Bonito Boats case - it was of course never the intention of the patent laws to support someone who said, "hey, I have a great idea - we can make payments over the internet" and then to get a patent for all subsequent internet payment methods by whatever imagined means. This is just "patently" absurd.

It has come high time for the US Congress and the European Union to enact sensible legislation on patents, software and the internet and for courts to issue decisions bringing the patent laws back into the realm of reality. In my opinion, the courts should declare that it is NOT a patentable invention if you simply have an idea to do something using the internet or mobile systems which heretofore was not done using these communications systems but done previously by other means. These ideas of extending methods to the internet are OBVIOUS to everyone and are suggested by PRIOR ART of all kinds. They are NOT inventions.

Moreover, patent limitations on these kinds of ideas and methods will not hinder people from coming up with new software programs or methods - but it will alert them to the fact that only THEIR IMPLEMENTATION is patentable, not the general idea.

Example: I am sure some text program somewhere was the first to write code allowing text to be indented. Given the way the patent laws are currently being interpreted, if someone had patented the idea of "indenting text" by software code way back then, then all programs using software that indented text would have to pay the "inventors" a royalty. That is just nonsense.

Everyone is capable of dreaming up new ideas of how to use the internet - such ideas are rampant in the entire digital community - but the INVENTION is to write a viable software program:

1) that DOES (actually IMPLEMENTS) what an obvious idea suggests

2) that is economically feasible, and

3) is accepted by the public.

This in fact is not so simple - and THAT is what should be rewarded by patent protection.

A particular software implementation of an idea or method - i.e. a full program - should be patentable, but NOT what it does.

Patent Claims on Software and Software Methods threaten the Internet

AT&T no more invented and implemented the PayPal payment system than the man in the moon. That they foresaw the possibility of using the internet to make payments online may be true, but that should not be a patentable invention.

The Eolas case - where the claimed Eolas patent is currently being reviewed by the US Patent Office - involves a similar suit filed by Eolas against Microsoft, claiming essentially a monopoloy on the IDEA of embedding an executable program into a browser.

For anyone who understands computer programming, even the idea of a patent for this is absurd. EVERY piece of code of a software program is essentially EMBEDDED into a larger whole, i.e. into the respective software "program". Specific larger pieces of software, as modules, are then embedded into still larger software wholes. It simply stretches the idea of a patent to absurd limits to claim that somehow embedding one kind of software code into other code - here a browser code - warrants patent protection simply because the embedded code is executable and someone claims to be the first patent filer of the idea that executable code also be embedded in browser code.

I find it ridiculous as a strict matter of law that we are patenting these kinds of things.

A similar example of the absurdity prevalent in this sphere is Amazon's patent claim regarding their patent on the ability to order goods online by a single click - where is the INVENTION in this so clearly obvious method of internet payment?

Suppose if I filed a patent for a 2-CLICK technology? Would that mean then that anyone else subsequently using 2-clicks to enact the payment process would be prohibited by patent law from doing so? It is absurd for the law to protect such obvious methods, which have nothing in the character of inventions and which are all foreseen by prior art.

A particular software implementation should be patentable of course, but NOT the basic method itself. EVERYONE should be able to order goods by one-click on the internet without having to pay Amazon royalties. But things are getting worse, not better. Amazon has now patented the method of computerized delivery of gifts to third parties, as if this were some kind of an "invention".

It is time for the LAWMAKERS and JUDGES to get up off their hind ends and get to work to write sensible patent law in both statutes and cases regarding internet software code and applications - this applies not only to the US Congress but also to the European Union, where the battle over the patentability of software is also raging.

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