Champerty and Other Common Law We Could Use Today 158
pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"
Re:No, no, no. (Score:5, Informative)
Those laws were applicable in the 1916.
As for the reasoning behind those laws, remember that the judicial system is paid from the country's budget, not by the legal taxes - so, indirectly, you pay for every case that goes to the judge. And, because of those lots and lots of cases that drag for a long time, your own case might take months and months or years and years.
Re:No, no, no. (Score:5, Informative)
What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.
No what got us into this mess in the first place was not applying tried and true law, but instead being stampeded into enacting new law because "oooooh it's the internet ... we need neeewwwww laws (that'll make a motza for the people I work for)." Take copyright and other so-called IP law back 25-50 years and we'd be in a much better position.
That being said, the issues surrounding maintainance and champerty (which makes working on a contingency fee basis impossible) are a little more complicated. In my jurisdiction (NSW.au) these were still torts until 1993 when the Maitainance, Champerty and Barratry Abolition Act 1993 (NSW), was passed. Until then it was difficult for ordinary people to defend their legal rights as the cost of litigation (the ultimate threat) would be prohibitive. So these torts acted in a highly anti-democratic fashion.
OTOH after the Act was passed the amount if litigation obviously increased. And it increased to the point where it was felt necessary to curtail the remedies available to individuals (via the Civil Liability Act 2002 (NSW)). So the abolition of these torts ultimately acted to reduce an individual's rights. Also it made lawyers unpopular as happens when a people becomes more litigious.
Difficult.
Re:Lets not pussyfoot around (Score:5, Informative)
Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it.
Hmmmm...
The disclosure requirement lies at the heart and origin of patent law. A state or government grants an inventor, or the inventor's assignee, a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.
src [wikipedia.org]
So the idea of patents was so that there would be fewer trade secrets. At least that was before information traveled at the speed of light.
Re:No, no, no. (Score:5, Informative)
I agree. What the article fails to mention is why these principles have fallen by the wayside.
1) Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state. As is clear even from the wording of the law, it wasn't designed to uphold justice, the nod at the end notwithstanding, but to keep things quiet, which was in the best interest of the king. Nowadays, in a state ruled by representatives of the citizenry for the citizenry, rather than by the king for the king, the principle of barratry has no place.
2) Maintenance (and thus champetry) makes it impossible for charities to for example support people who are in a protracted legal battle with an organisation with much deeper pockets. Again, we can see that this is a very useful law for the aristocracy but not for the common people.
Both these principles were from a time when the single purpose of the law was to enforce stability, and where it served justice, it only did so as a means to that end. Although vestiges of that past are still visible in our laws today, the current attitude is that the law should provide justice and protection to the citizenry. If there are laws that don't serve this end* they should be changed or abolished.
*Previously on Slashdot:
UK Censorship: Demonic Consequences [slashdot.org]
In the UK, a Few Tweets Restore Freedom of Speech [slashdot.org]
A New Libel Defense In Canada; For Blogs Too [slashdot.org]
In Britain, Better Not Call It Bogus Science [slashdot.org]
And you can help make the world a better place: Libel Reform Campaign [libelreform.org]
Re:No, no, no. (Score:5, Informative)
Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.
I'm not sure of the precise historical reasons for the abolition of these torts in New South Wales, but I note that they also create difficulties for types of litigation funding that are considered legitimate, e.g. funding by public interest groups or unions. IIRC, union lobbying was behind much of the Victorian Wrongs Act, which (in its original form) abolished maintenance and champerty in that State as well as making a whole load of other changes in relation to civil liability for negligence and personal injury.
Barratry (Score:5, Informative)
Barratry is alive and well, in both federal and many state judicial systems:
http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/ [abajournal.com]
http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/ [lukegilman.com]
http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king [citmedialaw.org]
In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.
Re:The Problem Discussed Lies With The USPTO (Score:3, Informative)
There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.
To some degree this is true, but I want to make it clear that most of us do our job as well as we can in the time provided. Unfortunately, as you mention, we don't have the time needed in some cases. It's taken a lot of arm twisting to get management to agree to modify the way our production is measured, and they were kind enough to give us two more hours per case (sort of) in response to the massive issues with examiner attrition.
But all of this goes back to Congress. The USPTO is supposedly a fee-funded organization. Applicants and patent holders pay us fees for practically everything. When you apply, you pay a fee for filing, as well as a search fee. When the application publishes, you pay a fee for that. When the application is allowed, you pay a fee for it to pass to issue. You pay maintenance fees at up to three points during the issued patent's lifetime. And there are other fees: when we send you a decision on whether your claims are allowed or rejected, you have six months (by statute) to respond, but if you respond after the third month, you have to pay us an extension of time fee. If you want to file a petition pertaining to an app or file an appeal of our decision, there are fees for that as well.
The point is, we charge all these fees, and ostensibly, we run the Office by using the fees we collect... except for two things: one, the USPTO does not have authority to set its own fees. And two, the fees we collect go back into the US Treasury, and Congress has to re-appropriate those fees back to us. Throughout the late 90s, when technology was booming and the USPTO was awash in fees, Congress decided to take those fees and spend them on other programs instead of letting the USPTO use those fees to hire more examiners and update its infrastructure. The result is an inventory of over 700,000 pending applications and an average pendency of about three years - and currently, the Office doesn't have enough money to do anything other than rehire old examiners who left the Office for supposedly greener pastures (because the training expense is vastly reduced, compared to fresh new hires), despite the fact that we're shedding examiners at a rate of 500-600 a year even during the economic downturn.
So if you want a solid and sane patent system, two things are required: reform in the "how patents work" side, and proper appropriations from Congress to ensure that the USPTO can actually get all those applications properly examined.
One final note: patent examination is not expected to have perfect results. Since this is Slashdot, I'll offer a lame analogy: A person walks up to you and says, "I may have lost my needle in that giant haystack over there, but I'm not sure. Could you try to find it for me, please?" Not only is searching the prior art like looking for a needle in a haystack, but you aren't sure the needle even exists, and there's a huge line of other people who want you to look for their needles as well. Eventually, you may have to just give up and tell the person that you didn't find their needle (i.e., give them a patent). While occasionally we do issue something that shouldn't be issued, there are thousands of other applications that go abandoned and thousands more in which the claims are narrowed over the course of prosecution to ensure that the issued patent covers only what the applicant actually invented. As with everything else, though, it's the screw-ups that get all the press.