IPthoughts: The Risks of Being a Patent Attorney

Hat tip to Patently O for pointing out the new patent attorney blog IPthoughts - which has an interesting post on the explosion of potential liability for patent prosecutors. The blogger - a very seasoned practitioner - questions whether becoming a patent prosecutor is even worth the risk anymore! But it's true that patent prosecutors face a potential liability far out of proportion with probably any other field.

Consider the recent Blackberry settlement. Can you imagine if the parties had been negotiating a settlement that established the value of a patent at $612.5 million - but then RIM had been able to pull an invalidity holding out of the court? I'm sure the original prosecutor of NTP's patents was not having a pleasant time until the signatures were on that settlement.

Here's a cross-post of my comment at IPthoughts:

The chances of this are not infinitessimal - it happened to a co-worker of a brother of a co-worker of mine (got that?).

It also points out the ridiculously disproportionate potential liability of patent prosecutors compared to any other field, even surgeons. Which suggests that there should be some kind of solution: statutory relief for patent prosecutor liability.

No nuclear power plant would ever have been able to have been built if not for government-provided catastrophic liability coverage under the Price-Anderson Act. Government-provided catastrophic care coverage is often mentioned as an important component in restraining the explosive growth of private health insurance costs. Needless to say, the plight of patent prosecutors hasn't gotten quite the public or media attention, but government-provided catastrophic liability coverage for patent attorneys is the only way I see of ensuring fairness for patent attorneys and preventing gross distortions in the labor market.

It would not only be important to patent attorneys; a strong case could be made that the threat of such catastrophic liability is already restricting the labor market for patent prosecutors by intimidating many potential workers from pursuing the field - this post and several of the comments on it are evidence of that. This restriction on the labor market in turn drives up the costs for an inventor to seek patent protection, a burden likely to fall disproportionately on small businesses, which as we often hear, are responsible for two thirds of the job creation in this country.

So, time to lobby for a Job Creation Protection Act of 2006, to include a patent prosecutor version of the Price-Anderson Act. Every entity with an interest in facilitating the patent system and keeping down the costs of prosecuting patents should want to get behind this.