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How can you be an anti-IP patent attorney?

I started practicing law in 1992, and patent and intellectual property law about a year later, in 1993, and became a registered patent attorney in 1994. Right around the same time, I also became anti-IP around that same time and started speaking and publishing about my anti-IP views around 1994–95.1

At first, I was cautious about revealing my views, as I thought it might hurt me in my career—with colleagues, bosses, or clients. I also thought that my status as a practicing IP attorney might add extra weight to the credibility of my arguments. I was mostly wrong in both. As for the former, it turns out that in over twenty years of being increasingly outspoken in my opposition to IP, I’ve yet to see any client or employer even notice or care, much less object. In fact my prominence on the political aspects of this issue has led to many situations where inventors or others contact me to ask me to do IP work for them. They know I’m against IP but don’t care; they assume I must know my stuff if I have articulate policy views about it. And some want a libertarian patent attorney, because they are libertarians. The only way it might have negatively affected my career is that I refuse to participate in the aggressive (offensive) enforcement of IP rights. But there are enough non-aggressive specialty niches in IP law that this self-imposed boycott is not a big deal: e.g., patent prosecution and counseling, licensing, trademark prosecution, copyright counseling, patentability opinions, and defensive patent litigation support.

I’ve also never noticed that people give my arguments much extra credence just because I’m a patent attorney. This could be because the field is so arcane and specialized that most laymen do not quite understand what it’s about. It also could be because I have always maintained that patent lawyers who are pro-IP have no special policy wisdom on IP, and that any intelligent person is just as able to form normative and policy views about this matter as the Inside-the-Temple “experts”. And I have always studiously tried not to “talk down” to laymen, or to “baffle with bullshit” by rattling off the minutae of legal details just to cow them or shut them up. I think my expertise has helped only insofar as it has helped me to be more aware of the way actual IP works so that my arguments are more legally precise, so that people reading my work don’t think I don’t even understand the system I am pontificating about (which often happens when I read the confused arguments of laymen in favor of IP).

In any case, over the years I keep getting a number of questions and criticisms, such as: “How can you be anti-IP if you are a patent attorney?” “Aren’t you a hypocrite?” “No client should hire you if you are anti-IP!” and so on. I’ve replied to these and others on a number of occasions, and when they recur, I usually repeat myself or find one of my previous replies. So here, I am collecting many of them into one location, in chronological order, so I can just send the link to this very post to people next time they ask! The most relevant ones are bolded.

  1. See Letter on Intellectual Property RightsIOS Journal 5, no. 2 (June 1995), pp. 12-13; also Intellectual Property Legitimate? (local copy), Winter 2000, Federalist Society, based on version previously published in Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3; Roderick Long: Bye-Bye for IP. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.