Today, however, the situation has changed. Law firms, which once had little competition from law schools, now have to compete with dozens of other firms on every level of the legal market. For example, if an estate has a will, there are now hundreds of wills that could be litigated. If someone wants to market a patented product, there are now patent offices all over the country that will accept patent applications.
This has created a situation where the innovator or provider has become the king or queen of the legal market place. However, this benefit is also causing some unwanted problems. For example, a patent that was granted last year by the US Patent and Trademark Office was not granted for its original invention, but rather for the method of using the product. When this patent was awarded, it was not to the inventor, but to the patent office. In legal monopoly examples like these, the problem is not with the patent office per se, but instead with how the law is written.
There was a time when patent law was passed by the legislature. The idea behind the passage of these laws was to protect the public from “imperfect” innovations. Unfortunately, judges have grown to be too lenient toward patent lawyers and law firms, allowing them to create monopoly situations that benefit only the large firms that have the most money. Most law firms and universities would never voluntarily submit to a law exam that demanded a monopoly on their client’s patent. This means that most law firms would never voluntarily submit to a law exam that required them to build a library of books on patent law.
Additionally, the current trend in law firms is moving away from patent law. Since a majority of law firms are staffed by lawyers who already have patent attorneys on their staff, they will not need to train their own staff to be expert patent specialists. Additionally, the patent offices are awarding vast amounts of money for intellectual property that is simply considered to be worthless. By allowing the patent office to dictate what is valuable and what is not, the law firms are being forced to conform to the policies of the patent office.
One of the most common law firms practicing this monopolistic behavior is noted as Akin, Lamb, Reavis & Brown. This firm not only requests all parties to submit briefs based on the patent application as dictated by the USPTO, but they actually base the length of the briefs on the patent application! Additionally, when drafting their briefs, they make sure to include a “one-liner” – which is an explanation of why they believe the patent is valid. One could say that these law firms believe that the patent office needs to be overruled so that the patent can be granted at will.
Another one of the more common legal monopoly strategies is to file lawsuits and demand payments in advance of disclosing the details of the invention. Often, the inventors will refuse to disclose the details of the invention because they do not want to put a real damper on the entire process. As a result, these law firms will then assign corporate officers to the legal case and work closely with the patent attorneys to complete the lawsuit before disclosure. Again, once litigation has been completed, it is often discovered that the underlying technology was disclosed much earlier than the patent was granted.
Unfortunately, some patent attorneys are starting to use this tactic as well. These patent attorneys will seek out those innovators that have an original product or technology to bring to market. Once these products are available, they will bring a lawsuit against the companies that have the rights to those products. The result will often be a legal monopoly. Some of the legal monopoly examples include: pharmaceutical drugs, biotechnology products, e-commerce sites and utilities, trademarks and intellectual property protection. Other types of legal monopoly examples include: energy, medical devices, communications systems, transportation systems and electronics.
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