The Law is Not for Sale

"Can Patents Restrict Our Advice To Our Clients?" is the title of an American Bar Association Continuing Legal Education seminar for which I received an ad today in my email. I have to say, the very title floored me; I had never heard of such a thing as patenting the law. I contacted the CLE department of the ABA with this response. I believe I will be saying a lot more in the days to come; I'll have to understand this more, but I believe it to be a genuinely earthshaking development Please read the original ad to get more of a flavor; the headline links to it (right click and select "Open in a New Window" or "New Tab" to keep the Raving Moderate nearby ;).

This is my gut response to the title of this seminar. I will look into participating, but in the meantime, I'd appreciate it if you could forward it to the participants; perhaps it will influence the conversation.

If patents can "restrict our advice to clients", then people of no particular means will lose access to adequate, quality legal counsel, just as many have lost access to quality medical care and drugs. In theory, the law is the law and should apply to all people equally; it will become more like a vise if people have to pay extra in order to learn how to dance around its grip. The ability or inability to pay a lawyer creates enough disparity as it is. Perhaps right now we are just talking about sophisticated business methods, but there is a slippery slope in setting this precedent. The first thing that will happen is that I will not be able to save a client a substantial-to-her, but not huge, sum on her taxes, because it would be wiped out by having to pay the license for somebody's patent. The next thing will be that somebody will have to go to jail because the Public Defender's Office doesn't have patent licensing in its budget.

The ease with which people can patent just about anything these days seems likely to stifle innovation, rather than encourage it, as it gets to the point where you can't turn around without violating someone's patent. Patenting legal maneuvers will just mean that everybody, not just inventors and corporations, will start having to pay even greater tribute just to go through life.

I'm sure there's a First Amendment issue in here somewhere. Can we restrict legal speech in the interests of commerce? Shouldn't legal speech restrictions be subjected to strict scrutiny, since legal speech is at the essence of how the legal system operates?

Since I lack the time and funding to patent my arguments here, I suspect that someone else will do it first, and I will thus be silenced, as licenses on the patent will not be offered.

Sounds like a shocking development. Thank you for bringing it to my attention. It has also added a rather sour taste to my plan to go into estate planning. How can we non-patent lawyers practice law from day to day if we have to constantly be doing patent searches? Perhaps I am being naive, presuming too much, or being overly pessimistic, but as I say, this is a gut reaction, and I'd certainly like to know why it is incorrect, if it is. If I may sloganeer just for a moment, The Law is Not For Sale! I hereby claim at least a copyright on connecting this slogan with the issue of patenting the law.