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February 23, 2005

IP Gone Mad

Ken Jarboe directs us to a Steve Pearlstein column:

Lawyers Scare Firms Away From Good Ideas (washingtonpost.com): [W]hat if, rather than requiring us to book such trips well in advance to get a reasonable fare, the airlines were to offer a Powderhound Fare: for 50 percent more than a typical discount fare, payable by Nov. 1, you get the right to fly to any domestic ski destination whenever you want, as long a seat is available. The promotions could read: 'Don't pray for snow. Chase it!' It is possible that this 'idea' is actually an 'invention' worthy of a 'business method' patent -- the lawyers I consulted this week were divided on that. But even if the idea was unworthy of patent protection, many state courts have ruled that I would be entitled to royalties if I could show that the idea was novel and my interests in compensation apparent.

This is the sort of vague and open-ended legal exposure that strikes fear in the hearts of businessmen already inclined to think of the legal system as hostile and irrational. And not without reason. Cartoonists Thomas Rinks and Joseph Shields won a $42 million judgment from Taco Bell after a jury found that they, not an outside ad agency, were the source for the talking Chihuahua in the company's TV commercials.... As it turns out, however, such judgments are rare and usually involve cases in which companies' files are chock full of evidence of meetings held and proposals exchanged. But like the scalding coffee cup at McDonald's and the obstetricians driven out of practice in Pennsylvania, these cases have now been enshrined in the Tort Reform Hall of Fame and etched into the imaginations of corporate general counsels everywhere...

Posted by DeLong at February 23, 2005 10:56 AM