If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.
The line --of course patent lawyers will tend to have more pro-patent views than their bosses-- surprised LBE. Registered patent attorneys tend to be more realistic about patentability than "bosses." Back during the time of the Unocal patent, LBE noted the manager responding to a patent attorney: well, patent the damned thing anyway. [See IPT]
LBE once heard Menell speak at Temple, where Menell launched into the "transistor only for hearing aids" Lemley-ism.
Of this urban legend, see WHAT THE STORY OF THE INVENTION OF THE TRANSISTOR TEACHES US ABOUT 21ST CENTURY PATENT PRACTICE .
Also: Sometimes inventors do understand the significance of their invention! Menell's more recent comments, pushed by Lee, sound like an urban legend in the making.
Of Lee, see also:
**Menell has a piece (with co-authors) on SSRN entitled: Patent Case Management Judicial Guide