Daredevil: Yellow

Daredevil: Yellow is a fantastic retelling of Daredevil’s origin story by Jeph Loeb and Tim Sale, whose watercolor illustrations are a great match for the setting and mood of the story.  The subtitle is a reference to the color of Daredevil’s original costume.  It’s part of a related series by Loeb and Sale that includes Spider-Man: Blue, Hulk: Gray, and the (hopefully forthcoming) Captain America: White.  The story is framed as a retrospective by Murdock, relating how he came to start a law practice with Foggy Nelson, become Daredevil, and fall in love with Karen Page.

Nelson and Murdock’s first big break comes when the Fantastic Four approach the firm for representation.  We don’t get a lot of detail regarding the work, but Reed Richards describes it as “the lease on the Baxter Building, patents, that sort of thing.”  Foggy eagerly replies “We’d be happy to.  And anything else you might want to bring us, Mr. Richards.”  This is all incidental to the main storyline, but it raises an issue near and dear to my heart: the practice of patent law.

I. The Peculiarities of Patent Law

The practice of patent law can be divided into two broad categories: practicing before the Patent and Trademark Office and “everything else.”  Practicing before the PTO includes:

preparing and prosecuting any patent  application, consulting with or giving advice to a client in contemplation of  filing a patent application or other document with the Office, drafting the specification or claims of a patent application; drafting an amendment or reply to a communication from the Office that may require written argument to establish the patentability of a claimed invention; and drafting a communication for a public use, interference, reexamination proceeding, petition, appeal to the Board of Patent Appeals and Interferences, or other proceeding.

37 C.F.R. § 11.5.  That’s quite the laundry list, but basically, this means drafting and applying for patents, which can involve a lot of communication with the Patent Office, including some adversarial procedures in which a patent is opposed by another party.  It also includes giving advice and counsel regarding alternatives to patents, including those available under state law.  Note that it doesn’t include anything to do with trademarks; with one very narrow exception, only attorneys can do that, and any attorney can.  37 C.F.R. § 11.14.

“Everything else” includes other transactional matters (e.g. negotiating patent licenses) and litigation (e.g. suing for patent infringement).

Why does this distinction matter?  Because not just anyone—or any attorney—can represent someone before the Patent and Trademark Office, whereas any attorney can handle “everything else.”  Admission to practice before the PTO requires a technical background (broadly speaking: a bachelor’s degree in science or engineering or the equivalent, see here for the complicated details) and passing the registration examination, which is sometimes called “the patent bar exam.”  The examination consists of 100 multiple choice questions, mainly derived from the Manual of Patent Examining Procedure, the rulebook for patent examiners.  The pass rate for the exam is considerably lower than most state bar exams.

Notably, admission to practice before the PTO does not require a law degree or a license to practice law.  Non-lawyers who pass the registration exam become patent agents and lawyers who do so become patent attorneys.  Both have the same abilities to practice before the PTO, but only a patent attorney can handle “everything else.”  If a patent agent later becomes an attorney, he or she can pay a fee to have their registration changed to say “patent attorney,” but there is no functional difference.

II. So What’s the Problem?

Actually, there isn’t necessarily a problem.  Reed did say “patents,” not “patent applications,” so it could be that he’s talking about something like negotiating licenses or handling an infringement suit.  While patent attorneys often deal with the full spectrum of patent law, it is not uncommon for patent litigators or patent license specialists not to be patent attorneys.  So Reed could have a separate firm handle the work of obtaining patents (aka “patent prosecution”) and leave licensing and litigation to Nelson and Murdock.  Or Reed could even represent himself before the PTO, which is always an option even for someone who is not a patent attorney or agent, albeit not one that I would recommend, even for someone as smart as Reed.

Alternatively, Nelson or Murdock could be a patent attorney.  I couldn’t find any information on their undergraduate degrees, so it’s possible that one or both of them have the required technical background.  Statistically this is unlikely, since only about 7% of attorneys have a science or engineering degree.  R. Kim Craft and Joe G. Baker, Do Economists Make Better Lawyers? Undergraduate Degree Field and Lawyer Earnings, 34 J. of Econ. Educ. 263, 271 (2003).  Still, it’s possible, and Murdock clearly has an aptitude for mechanical engineering, since his billy club is chock full of clever gadgets of his own design.

III. Conclusion

It’s a pretty minor issue, but I couldn’t pass up an opportunity to talk about this particular quirk of patent law.  I’ll be taking a look at the other books in the Loeb & Sale series in the future, but until then I recommend checking out Daredevil: Yellow for yourself!

20 responses to “Daredevil: Yellow

  1. Huh. Interesting. I’ve been tempted to do something with patents ever since I discussed things with the USPTO during a job fair (the wages were actually excellent due to the combination of my engineering education and background, as well as several years of prior government service, but the only place they were hiring was Washington D.C. which meant either a lengthy commute or doubling the amount that I had to pay in living expenses). I hadn’t realized things were potentially so easy to become a patent agent.

    • The Patent Office is now located in Alexandria, VA not DC proper. I’m not sure if the cost of living in Alexandria is lower than DC, but I suspect it is. It might still be more expensive than where you are now, of course.

      Becoming a patent agent is relatively easy compared to becoming a patent attorney, but the employment situation is, as far as I know, not that much better—which is to say “very bad for anyone without significant experience.” There are fewer agents than attorneys, but there are also fewer job openings.

      The PTO is opening a satellite office in Detroit and has plans to open two new satellite offices in the future. Given what happened with the Detroit office, I suspect the locations for the future offices will be based on politics more than reason, however. Las Vegas is a leading contender, for example, apparently because Harry Reid has been lobbying for it. If it were up to me I would have chosen locations in major tech hubs, like Seattle, Silicon Valley, Boston, or the Research Triangle.

      • There have been noises of opening an office in Pittsburgh, where I live now, if for no other reason than that CMU churns out a considerable number of technical innovations each year, but I’ve heard nothing definite. I take it I probably shouldn’t hold my breath.

  2. TimothyAWiseman

    Notably, the “technical background” does not include mathematics. This directly affected my thoughts of becoming licensed to practice before the PTO since my bachelors is in mathematics. This though is hardly a major problem since there are several other intersting areas of law left and I still have some time before I graduate law school to think about it.

    • James Pollock

      Oddly, it also doesn’t include information technology, and for computer science, only a computer science degree from very short list of schools is acceptable. On the other hand, enough credit hours in sciences to qualify as an academic minor is also acceptable. I’ve a master’s in IT, and extensive industry certification, but my undergraduate degree is in liberal arts, so I’m not technically-literate enough to sit for this exam (besides the fact that it’s fairly expensive if you live on the west coast, as you need airfare and hotel in addition to the exam fee and prep materials (unless you are the sort of person who can read the MPEP and retain it sufficiently.)

      • People with computer science degrees can also get in via Category B: 40 semester hours in a combination consisting of the following: 8 semester hours of chemistry or 8 semester hours of physics, and 32 semester hours of “other acceptable coursework” in computer science (“courses that stress theoretical foundations, analysis, and design, and include substantial laboratory work”). The chemistry or physics courses have to be consecutive, include a lab component, and be designed for science or engineering majors. On top of all that, you have to send in not only transcripts but also “Copies of the catalog cover page showing the year, the page(s) describing the requirements for the major and complete pages describing the courses to be considered.”

        Category B is, to put it mildly, a giant pain (it’s how I was admitted). Personally I think having such a high barrier to entry for people with computer science and IT backgrounds is part of the reason why so many software patents are of low quality. It certainly isn’t helping.

        Why would you need airfare and hotel, though? You can take the exam at just about any Prometric testing center. There are a bunch in California, Oregon, and Washington.

  3. James Pollock

    “Why would you need airfare and hotel, though? You can take the exam at just about any Prometric testing center”
    They’ve improved (when I looked into it, your choices were to take the exam in D.C., or stay home and get a real job.) but the exam is NOT offered at any Prometric center. Despite the rather dense accumulation of patent agents, attorneys, and activity in my very community (which is home to Intel’s largest R&D facilities), I’d have to travel to a different state to take the exam… if the USPTO considered me qualified to sit for it, which it does not, despite two technical (but non-approved) degrees and a decade of teaching, in a technical field, at the college level. I debated racking up the 40 hours of science in the local community college, and I still might… paying the tuition and fees to earn an associate’s in physics would buy me at least a year of loan deferment…

    • TimothyAWiseman

      “I debated racking up the 40 hours of science in the local community college, and I still might…”

      I am also toying with the idea of going back and getting a second bachelor’s, but since I’m working full time and in law school I plan to focus on the JD first and then decide if I still want to go that route.

  4. James Pollock

    Here’s a question. The Chitauri used their equipment in public. Much of it appeared to be considerably advanced over human technology, but, potentially, some of the applications are currently being developed in R&D labs around the country. Did the Chitauri demonstrations destroy (or potentially destroy) the ability of American engineers from obtaining patents? Do they become considered “prior art” in the future? Would it be possible to obtain a patent by reverse-engineering any of it, or is the captured Chitauri tech in the public domain (even if we don’t yet know how to do it ourselves)?

    • That’s an interesting question. The law of prior art will change considerably when the prior art provisions of the America Invents Act take effect next May, but for now this is how it would play out, I think.

      From § 102(a): “the invention was known or used by others in this country … before the invention thereof by the applicant for patent.” The question is, do the Chitauri count as “others” or did the various people in New York “know” the invention?

      With regard to the former, it’s hard to say, but I would argue ‘no’ on the basis that the Chitauri are not legal persons and would be regarded by the law as mere animals. Thus, a human could reverse-engineer and patent their inventions in the same way that a human could, say, reverse-engineer and patent a chemical defense used by a plant (e.g. patents on naturally occurring insecticides found in plants).

      With regard to the latter: “The statutory language, “known or used by others in this country” means knowledge or use which is accessible to the public.”
      Carella v. Starlight Archery and Pro Line Co., 804 F.2d 135, 139 (Fed. Cir. 1986). That has a fairly broad meaning, but I think it’s safe to say that the invention was not accessible to the public while it was being used to destroy Manhattan. However, once the weapons fell into human hands they became accessible to the public (if likely only briefly before they were seized by the government). So that presents a problem for any would-be reverse engineer.

      Another problem is that the Avengers themselves used many of the Chitauri devices, including their guns and flying machines. The fact that they used them without understanding how they worked isn’t important, so long as they appreciated the purpose of the device and the use was not accidental.

      There is no grace period for § 102(a): a single instance of public knowledge or public use or by someone other than the inventor before the inventor invented the invention is sufficient. So while this may seem like pretty thin examples of prior art, they may be enough to preclude patentability.

      • If they were considered mere animals then technically speaking how can a state of war exist between the U.S. and them? Additionally, their clear ability to use this advanced technology suggests that mentally they are at least on the same level as humans.

      • The fact that individual Chitauri are not legal persons doesn’t mean that the United States could not engage in a defensive war against the Chitauri. A government can recognize a nation without giving its inhabitants the same rights as citizens or even humans. For example, in the past, the United States recognized nations like China but did not accord the Chinese the same rights as whites.

        In my view, the law is pretty clear that humans are the only creatures with rights, for better or worse. It would take a specific act of Congress to give legal rights to any other species. Note that many animals have legal protections, but none (apart from humans) have legal rights.

        So, for example, a chimpanzee being abused in violation of animal welfare laws cannot sue on his or her own behalf to stop the abuse because the chimpanzee does not have the right to do so. It certainly can’t bring an ordinary tort action. Instead, animal welfare laws typically criminalize the behavior, thereby allowing “the state” or “the people” to bring a criminal case against the perpetrator but not on behalf of the victim.

        Note that the fact that the chimpanzee doesn’t understand the legal system is not the problem. For example, a severely mentally disabled person has rights and can bring a lawsuit, typically with another person acting on their behalf. But the cause of action belongs to the disabled person, not the person acting on their behalf. Not so with the chimpanzee or any other non-human animal, at least as of right now.

      • Ken Arromdee

        I don’t think the argument about humans works. Like the question of whether the word “war” applies only to humans, we simply haven’t ever run into any sentient nonhumans so we’ve never had occasion to make the distinction. I suspect that if we were to run into any sentient nonhumans, the law would be quickly interpreted such that laws about people humans aren’t actually restricted to homo sapiens unless it was clear that the law was invoking a species distinction on purpose and not just using an at-the-time meaningless turn of phrase that later turned meaningful.

      • James Pollock

        Ken, while the law itself has not had to explore this area, science-fiction writers have been exploring these themes for almost a century (two, if you count “Frankenstein”).

        I agree that the law would likely rapidly evolve in the face of a need to do so (though probably not fast enough… law is backward-looking and not forward-looking) but I would expect two different paths… one for biological/alien intelligences and a different path for artificial ones. Heinlein explored the latter case in “Jerry was a Man”, recommended, and I’ll repeat my recommendation for “Little Fuzzy” in the case of the former.

      • TimothyAWiseman

        @Ken Arromdee and @James Pollock

        It is worth pointing out that this site has explored the implications of non-human sapience somewhat extensively before. Also, The Positronic Man by Asimov centers largely on the exploration of what it means to be recognized as human, and appropriately for this site does so partially through the use of court cases. On that note, thank you for recommending “Little Fuzzy”. I am far from done with it, but it certainly seems interesting.

        As for “the law would be quickly interpreted such that laws about people humans aren’t actually restricted to homo sapiens”. I suspect that until Congress stepped in to clarify with positive law, the case law would likely be all over the place. The term person for instance might be interpreted broadly, but even that is quite possibly to be somewhat situational. But it is harder to do that when talking about something that specifically refers to human, such as say the definition of murder in places like NRS 200.120.

        It is also possible that the courts, as they occassionally do when they acknowledge that they are modifying a common law rule, might declare that going forward Chitauri and similar aliens would be treated as human for legal purposes, but that looking backwards on events that occurred before the ruling, that would not be the case.

      • I’d forgotten the Chinese example (actually a bit embarrassing I took several classes on 19th century Asia). Considering the sheer impact the presence of extraterrestrial life would have on terrestrial politics I suspect that Congress would pass a law in a matter of months at the most.

      • James Pollock

        “Jerry Was a Man” was published back in the 1940’s, but is available here: http://www.willmorgan.org/Robert_A_Heinlein-Jerry_Was_A_Man.htm. (It’s a short story… Little Fuzzy is a novel (with two sequels, plus two semi-sequels (written by others after the original author’s death) plus a “reboot” that’s fairly new.
        (I didn’t mention it before, but both “Jerry was a man” and “Little Fuzzy” are oriented about legal disputes.)

      • Melanie Koleini

        The US has a long and sad history of not treating sentient beings as legal persons. It was called slavery. I know the law evolved as the US moved towards the civil war but I think I remember that slaves couldn’t testify in court or sue (at one time in history). If a slave was killed, the crime was considered to be against the salve’s owner.

        It’s been a long time since I took US history, so I may be remembering incorrectly.

  5. Murdock had sufficient technical know-how (in the early continuity of the series — I don’t know about “yellow”) to devise gadgets into his billy club like micro-recorders, a small folding shield, various spring-hinge pieces that allowed it to bounce aggressively, and otherwise move, sit up, roll over, play dead and come back to him when he whistled. (I may be exaggerating, slightly)

    In later continuity his club was re-built for him by other technicians like Stark, Ivan (Natasha Romanoff’s bodyguard) and Reed Richards himself (I think) But that happens to all of us — after leaving college the general skills atrophy as one becomes more and more specialized in particular technologies…

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