Sunday, June 12, 2011

The Law Follows Common Sense 99% of the Time (and So Should Intellectual Property Law)


"The Law follows common sense 99% of the time." This was and still is the mantra of The Hon. R Lanier Anderson, III, former Chief Judge of the Eleventh Circuit U.S. Court of Appeals. I had the incredible good fortune of clerking for Judge Anderson and he repeated this phrase often in his thick, Georgia red clay accent, prefaced by "My Granddaddy told me...." The Judge's father and grandfather practiced for life in Georgia, and with this mantra as his guide Judge Anderson has long been revered by judges and court personnel on the right, left, and center as an intellectual force on the court, and the very embodiment of Georgia's motto, Wisdom, Justice and Moderation.

We were taught as clerks by the judge to use common sense in appraising the legal arguments of lawyers, and this gauge was an incredible way of framing the questions presented, and looking at the Law through that lens serves as a barrier against frothy arguments and the intellectual pretzels in which lawyers get tied. Sometimes I refer to this radar, this sense that the Law is based on the ordinary sense of right and wrong, as the Common-Sense-ometer. One of the manifestations of this in the common law is the reasonable person. The reasonable person is a legal fiction of the common law representing an objective standard against which any individual's conduct can be measured. Generally the reasonable person applies to tort laws and its duties, but the reasonable person is invoked throughout the law. Inherently, the reasonable person has a usual share of the common sense of a reasonable person.

Another lawyer in a patent case expressed this recently about a case we were working on.  Defending a rather frivolous patent infringement suit, the lawyer observed that because our device was obviously not infringing, we were not "the side that has to be cute."  This was another way of saying that common sense was on our side.  Our job was not to let the other side use smoke and mirrors or confusing technical verbiage to obscure the fact that the "smell" test in the case went our way for anyone having ordinary skill in the art involved in that case.  In patent litigation, the reasonable person is a little more technically gifted, because the common sense barometer is based on a "person having ordinary skill in the art."  This is the reasonable technician, not the genius. In most cases a reasonable person can tell which side of the case "smells" bad, or which side has to be "cute" to fit a square peg into a round hole.  These cases make up 99% of litigation, and they should all follow common sense.  The other 1% often involves political or religious issues where there really is not much common sense to be found in the past cases, the language of the law, and the passions of the parties. 

Trademark bullying is a topic I have covered quite a bit recently, and once again common sense should prevail in looking at trademark infringement claims and whether there is a likelihood of confusion.  Most jurisdictions have a test for likelihood of confusion that delves into myriad factors related to the uniqueness of the mark, marketing, customer overlap, similarity of the product, and such.  None of this stuff should obscure the fact that the test is based on common sense, whether a reasonable customer is likely to be confused between the two marks or brands.  Not possibly confused, but probably confused.  Any judge or juror can look at a case in a few seconds and tell whether a person with any common sense ought to be confused by the marks. Generally that first impression is what the law should be, and the judgment should be, infringing or not.  The problem that has manifested itself with trademark bullying is the endless discovery and failure to award summary judgments in easy cases.  Most cases are obvious whether confusion is probable or not.  Courts should make decisions based on common sense and get rid of frivolous trademark bullying cases early.  They should also get rid of obvious infringement cases early and stop the infringing activity. 

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