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March 22, 2005
How Does the US Justice Department Do Legal IP Analysis?
The following appeared anonymously in Greg Aharonian's PATNEWS. Reprinted by permission; the original author "worked at the Justice Department for several years" and does not wish to be identified further. I think this is interesting, particularly in light of MGM v. Grokster:
"When the Supreme Courts wants the views of the U.S. Government, they ask the Solicitor General (SG) for those views since the Justice Department has responsibility for the government's legal positions in court and the Solicitor General is the government's representative before the Supreme Court. The SG's response will be the ultimate response of the United States Government.
"The Criminal Division of the Justice Department is relatively new to the IP game, and they are not really experts at it yet. Their focus is VERY narrow. They really know nothing about patent prosecution or anything going on at the PTO. Not that they really represent that they do, but their focus is much more into catching copyright pirates on behalf of the movie and music industry. Their approach was much more akin to a prosecutor trying to make a name for him or her self, which maybe is to be expected since many of them have criminal law backgrounds and they joined to criminal division to catch crooks.
"The IP attorneys in the Civil Division and to some extent the Antitrust division have a more rounded IP background. I would hope the Solicitor General would look to them for advice more than the criminal division.
In formulating the response, the SG will seek the advice of the IP litigating section in the Civil Division, and the PTO's position. They will probably also ask the IP section in the Antitrust division at Justice and the FTC to comment since they have been involved in patent matters lately. Beyond that, they could solicit the opinion of just about any government agency they think is relevant. After they get all of these potentially conflicting opinions, they will attempt to distill them into a single position of the 'United States'."
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