INTELLECTUAL PROPERTIES : The Cutting Edge: Computing / Technology / Innovation : Patent Lawyers Oppose Bryson Nomination

Any attorney knows it isn’t very smart to publicly criticize judges. But some intellectual-property lawyers are so angry over President Clinton’s nomination of William C. Bryson to the U.S. Circuit Court of Appeals in Washington that normal self-preservation has taken a back seat.

By most standards, Bryson’s credentials are impeccable: acting associate attorney general at the Justice Department, one-time clerk for the late U.S. Supreme Court Justice Thurgood Marshall and recognized expert in prosecuting organized crime.

But he doesn’t have any experience in intellectual-property matters--and the U.S. Circuit Court was created in 1982 specifically to resolve disputes over patents and copyrights. Many patent lawyers, in fact, regard this court as their personal domain, and they are in high dudgeon over Bryson and the overall pattern of appointments.

“It’s an outrage to see the circuit being used for political purposes,” fumes James E. Hawkes, a patent lawyer in Newport Beach. “The ship of technology that is pulling this country is being steered by a court with little experience in intellectual property.”

Some patent lawyers have gone so far as to call the court a political dumping ground, where nominations are made based on the President’s need to trade favors for congressional votes. Of the 11 judges currently on the court, only four have intellectual-property backgrounds.

“If we have someone (on the court) who can’t make the best, well-reasoned decisions, who doesn’t have insight into the intellectual-property system and how it fits into the world scheme, then it’s not good for the country,” said Michael A. Glenn, a patent attorney in Menlo Park, Calif. Two of the country’s most important exports--entertainment and technology--are endangered by intellectual-property ignorance on the federal circuit, he says.

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Then again, some say that too much expertise can be a dangerous thing.

“Patent lawyers tend to think that the more patents there are, the better, and they tend to think the same way when they’re judges,” says Robert Kohn, general counsel at Borland International, a Scotts Valley, Calif., software company that opposes more software patents.

The White House, for its part, says Bryson is one of the best attorneys in the country and points out that only 8% of the federal circuit’s caseload deals with intellectual property. Nearly half the cases concern federal personnel matters or suits against the government.