I’m Not a Patent Lawyer, I’m a Problem Solver

By Heather Meeker, Melody Drummond Hansen, and Luann Simmons

©2018. Published in Landslide, Vol. 10, No. 4, March/April 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Emerging and growing companies don’t need patent lawyers: they need problem solvers. Innovators are focused first on growth and second on protecting their intellectual property. Forward-looking technology counsel can both anticipate potential pitfalls for growing companies and help established companies pave the way for new technologies by educating lawmakers and courts. Below, three technology partners share their experiences with emerging technologies and their tips for navigating the frontiers where law and technology meet, and they also share the points of view of some next-generation lawyers.

Open Source Opens Doors (By Heather Meeker)

“There’s a new SQL-type database product called MariaDB,” I told the CTO. “You might want to think about migrating to that.” Afterward, I thought about how odd a comment that was—a lawyer telling a CTO what software to use—and what a long strange trip it’s been from law school to practicing technology licensing law.

Back in law school ethics class, we were taught that lawyers inform and counsel clients about their cases but take a back seat when clients make decisions. Of course, nothing in law school prepared any of us for the practice of technology law in the twenty-first century. That I would be recommending a software infrastructure package to a Silicon Valley CTO would have been inconceivable to my law school ethics professor. But that’s the kind of thing I do every day, because technology licensing is not just about reading and analyzing and negotiating licenses—it’s about knowing the technology landscape.

For those readers who have the intestinal fortitude to be curious about the SQL database selection question, there is a brief explanation in the side box. Even if you don’t have the appetite to delve into that, it’s easy to see that the decision to use one software package or another is both a technical and legal decision. To make the right choice, you need to know the features (and bugs) of both the software and its license.

Day to day, my colleagues and I make this kind of recommendation a lot. Law is a service business, and to succeed, one has to go the extra mile. A common example is licensing due diligence for M&A deals. It’s one thing for a lawyer to say, “The target is using software X, and its use is not compliant with the license.” It’s another to say, “The target is using software X, and its use is not compliant with the license—but there is a competing product that’s available under a suitable license and it only costs $1,500 per year.” When a lawyer identifies a problem, the deal stops. When a lawyer solves a problem, the deal closes. Clients who are working on deals need problem solvers, not just problem finders.

Any transactional lawyer will tell you that clients expect us to know what is reasonable and customary, and not just what is in each side’s interest. In technology law, that is particularly important, because the law lags behind innovation. We are often working in a near vacuum of regulation and reported case law, so our clients need to figure out how business should be done, not just the way the law requires it to be done. That is where creative problem solving comes in handy.

I specialize in open source software licensing, which is an area full of both innovation and political rhetoric. Clients come to me to help them understand how to comply with the letter of licenses, but also how to follow community norms, avoid making impolitic statements, and candidly, often, how to stay off the radar. In law firm practice, we are often asked about our biggest “wins”—but mostly, when I do my job right, my clients avoid getting their name in The Guardian or Forbes. Practicing in this area has been an exercise in cutting a new career trail. When I first told those I worked for that I wanted to be a top expert in open source software licensing, they told me not to bother. There was certainly no playbook for being an open source licensing lawyer at the time. But I have always been most driven by what I find interesting, and open source is endlessly interesting, if sometimes a little crazy.

One counterintuitive habit I have developed in my practice is to give away a lot of free stuff. After all, that’s the open source way. Every time I tackle a new issue, I think, can I write an article on this for my clients and others? Can I create a checklist or model provision that will help other lawyers understand this issue? How can I share what I have learned? Because I am lucky enough to be working in a cutting-edge area of the law, I consider it a duty to share best practices with others. I have heard other lawyers complain that doing this is “giving away free legal advice.” Maybe so, maybe not, but that misses the point. Everyone needs others to kick around ideas. I am lucky to be part of a community of other lawyers—both in my firm and outside it—who feel comfortable discussing ideas and learning from each other.

Also, one of the best aspects of open source licensing practice is that I can help my clients collaborate with others in world-changing ways. Since about 2000, when the Linux operating system began to be accepted in earnest by industry, the level of collaboration among the biggest technology companies in the world has skyrocketed, and that’s mainly because of open source software licensing. If you are reading this article online, the technology used to deliver it to your eyes is most likely to include a majority of open source software, developed by thousands of individuals and companies who gave the results of their hard work away to the world for free, because they saw the wisdom of collaborating on the technology infrastructure, instead of dividing it up into fiefdoms. Between 2000 and now, the technology world has moved from toll roads to free ones, a revolution that often goes unnoticed because it is not obvious to the consumer. It’s satisfying to help my clients participating in this revolution—while managing their legal risks of course.

You Can Drive My Car; Tech Lawyers Can Drive Your Strategy (By Melody Drummond Hansen)

I first began to imagine a future of not driving when I failed my first driving test. That early experience may help explain why I am so enthusiastic about enabling autonomous technologies. Having spent more than a decade litigating technology cases, I also have been inspired by seeing firsthand what it takes for my clients to build world-changing technologies. When companies introduce new technologies, they often face challenges not only with consumer adoption but also with educating lawmakers and courts that may not initially understand the technologies or their promise. It’s my job to help clients bridge those gaps and navigate risks and rewards in uncertain legal landscapes.

Autonomous technologies are one of the latest examples of promising innovation developing in an uncertain legal landscape. As with any disruptive technology, innovators in the autonomous space can expect some of their first legal challenges to be facing regulatory hurdles. Most federal motor vehicle safety laws and standards were adopted decades ago and did not anticipate the development of autonomous technologies. State lawmakers likewise traditionally assumed that a human would be behind the wheel, and many state laws focus on licensing and insuring drivers based on their individual driving records. Now, lawmakers must reconsider whether there will be a human driver and even a steering wheel.

In the years it will take the law to catch up to autonomous technologies, in-house and outside counsel should monitor evolving regulations and decisions from the National Highway Traffic Safety Administration and state departments of motor vehicles to determine when permits are required for testing and deployment, and to comply with safety requirements. One tip for lawyers interested in autonomous technologies is to become fluent in software and hardware aspects of your clients’ products. Regulations can vary significantly depending on what aspects of the driving task are performed (or capable of being performed) by a human driver. Also, software-only products, open source, and after-market kits warrant analyses tailored to those implementations.

Another important step for autonomous technology companies is to develop forward-looking cybersecurity and data privacy plans. For example, proposed federal legislation requires manufacturers to develop cybersecurity plans, and certain proposals also include data privacy plans. Technology lawyers can assist by leveraging best practices from other industries, as well as by considering which of the many competing proposals for cybersecurity and privacy guidelines are most likely to be adopted by state and federal regulators as guideposts.

As growing numbers of autonomous vehicles hit the roads, companies also will need to be prepared to address novel questions in products liability and consumer protection laws. Technology lawyers versed in autonomous vehicle regulations will be especially equipped to assist because they will be most familiar with developing industry standards and best practices that impact liability and consumer messaging. As competition heats up, companies also can expect to encounter more traditional intellectual property disputes. While those roads seem well traveled, autonomous technologies will present new challenges for educating judges and juries unfamiliar with the technology. With preparation, technology lawyers will be ready to take the wheel.

Location, Location, Location (By Luann Simmons)

Emerging companies are not the only ones that face challenges when they introduce new technologies. Established market leaders often must explain their latest innovations to lawmakers and juries. One example that has featured prominently in my career is technology related to location detection and location services.

Studying physics as an undergraduate, I didn’t realize that I would one day be called to teach judges and juries the intricacies of how Wi-Fi and cellular technologies are used to provide location information. Even friends and family are interested to know how location information may be used in mobile services, like mapping and advertising even where providers and advertisers do not really “know” a user’s location. I learned early to dig deep into technology and embrace it. (I’ve also learned to love Keynote and PowerPoint—I have totally mastered drawing cell towers on slides!)

As location technologies gained popularity, they also came under increasing scrutiny from lawmakers, consumers, and privacy groups wanting to ensure that sensitive location data was protected and that users understood how location data was collected and used. Many recognized that location services were exceedingly convenient but at the same time found the unfamiliar technology just a bit creepy. Technology lawyers have figured prominently behind the scenes in such conversations because they know the technology well enough to accurately describe it—a critical skill if your clients may face tough questions from senators! And litigators’ experiences with judges and juries also give them a pragmatic appreciation of the importance of simplifying highly technical information for lay audiences that may be hostile or just bored.

As we grow to better understand the innovation around us, it is sometimes easy to forget that advocates once worked to persuade stakeholders that the technology was worth pursuing in the face of uncertainty. As one incredible example, as recently as 2006, a colleague had to convince a skeptical tribunal that in the near future, users would want and demand high-speed data as a feature on their mobile devices. The tribunal found it hard to believe that the average mobile phone user would expect to do more than make a phone call.

Recent Senate hearings pressing major technology companies on their efforts to curb “fake news” and ads paid for in rubles on social platforms are reminiscent of congressional exploration of location services years ago. Lawyers who are excited about technology and its changing impact on our lives will always be in the right place at the right time.

The Next Generation (By Andrea LaFountain and Katie Tague)

In a continually evolving technology landscape, the next generation of attorneys has particular strengths in serving technology companies. Many have grown up in the digital age steeped in technology. They are early adopters who provide value beyond their years of experience to colleagues and clients alike.

Flexible in their communication and working styles, the next generation offers creative and accessible legal services to a broad range of clients. They are comfortable communicating in real-time over secure chat channels and using clients’ cloud-based document management platforms, and they bring fresh perspectives on legal advice. Next-generation lawyers are especially well suited to understand the client needs of entrepreneurs who also are part of the next generation.

Next-generation lawyers also offer valuable perspectives for communicating with diverse audiences including juries and deal teams. We can better serve our clients and the profession by building multigenerational litigation and transactional teams. Plus, we can teach you how to make a credible Bitmoji or use the Stories feature properly on your Instagram. We also will tell you when those aren’t cool anymore.

Heather Meeker

Heather Meeker is a partner in O’Melveny’s Silicon Valley office. A 25-year veteran of technology licensing in Silicon Valley, she is best known for her work in open source software licensing and software copyright law. She is a member of the American Law Institute and a frequent writer and speaker on technology licensing law.

Melody Drummond Hansen

Melody Drummond Hansen is a partner in O’Melveny’s Silicon Valley office. A seasoned IP litigator, she thrives at the frontiers of technology and law, guiding established market leaders and emerging companies alike through patent, copyright, data security, and trade secret disputes, and helps clients clear both state and federal regulatory hurdles.

Luann Simmons

Luann Simmons is managing partner of O’Melveny’s San Francisco office. She leverages her experience in software development and computer science in complex technology litigation including patent and trade secret matters. The Recorder named Ms. Simmons to its list of “Women Leaders in Tech Law” in 2013 and 2017. With thanks to Andrea LaFountain and Katie Tague of O’Melveny’s Los Angeles and Silicon Valley offices, respectively—two leaders of the next generation of technology lawyers.