Are there ethical reasons for not "googling" your inventor client?

How should the IP profession view the availability of online information? Taking patents as our focus, access to on-line public information would appear to be a central component of the patent system. After all, the ability to search information, especially prior art, is crucial for maintaining the integrity of the system, especially about patentability (the fact that some patent attorneys may not want to carry out a search for tactical reasons is not the contrary). What's more, background information about the inventor and his company may be available to complement what is provided in face-to-face meetings. The only limitation on our ability to make maximum use of online information flows from the fact that there is too much of it. As such, at first glance, there does not appear to be any inherent constraint in the patent system to our use of public information.

Given this orientation towards the utility of information in the service of the patent system, this Kat read with great interest a recent article that appeared on reuters.com on 13 February. Entitled, "Is it OK for doctors to "google" patients?" the piece summarizes an article by Maria Baker and Daniel George, both connected to Penn State University, which recently appeared in the Journal of General Internal Medicine, focusing on the question of whether there are (or should be) professional standards that set limits on the extent to which a physician may carry out an online search about so-called personal aspects of his patient.

The default position appears to be that physicians should refrain from seeking such information, except in a narrow set of circumstances. The co-authors are said to identify 10 such situations where such "googling" is permitted, guided by two overarching principles:

(1) Per Baker: “the motivation is to protect patients and prevent harm"; and
(2) per Daniel: "there is something worth protecting in the physician-patient relationship," 

An example of where seeking out publicly available information was deemed proper involves a young woman who approached a physician, requesting to have both breasts removed, citing a long family history of cancer. The woman declined to undergo genetic testing. A genetic counsellor at the hospital searched the woman on the internet and discovered that she had been holding herself out as a cancer survivor and even raising funds on that basis. The physician informed the woman that he was not comfortable performing the surgery in the absence of the appropriate tests. To the contrary, the authors refer to a situation where a doctor who developed a course of action to improve his patient’s lifestyle, only to then search the patient via social media and find pictures of the patient "smoking a cigar". Here, the information only served to undermine the trust relationship between the doctor and his patient. Better that the search would not have been conducted.

The Reuters.com piece brings several expressions of reservation regarding even the limited scope of the right to search suggested by the co-authors. Thus, the president of The Hastings Center, which engages in bioethics, observed that inconsistencies in patient statements, or between the patient and relatives, are not grounds to search online about a patient, because "there is too much wiggle room." She went on:

"Why is the physician doing this? It is going to bring benefit to the patient, or is it something self-serving or out of personal curiosity?"

In the same vein, a 2013 policy statement from The Federation of State Medical Boards stated as follows:

"It instead can be linked to curiosity, voyeurism and habit. Although anecdotal reports highlight some benefit (for example, intervening when a patient is blogging about suicide), real potential exists for blurring professional and personal boundaries."

The metes and bounds of acceptable bioethical searching online about a patient are still work-in-progress. Still, it already raises for this Kat the question of whether there are insights that might be germane to the attorney-inventor relationship, if for no other reason that both relationships rest on the principle of professional privilege. The issue suggested is whether there are such ethical-professional norms of behaviour between the attorney and the inventor that might reach beyond the privilege so as to limit the scope of the attorney’s on-line inquiry about his client.

A possible answer of “yes” might focus on the trust relationship between the two. After all, a misrepresentation in a patent application might have perjury implications, arguing for caution on the part of the attorney. However, should the attorney became a Facebook friend of his inventor client, adding the inventor to one’s LinkedIn contacts, or simply “googling” the inventor’s name, with the result that the attorney is exposed to personal information that might impact on the general degree of trust between the parties, even if such information is not directly relevant to the patent application process itself? Or are the ethical concerns that arise between a doctor and his patient so fundamentally different from those of an attorney and an inventor that there should not be any similar kinds of restraints placed on seeking online information about the inventor?