Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

This week I have the privilege of hosting the Blawg Review for the third time – I also hosted Reviews 133 & 173. For those who are not familiar with the Blawg Review, it is a roving, weekly round up of the prior week's legal blogs expertly orchestrated by the anonymous Ed. The Reviews are traditionally organized around a theme. For example, Securing Innovation's theme last week was Indigenous People's Day. This week's theme is my virtual day with Lord Stanley's Cup. For those of you who do not know, the Chicago Blackhawks (my Chicago Blackhawks) won the National Hockey League championship this year. The winner of the NHL playoffs gets the famed Stanley Cup. 

"Hockey in August?" you ask. Of course, not many people play hockey in August, even in Original Six towns. My local rink shuts down for the month of August and the Blackhawks are not even back in camp for a few weeks. But one of the many Stanley Cup traditions is that the summer after winning it, the players and key personnel from the winning team each get a day with the Cup. They take it home, eat Cheerios and even buffalo wings out of it, or whatever else they want. I grew up with hockey and have grown into a Blackhawks fan, although I grew up cheering for the winged wheel. Despite my efforts cheering for the Blackhawks, including attending much of the regular season and all but one home playoff game, the Blackhawks have not yet contacted me for my day with the Stanley Cup. I am sure the letter got lost in the mail. So, I am spending today with the Cup and sharing it with the legal blogosphere.

 

I will start the day with Chicago bloggers, who are presumably as excited about the Cup as me. At his Death & Taxes Blog, Joel Scheonmeyer is basking in the glow of the Cup and trying to get close to Hawks owner Rocky Wirtz to discuss pet trusts for the famous, hockey-loving Wirtz beagles. Brian Leiter questions U.S. News & World Reports' top law school rankings, but surely not the standings at the end of the Stanley Cup playoffs at his Law School Reports.  The Chicago Lawyer's Attorneys in Transition blog looks at writing sample issues for legal job applicants. An issue that many Blackhawks faced (well maybe highlight reels anyway) at the end of the season as the Hawks' Stan Bowman made the difficult decision to get next year's team under the dreaded salary cap.

 

Steven Tanner at the Chicago Family Law Blog asks whether California's same-sex marriage ruling will impact Illinois (or other states without such a ruling). No doubt as he takes his picture with the Cup he is proud of the Blackhawks for sending defenseman Brent Sopel to Chicago PRIDE Parade with the Cup. At the Becker-Posner Blog, Becker and Posner compare the US and German responses to the recession. No doubt this would help the Wirtz family who faced red ink this year despite a Cup win and a sky-rocketing franchise. Staying on the topic of the economy, Peter Zura looks at the recession's impact upon patent litigation at his 271 Patent Blog, while waiting his turn to kiss Lord Stanley's Cup.

 

Chicago lawyer Evan Brown at Internet Cases looks at copyright preemption issues in the context of a plagiarism database. Brown no doubt is confident that Patrick Kane did not steal his post-game-winning goal celebration from anyone. C-K Faculty Blog looks at an excellent law review article by IP professor David Schwartz regarding the citation of law review articles in judicial opinions. 

 

Leaving Chicago, Stephen Albainy-Jenei of Patent Baristas (go Blue Jackets?) looks at a Federal Circuit decision expanding drugmakers' protections against generics. Julie Fleming (an Atlanta Thrashers fan?) at the Life at the Bar blog no doubt appreciates the long journey these Blackhawks took to the Cup and the individual goals that propelled them to the peak of their craft as this week she compares legal business development to pioneers hiking the Oregon, California and Mormon Trails and challenges readers to create a list of twenty reasons you want to develop business. 

 

Kevin O'Keefe, at his LexBlog blog questions whether the ABA's leadership is ignoring their obligation to engage people through social media and is no doubt impressed by the Blackhawks very impressive and forward-thinking use of Twitter. And while Blawg Review is generally not about the host's analysis, if you want an example of an organization that has nailed using Twitter in both content and tone, check out @nhlblackhawks. At the [Non]billable Hour, Matt Homann (a fan of the dreaded Blues? Although I thank them for Red Berenson) takes social media advertising retro for an older crowd.

 

Vincent LoTempio stops cheering long for Buffalo's own Patrick Kane long enough for a very in-depth look at how inventions come about. Remaining in Buffalo, IP.com's Securing Innovation looks at the first U.S. patent in between conflicting feelings of pride for Kane and disappointment over the state of their Sabres.

 

Cordell Parvin at his Law Consulting Blog no doubt appreciates Stan Bowman's salary cap dance during the off-season and how it has kept hockey in the Chicago news when it would traditionally be preempted by baseball, as he suggests lawyers use bills to distinguish themselves with clients. And seeing the Cup is bittersweet for Parvin as goalie Marty Turco left his Dallas Stars this summer to defend Chicago's goal next year. As for me, I always welcome another Michigan Man to the Blackhawks. Staying in the south, Docket Report takes a comical look at the alleged false patent marking of a very old children's toy, but he agrees there was nothing false about these Blackhawks and their lightning fast offense.

 

From the south, we head to Canada, where hockey is religion. Eric Macramalla was too busy reviewing the legalities of the Kovalchuk contract arbitrator's decision at his Offside: A Sports Law Blog to spend any time admiring the Cup, but I suspect he may not be a Hawks fan. He does, however, offer some in depth analysis of the CBA and the arbitrator's decision. No doubt, Macramalla agrees that the Hossa contract is fine and that the NHL should not review that contract. At Law21, Jordan Furlong ponders how to kill a law firm. 

 

We dip back into the States to sip from the Cup with David Harlow who looks at the privacy and security of patient records at his HealthBlawg while he wonders if his Bruins can go all the way next year. And our final stop is also in Boston at Ilan Barzilay's District of Massachusetts IP Blog where he looks at an "IP soap opera" stemming from a jail sentence.  He does not have any comments on the Blackhawks free agency soap opera because like Harlow, he is preoccupied with how his Bruins are doing.

 

Next week's Blawg Review will be at Law is Cool, a blog focused on Canadian law schools where there are no doubt a few more hockey fans.  Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

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Banner & Witcoff's Tim Meece (from Chicago) and Ross Dannenberg (from DC), have created an intellectual property iPhone app that they call, "IP Lawyer."  At first, I have to admit I was skeptical, expecting it to be a more limited app heavy on promoting the firm.  I was wrong.  The app has easy to read and search versions of the necessary Federal Rules, as well as copies of all Local Patent Rules and the relevant sections of the U.S. Code, the MPEP and the C.F.R.  And in case that was not enough to get you to head to iTunes and download your (free) copy, it also provides the ability to search a database of U.S. patents and trademarks, as well as assignments for each.  This is an excellent resource that I expect to use frequently.

You can get IP Lawyer on iTunes (I searched Banner Witcoff and found it easily) or click here for more information at the firm's website.

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Next Monday, I have the honor of hosting my third Blawg Review.  For those that do not following Blawg Review, it is a weekly round up of the prior week's legal blog posts.  I follow an excellent review yesterday at IP.com's Securing Innovation.  It was a textbook Blawg Review incorporating legal blogs from all different specialties surrounding a them (International Indigenous People's Day).

If you want me to specifically consider your blog post for next week's Review, send it to me or click here for the submission page.

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The Farnsworth Invention, a play about the fight over patent rights to television broadcasting has left Broadway and come to the TimeLine Theatre, at Wellington and Broadway in Chicago.  I have to admit I have not had time to see the play myself.  But when I tell Chicagoans that I am a patent litigator, I an increasingly met with questions about whether I have seen The Farnsworth Invention and recommendations to see it.  And an excellent review of the play by the Chicago Daily Law Bulletin's Jerry Crimmins prompted me to write about it.  Crimmins' review is reprinted below with permission.  The play ends its run at the end of next week.  So, get to the TimeLine soon.  Tickets are still available.

 

Review: Play on patents will entertain those new to the story

By Jerry Crimmins
Law Bulletin staff writer
 

There's a play on the North Side about a spectacular invention and the fight over the patent between a hick genius and a New York corporation.

The play was written by the man who created TV's "The West Wing."

Yet hardly any patent or intellectual property lawyers in Chicago seem to be know about this play.

"The Farnsworth Invention," by Aaron Sorkin, is about the creation of television.

Formerly on Broadway, its Chicago premiere is at the TimeLine Theatre, 615 W. Wellington Ave., in the Wellington Avenue United Church of Christ. The play will run only through July 24 and must close, TimeLine says.

"I was unaware of such a play," said a member of the Chicago Intellectual Property Alliance (CIPA), a common response from attorneys contacted. The play has been here since April.

Another member of CIPA said he could "confirm that many patent/IP practitioners are not aware of this play. …"

"The Farnsworth Invention" combines elements of a docudrama and a biopic with the frenzy of a Marx Brothers movie.

The "play" element, meaning what children do, is prominent in this production, directed by Nick Bowling. Yet the thrust of the play is serious.

It tells the lives of Philo T. Farnsworth (played by Rob Fagin) and David Sarnoff (P.J. Powers).

Half the story opens at the turn of the century with the child Sarnoff — a Russian Jew who would become president of the Radio Corporation of America (RCA) — meeting the Cossacks.

The other half begins when Farnsworth, who was born in a log cabin in Indian Creek, Utah, meets his high school science teacher.

Farnsworth tells the incredulous teacher about Farnsworth's detailed plan for a way to transmit moving pictures through the air.

Teenager Farnsworth gives the science teacher a sketch, and the teacher saves it. That becomes a key element in Farnsworth's court fight with Sarnoff in the 1930s about the patent rights to television.

"The Farnsworth Invention" has almost 40 scenes, lightning scene changes, and 16 actors who play nearly 70 characters.

It takes place in the early days of Guglielmo Marconi's invention, radio, along with the sinking of the Titanic, Vladimir Zworykin's application for a patent in 1923 for "mechanical" television, and Farnsworth's application in 1927 for a patent for his "electronic television."

Farnsworth's cheap laboratory employs his friends, sister and brother-in-law.

Zworykin, a minor character here, goes to work for Westinghouse and then for the mogul Sarnoff at RCA.

Farnsworth's success in 1927 in transmitting the first electronic image to a screen is portrayed — great props here — with panic and verve by Fagin and all hands involved.

Farnsworth was then 21.

Sarnoff's vision of what was to come with both radio and television — his business prowess, drive to be first no matter what and incredible gift for self-promotion — is well-portrayed in Powers' strong performance.

Farnsworth (Fagin) and his wife, Pem, played by Bridgette Pechman, get the love story. Fagin makes Farnsworth an everyman genius.

The historical sweep of the play also takes in some early legal controversies involving radio, the 1929 stock market crash and its effects on Sarnoff, RCA, and, separately, Farnsworth.

The story covers Farnsworth's personal problems and a version of the later lives of Sarnoff and Farnsworth. Part of this sweep is achieved through narrations by the Farnsworth and Sarnoff characters.

The play is controversial. This reviewer suggests that anyone who goes to see it avoid all advance study of the lives of Farnsworth and Sarnoff and the court battle.

Sorkin's play seems intended to entertain and educate people who don't know the story and want to hear it. The needs of the stage and the compression of this story into two hours and 20 minutes, including intermission, requires dramatist's tricks.

Once the play has rolled over the viewer in the way the author intended, only then should one read the playbill (an extremely good story in itself), the Wikipedia entry on the play, and comments on the Internet by Farnsworth's descendants, Kent Farnsworth and Linda Farnsworth.

Chicago attorney Steven G. Parmelee of CIPA, who said that neither he nor many other IP lawyers were aware of the play, said the play needs to appeal to "the spouses of patent/IP attorneys … as they might be fearing a night trapped in a virtual CLE presentation."

In answer to that, this is a real, lively show by one of the leading dramatists of our time.

As a Chicago note, Allen H. Gerstein, a retired name partner of Marshall, Gerstein & Borun LLP, said he started with the firm in 1962 when it was named Merriam, Smith & Marshall. Name partner Samuel B. Smith "was former head of RCA's patent department" and "very familiar with the litigation and Zworykin, who Sam considered a genius," Gerstein said.

jcrimmins@lbpc.com

 

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Tuesday, the Senate confirmed Illinois Appellate Court Justice Sharon Johnson Coleman as the Northern District of Illinois's next district judge.  From 1996 until 2008, Justice Coleman served as a judge of the Circuit Court of Cook County, Illinois.  Between 1993 and 1996, she held the position of Deputy State’s Attorney and Bureau Chief for the Public Interest Bureau of the Cook County State’s Attorney’s Office.  From 1989 to 1993, Justice Coleman served as an Assistant United States Attorney in the Northern District of Illinois.  From 1984 until 1989, she was an Assistant State’s Attorney in Cook County.  Justice Coleman received her J.D. in 1984 from Washington University School of Law in St. Louis and her B.A. in 1981 from Northern Illinois University.

Welcome to the Northern District of Illinois bench Judge Coleman.

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Chief Judge Holderman recently gave the annual State of the Court address, concluding that the Northern District continues to be an active, growing district court. Civil case filings were up 6.2% from 2008 to 2009, and the Northern District remains in the top 10% of district courts for median time to disposition – 6.2 months. 

The Court began 2009 with one vacant judgeship – created by Judge Filip's March 2008 resignation. The Court ended 2009 with from after Judges Bucklo, Coar and Gettleman took senior status. In February 2010, Judge Manning also took senior status. Judge Feinerman was confirmed last month, reducing the vacant seats by one, but there could be five vacancies again at the end of July when Judge Anderson retires. 

The magistrate bench was also active. Judges Ashman and Keys shifted to recalled status. Judges Finnegan, Gilbert and Kim joined the bench. 

Finally, the number of registered e-filers is up 18% to over 25,000. And the daily filing rate is up 15% to an average 867 documents per day. 

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This post comes more than a week after the Supreme Court decided Bilski.  Last Monday when the decision came down I was struggling with what value I could add to the many reports that would fill the intellectual property blogosphere, and was leaning towards waiting a few days (which also allowed me to deal with various client commitments and new opportunities).  Then a good friend praised me for being the lone IP blog who had not said a word about Bilski on the day of the decision, after receiving an email of the blog's content for the day.  That comment cemented it for me.  I decided to give myself some time to think about the decision before posting here.  Of course, that means that much of what can be said already has been.  So, links to many excellent commentaries are below. 

At its heart, the Bilski decision continues the Supreme Court's patent law trend moving away from bright line rules and allowing the flexibility to adapt the law to future situations.  The business method in Bilski was struck down, but the Court did not strike down all business methods.  And the justices made clear that the machine-or-transformation test was not the only option for determining patentability, increasing the law's flexibility even more.  Having preserved at least some business methods, the Court obviously left software patents intact as well.  So, Bilski was not the death of business methods or software.  And just as after KSR (obviousness) and eBay (injunction standard), the decision injects uncertainty into the law that will take 18 - 24 months to sort out, first in the district courts and then more slowly in the Federal Circuit.  The one thing you can be sure of is that you will see lots of Bilski-based motions over the next year.  And I am sure I will be writing about Northern District Bilski decisions during that time.

Here is some of the commentary from across the blogosphere:

• 271 Patent Blog; 
   
• Chisum's Notes on Bilski;
   
• Filewrapper (noting that the Supreme Court issued grant, vacate and remand orders in two business method cases assuring we will get some realtively quick Federal Circuit guidance on the outlines of Bilski);
   
• IPWatchdog (arguing, among other things, that even in the post-Bilski world one could write claims that would capture Bilski innovation);
   
• New York Times Bits Blog (looking at the uncertainty the decision injects into litigation);
   
• Patent Docs (looking at Bilski's impact upon biotech patents);
   
• Patently-O (and here, here, here and here); and
   
• WSJ Law Blog.

 

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A group of Chicago trademark lawyers has set up the First Annual Chicagoland Trademark Practitioners Golf Outing on July 19, 2010. I have to admit that I am more of a runner and a swimmer than a golfer, but I can appreciate a day on a beautiful course with great people as much as anyone. And this promises to be exactly that. The event is being held in Northbrook at Mission Hills Country Club. The golf will be a four-person scramble format with lunch, a happy hour and an outdoor dinner with an awards reception. Registration costs $150 for an individual, $500 for a foursome or $50 for only the happy hour and dinner. Click here to register.

The events planning committee includes: Joe Norvell - Norvell IP, Kevin McDevitt and Rick Biagi - Neal & McDevitt, LLC, Jim McCarthy - McDonnell, Boehnen, Hulbert & Berghoff, LLP, Eric Gallender - McDonald's Corporation, and Paul Allen - Marksmen

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Late Monday night, the Senate confirmed Gary Feinerman as the Northern District of Illinois's next district judge.  Judge Feinerman was most recently a partner with Sidley.  He also served as a law clerk to Judge Flaum of the Seventh Circuit and then Justice Kennedy, after which he served in the Justice Department and as Illinois's Solicitor General.  Judge Feinerman fills the vacancy created when Judge Gettleman took senior status.

Welcome to the Northern District of Illinois bench Judge Feinerman.

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While the U.S. patent community passes another restless Monday without a Supreme Court decision regarding the future of business methods and maybe software patents in the Bilski case, I have been reviewing an excellent new prior art database from IP.com.*  IP.com's Intellectual Property Library is unique, to my knowledge, among free prior art databases for at least two reasons:  1) it is international; and 2) it searches not just patents, but also non-patent prior art.  The Intellectual Property Library also claims to be the first website outside China offering free access to China's State Intellectual Property Office patent data.  In my experience, China is a huge and often untapped prior art resource in U.S. patent litigation.

In addition to providing a significant amount of patent and non-patent prior art searching capability without any charge.  The Intellectual Property Library has a very nice interface and the search results appear to be very good.  IP.com promises that in addition to a classic full text search, it offers a sophisticated semantic search engine.  I cannot comment on the sophistication of the system, except to say that I was very happy with the quality and speed of my test searches.  Click here to try out the Intellectual Property Library yourself.  If you would like to see some sample results that IP.com has prepared, check out their Interesting Queries.

*  In the interest of full disclosure, I have used IP.com for professional search services before, and would expect to use them again.  But they have not offered me anything in return for this post, nor would I every accept anything were they to.  I am writing about it only because I like the tool.

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Team USA won the international Patent Cup Regatta earlier this month.  Team USA was skippered by Chicago patent attorney Leif Sigmond, a former Managing Partner at McDonnell Boehnen Hulbert & Berghoff ("MBHB").  This year's Cup was held in Sweden off the island of Marstrand.  Sigmond's crew included:  Marcus Thymian and Michael Gannon, MBHB attorneys; and Derek Minihane , in-house counsel at Intermolecular.  Team USA won five of their six races, all while building goodwill amongst the international patent community.  Congratulations Team USA!

The Cup was created in 1989 by a German patent attorney and a French patent attorney to foster camaraderie and relationships among IP lawyers internationally.  The Cup is held in a different country each year, with the host country organizing the event, providing vessels and setting the rules.  Chicago hosted the Cup in 2006, and Sigmond's crew won the Cup that year as well.

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I am proud to announce that the Chicago Bar Association has honored me, and the Blog, with the 2010 Herman Kogan Media Award.  I usually do not post about personal awards, but I am making an exception because this one stems from my work on the Blog.  I was the first winner of the Kogan Award's new online category.  The print and broadcast category recipients of the 2010 Kogan Awards were, respectively, The Chicago Reporter and Chicago's ABC 7 News.  I received the award for my series of posts on the Local Patent Rules at the end of 2009 -- click here to read the posts.  The award comes with a $1,000 journalism scholarship, which I have given to Loyola University Chicago's journalism school.

Here is a little bit more about the Herman Kogan Media Awards:

Established in 1989, CBA's Herman Kogan Media Awards competition honors local journalists and legal affairs reporting. Qualified candidates in the Chicago metropolitan area submitted entries in one of three entries: Print, Broadcast or Online. The competition celebrates the life of Herman Kogan, whose career spanned more than 50 years and included positions as an editor, reporter, feature and editorial writer, historian, literary critic and radio host.

Thank you to the Chicago Bar Association and the Herman Kogan Media Award committee for this honor.  And if you are interested in hearing more about the award and how I blog, click here for an interview LexBlog did with me after the award.

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The Northern District of Illinois sent the following invitation to e-filers for its eleventh annual Awards for Excellence in Pro Bono and Public Interest Service next Wednesday, May 26, 2010 at 3:00pm in the Dirksen courthouse:

 

 

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Late last month, the Senate Judiciary Committee unanimously approved President Obama's recent appointments to fill two of the five pending or scheduled vacancies on the Northern District of Illinois bench.  Sharon Coleman and Gary Feinerman now await confirmation by the full Senate. 

President Obama has now nominated Assistant U.S. Attorney Edmon Chang to fill the third of the five vacancies.  Chang started his career as a Northern District of Illinois clerk for Judge Aspen and then as a Sixth Circuit clerk for Judge Ryan.  Chang's bio from Senator Durbin's press follows:

Chang has served as an Assistant U.S. Attorney in the Northern District of Illinois since 1999, and he is currently the chief of appeals. He previously worked as an associate at Sidley Austin in Chicago, and as a judicial law clerk to Judge Marvin Aspen in the Northern District of Illinois and Judge James Ryan on the U.S. Court of Appeals for the 6th Circuit. He received a Star of Distinction award from the Chicago Crime Commission. He has served as an adjunct professor at Northwestern University law school, where he graduated with honors and served on the law review.

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My latest IP for Your Business column has been published in the Southeast Texas Record, and its sister publications the West Virginia Record and the Madison (Illinois) Record, focused upon crafting an effective social media policy for your business.  With the Record's permission I am reposting the article on the Blog.  Click here to read the column at the Record.  And if you are an executive or business owner that is reading this and thinking that you do not need to worry about social media because you do not allow, read the article.  It will give you some pause and may change your mind.   Here is the article:

Social media is a terrifying unknown for many businesses. There are countless opportunities to lose control of your corporate message. And as I have discussed before, there are new and varied ways to have your trademarks and brands stolen or diluted.

But an equally serious concern is what your employees are saying about your company. Every employee is now potentially an unsupervised spokesperson for your company twenty-four hours per day, 365 days per year. And each of your employee's unapproved statements is being categorized by search engines and forever identified with your company on Twitter, Facebook, personal employee blogs and other third party sites.

How does a reasonable company react to each employee being turned into an unregulated source of public information? Some are paralyzed. Others ban all use of social media related to the company. This is a facially reasonable approach.

You no longer have to worry about your employees' intentional statements about the company. But there are two significant problems with this approach.

First, you will drive some users underground. They will continue generating public content, but will attempt to do it anonymously. Of course, you can generally find them, but that can backfire as a public strategy, and you may not find them before damage is done, intentionally or accidentally.

Second, your employees likely see a distinction between their personal and work lives that may be far less clear than they realize. For example, an employee might post the following on Facebook and Twitter:

"@EngineerJim is sick as a dog and not thinking clearly, but working through it so that I have enough personal days for Orlando next month."

It is an innocent post by a good employee who is making a common mistake. But if a customer that has a big deadline that day is part of Engineer Jim's social network, your customer may see things differently. And the results could be even worse if an employee accidentally tweets a detail of a confidential project on the date of a key product launch.

The safest approach to social media is to allow your employees to use social media as part of a broader corporate social media policy. Working with counsel to develop a comprehensive social media policy will protect your company and allow you to harness the value of employees spreading the message of your company's value and benefits. Here are the broad outlines of such a social media policy:

1. Make it Clear

The policy must be clear to be effective. So, write in plain English. Whenever possible, use examples of acceptable and unacceptable postings. Examples help guide your employees, sometimes more than the written policies. But make it clear that the examples are not comprehensive.

2. Allow for Questions

Social media changes quickly, and your policy cannot keep up with it in real time. So, provide a contact for questions. And because social media is fast-paced, commit to getting answers to most questions within a few days or at least a week.

3. Identify What is Allowed

Make the rules as clear as possible, and, again, use examples. Identify whether postings may occur at work, on breaks, or never doing work hours. Lay out what types of posts are off-limits as work-related, such as the Engineer Jim example above.

Determine whether an employee can have a blog about the company or within the employee's job area. On one hand, it is easiest to exclude these blogs. But before doing that, look at other companies like Sun Microsystems and Microsoft that have successfully allowed employee blogs. If you do allow blogs about the company, consider requiring that employees register the blogs. A registration requirement makes sure you know which employees are blogging and allows you to follow what they write. In addition to being a valuable marketing tool, following employee blogs can be an excellent indicator of employee issues and concerns.

4. Develop a Review Process

As with all things, mistakes happen. So, prepare a plan for dealing with any objectionable or harmful content posted by employees. Identify how quickly content must be removed upon your request, and outline any appeal process. Also, make any consequences for publishing objectionable or harmful content clear.

5. Give Someone Oversight Responsibility

Identify someone, perhaps a General Counsel or even someone in Human Resources, to administer and oversee the policy. Giving an individual ownership and responsibility insures that the program does not become a forgotten section of the employee handbook. That person should also be responsible for setting up a variety of searches to identify any internet or social media mentions of the company and its brands.

Developing this policy takes some work, but it will pay dividends in terms of employee satisfaction, message management, and preventing social media accidents. And it will allow your company to harness more of the value of social media and the internet at a relatively low cost.

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My latest IP for Your Business column, published in the Southeast Texas Record, and its sister publications the West Virginia Record and the Madison (Illinois) Record, focused upon protecting your company from the often overlooked danger of copyright infringement.  With the Record's permission I am reposting the article on the Blog.  Click here to read the column at the Record.  And if you are an executive or in-house counsel that is reading this and wondering how to protect your company from copyright infringement issues, the article provides a framework for doing just that:

You likely spend significant resources making sure you do not infringe your competitors' patents, trademarks and copyrights. No legitimate business would intentionally copy its competitor's manuals, or confidential business plans.

But despite that, many businesses are unknowingly infringing a wide range of copyrights each week as a part of their employees' normal corporate activities.

A media relations associate may photocopy news articles about the company or its competitors and distribute them to key executives who require the information. Another may add key articles to board books in preparation for a board of directors meeting.

A sales director may make a company-focused parody of a popular song to rally the sales force and boost sales. Or an engineer may copy a chapter or two of a useful engineering text.

In each of these cases, if you asked, the employee would be surprised to learn they were infringing a copyright.

But it is not just the infringement; they are also exposing themselves and the business to significant liability. And your employees would be shocked to learn that no matter how slight the infringement, the maximum statutory damages for infringing a single copyrighted work is $150,000. That's $150,000 for copying a single article.

Even more shocking to most people is that forwarding a newspaper article via the Internet for business purposes is also generally an act of copyright infringement.

It is easy to imagine the all-too-common scenario. You, as your company's president or general counsel, receive a letter demanding that the company cease and desist its infringement, in this case the alleged forwarding of an e-mail newsletter for which the company had only purchased a single use license.

After some digging, you learn that the forwarding was done by Jim in sales, at the direction of his immediate supervisor Sue.

Both Jim and Sue are floored. All they did was forward copies of an e-mail newsletter that they had legitimately purchased, and that their entire team needed.

Unfortunately, neither Jim nor Sue appreciated that forwarding the publication was only allowed if they purchased a group license.

Because they had forwarded one copy a week for 20 weeks, the company's potential infringement was $150,000/weekly copy or $3 million.

Most of all, the entire incident could have been avoided if the company had implemented a copyright compliance program. When I put on copyright compliance programs for clients, they are routinely amazed at how inexpensively and quickly we are able to both fix current issues like these and prevent future problems before they happen.

While you should consult a qualified lawyer to make sure your copyright compliance program is comprehensive and correct, here are the basic steps that are required:

1. Audit copyright use & policies

Start by auditing your corporate use of copyrighted materials.

Depending upon your company's size, you can do one company-wide audit or do audits by division or product line. Consider how you internally and externally use third party publications like trade magazines and newspapers.

Are you routinely photocopying copyrighted material to distribution lists? Do you pdf and forward copyrighted materials?

Do you have a corporate policy in the employee handbook explaining how you expect employees to handle copyrighted materials? If you do, when was the last time you reminded your employees of it?

Do you have reminders posted at copy machines and pdf stations?

Also, look at how your employees use the Internet. Forwarding links is generally fine, but copying and pasting Internet content can get you in trouble.

2. Educate

Once you have a realistic understanding of your corporate copyright use and any areas of concern, you need to educate your employees about copyrights.

In my experience, a presentation made directly to your employees in small groups of no more than 20 is exceptionally effective.

By laying out the copyright laws and the consequences of breaking them for the employees themselves and the company, you will accomplish two things: 1) you quickly stop some unintentional copyright infringement; and 2) copyright issues that you may not have identified in your audit rise to the surface.

It is critical that as part of your employee education you give employees a way to raise private questions about potential copyright issues.

When I give copyright compliance seminars, I have found that one series of 90 minute client-to-employee presentations can lead to two to three days of identifying and resolving potential copyright issues with the employees. But it is three days that can remove millions of dollars in future corporate liability.

3. Ask permission

Ask permission. This is the simplest step of a copyright compliance program and perhaps the least followed. When you need to use copyrighted material, ask permission first.

If you ask the copyright holder for permission to use, forward or reprint their material they often agree. More often than not they are so happy that their content is useful to you that there will be only a moderate charge or none at all.

The simple act of seeking permission will significantly reduce your copyright risk footprint.

4. Consider a Copyright Clearance Center License

If you find that your business requires employees to internally copy, distribute or forward copyrighted content like newspaper and magazine articles or textbooks, consider a Copyright Clearance Center ("CCC") license.

The CCC was created by a group of copyright holders to license "incidental" use of their copyrighted content.

Those copyright holders that join the CCC are paid a portion of license fees from the CCC licenses. In return, the licensees are free - depending on the particular license chosen - to copy and forward content that is part of the CCC.

The license is priced based upon the size of your organization and gives access to a significant amount of copyrighted content.

5. Rinse, lather & repeat

Finally, do not just set up your copyright compliance program and forget it. Continue to watch for copyright issues. Make sure to continue employee education.

At least every year, remind employees of your corporate copyright policy by memo or e-mail. Offer all new employees your copyright compliance program, as well as offering a periodic refresher for current employees. Post reminders of your copyright policy at copy machines and pdf stations where accidental infringements can be prevented.

The more you incorporate copyright compliance into the fabric of your company, the safer the company will be from the expensive threat of copyright infringement.

R. David Donoghue is an intellectual property litigation partner with Holland & Knight LLP in Chicago. He can be reached at (312)578-6553 or david.donoghue@hklaw.com.
 

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A few weeks ago, I discussed how the Northern District of Illinois had become the false patent marking capitol of the world (okay, the United States) and how the Local Patent Rules may be playing into it. But Congress may be stepping in to limit false patent marking suits – click here for a Patent Docs post showing that similar amendments have been introduced in both the House and the Senate patent reform bills. The current versions of the amendments would require that false patent making plaintiffs have suffered competitive injury. And most significantly, the amendments would apply the standing requirement to both pending and future false patent marking cases. If passed and signed into law, these amendments would effectively end the vast majority of the 100+ false patent marking cases filed this year, including more than 50 filed in the Northern District of Illinois.

The Public Patent Foundation – a false patent marking plaintiff itself – has come out in opposition to the amendments. Presumably, most industry segments support the competitive injury requirement which still gives the false patent marking statute plenty of teeth.

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LegalMetric Research has been running an interesting series of reports on nationwide patent litigation statistics by district. And in each case, the Northern District remains among the top patent district courts. 2009 was the rare year that the Northern District slipped out of the top five districts in terms of filings, but it only fell to sixth. And the combination of the new Local Patent Rules and the false marking cases will change that significantly for 2010 (more on both of those issues in the next few weeks). Here are the top ten districts by the number of patent suits filed in 2009:

1. C.D. California

 

2. E.D. Texas

 

3. D. Delaware

 

4. N.D. California

 

5. D. New Jersey

 

6. N.D. Illinois

 

7. S.D. New York

 

8. S.D. California

 

9. D. Massachusetts

 

10. E.D. Virginia

 

The Northern District is also one of six districts that produce half of all claim construction decisions. Not surprisingly, the Eastern District of Texas, the Northern District of California and the District of Delaware produce the most, with the Northern District of Illinois, the Southern District of New York and the Central District of California filling out the six. And these six districts also issue 43% of all reexam stays.

 

Finally, Judge Pallmeyer is the lone Northern District of Illinois on the list of top 30 patent judges by the number of 2009 patent cases assigned to them. Pallmeyer came in at number 23. The top five spots were held by Eastern District of Texas and District of Delaware. It is not surprising to see only a single Northern District judge on this list because the bench is relatively large, in particular compared to some of the other top patent districts like the Eastern District of Texas and the District of Delaware. But more Northern District judges will likely be in the top 30 next year because of increased filings through the first quarter, as well as the fifty or so false patent marking suits filed in the Northern District beyond the usual patent cases.

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President Obama announced a couple of nominations this week impacting the Northern District of Illinois and the national patent bar.

First, President Obama appointed WilmerHale partner Edward DuMont to the Federal Circuit.  DuMont clerked for the Seventh Circuit's Judge Posner and was an Assistant to the Solicitor General where he briefed and argued Supreme Court cases.  DuMont currently has an appellate practice with a considerable focus on patent and intellectual property issues (click here for DuMont's firm bio).  DuMont also spent a year working for a law firm in Bangkok, Thailand.  DuMont's Supreme Court and varied appellate experience make him a very interesting choice to take Judge Michel's place on the Federal Circuit bench.

Second, President Obama has nominated the Northern District's Deputy U.S. Marshall Senior Inspector Darryl McPherson to become the Northern District's next U.S. Marshall.  McPherson has served as a Deputy U.S. Marshall since 1999 and won a Special Recognition award for his service as lead Deputy Marshall for Judge Lefkow. 

Both nomination must be confirmed by a vote of the U.S. Senate. 

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The Northern District and the Federal Bar Association are seeking nominations for excellence in pro bono and public interest work. Nominations should be based upon work performed in civil cases before the Northern District which are no longer pending. Nominations should include:  the name and address of the nominee; a brief resume; the complete case title; case number and judge for each case; the work done by the nominee on the cases; and the brief summary of the reasons you believe the nominees pro bono work has been outstanding. 

Send nominations via email by next Wednesday, April 14 to ProBono2010_ILND@ilnd.uscourts.gov.  Contact the Chambers of Chief Judge James F. Holderman with any questions.

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This is a reproduction with permission of an article written by Bob Ambrogi about issues with joint defense agreements, in particular with a single firm representing multiple parties.  While joint defense agreements are often valuable for the parties involved, they also have important issues which every defendant should be aware of before entering such a representation.  Bob interviewed me for the story and quotes me several times based upon my experience with joint defense relationships.

Joint Defense Pacts Pose Pitfalls

 

 

By Robert Ambrogi

 

Robert Ambrogi is the only person ever to hold the top editorial positions at both national U.S. legal newspapers, the National Law Journal, and Lawyers Weekly USA. An experienced attorney, ADR professional, writer and legal technologist, Bob formerly served as director of the Litigation Services division at American Lawyer Media.

 

Facing increases in litigation and decreases in legal budgets, corporate defendants in patent and trademark lawsuits are more regularly employing a tactic most would not have dreamed of a decade ago. Rather than fight these cases single-handedly, they are joining together and hiring a single law firm to represent them as a group.

 

Joint representation agreements make sense from an economic standpoint and even, in many cases, from a strategic standpoint. But when it comes to the hiring and use of expert witnesses, joint representations require special precautions.

 

The potential pitfalls regarding experts are many. These cases pose dangers of disputes over practical issues such as which expert to hire, who employs the expert and who pays for the expert. On a far-more serious level, these arrangements can increase the potential for conflicts of interest and make it more difficult for parties to maintain work-product privileges and client confidentialities.

 

That said, many of these risks can be avoided, lawyers say, by clearly spelling out roles and responsibilities at the outset of the joint representation and by maintaining open channels of communication throughout the representation.

 

Possibility for Conflict

 

Joint representation agreements are a step beyond the more common joint defense agreements. In the latter, separately represented defendants work together to coordinate all or part of a defense. Under a joint representation agreement, separate defendants come together in a single defense mounted by a single law firm.

 

Under such an arrangement, one obvious area of possible conflict is in coordination of the expert witness. Paul W. Reidl, an intellectual property lawyer in California and the former president of the International Trademark Association, recalls an example he observed in a case.

 

Two defendants operating under a joint representation agreement hired a marketing expert to provide testimony on market operation and performance. "One defendant had a very clear view about what that report should and should not cover," Reidl says. "The other defendant wanted something far different."

 

For the most part, the two defendants were able to work out their differences between themselves and outside the presence or knowledge of the expert. But there were times when their tactical dispute spilled over into meetings with the expert.

 

"As a result of that conflict, the expert report was viewed as OK but sub-optimum by both parties because it was a compromise approach to the problem," he says. "At the end of the day the defense prevailed so things worked out well, but it was a real headache to get the expert report together."

 

Issues Matter

 

In patent cases, the potential for problems will vary depending on the relationships among the parties to the joint representation agreements and the nature of the testimony to be offered by the expert.

 

"A lot depends on how the groups of defendants are related," observes R. David Donoghue, a patent litigator with Holland & Knight in Chicago. "If the defendants are a supplier and its customers, and the cases arise out of the same accused product or process, then the potential for conflict is minimal."

 

"But if the defendants that enter into the joint agreement are different manufacturers of a category of products, then you can face complex issues as an attorney representing these different parties," Donoghue believes.

It also matters whether the expert's testimony relates to the invalidity of the patents or to establishing non-infringement, says Donoghue, who has written about these issues on his Chicago IP Litigation Blog.

 

Defendants can more easily share an expert to testify with regard to invalidity, he notes. "That expert is not focused on the accused product, but is looking at the prior art. That is generic to the defendants." But in the non-infringement portion of a case, there may be an element that, if construed a certain way, suggests that some defendants do not infringe but that others do.

 

Advice from Lawyers

 

The best way to avoid problems with experts in joint representation matters is to anticipate and address them up front, Donoghue advises.

 

"Do the upfront technical analysis to understand the infringement claims and potential positions and claim constructions as best as you can. You want to avoid the potential for conflict, because conflicts tend to arise at times when they are most difficult to deal with – in the weeks before discovery closes or before the expert's report is due."

 

It is also important, at the outset of the joint representation, to spell out in writing the ground rules for hiring and supervising expert witnesses, advises Joseph C. Gioconda, an intellectual property lawyer in New York City. "All the parties to the joint defense agreement and their respective counsel must work out in advance who is going to be the point person with the expert."

Gioconda further suggests that the parties hold periodic conference calls outside the expert's hearing to discuss the status of the expert's work and any issues of concern.  

 

If Conflicts Arise

 

If conflicts do arise over the course of a joint representation, one way to deal with them may be to have separate teams of lawyers within the same firm work with separate experts, Donoghue suggests. Alternatively, it may be possible to use multiple experts and still coordinate them through a single counsel.

A variation on this would be to hire one expert to address the primary issues in common among the defendants and then hiring separate experts to address discrete issues faced by individual defendants, recommends Erin B. Moore, a litigation partner with Green & Green in Dayton, Ohio.

Still another approach is for the defendants to hire a single firm to represent them in the litigation but to have their own, separate counsel. Paul Hletko, a patent attorney at the Cardinal Law Group in Chicago, says this arrangement allows potential competitors to enter into joint defense agreements while simultaneously protecting their trade secrets and other competitive information.  

Direct and open communication with clients is the surest way to avoid problems under a joint representation agreement, lawyers agree. "Spend the time with the clients to make sure they understand the relationship," Donoghue says. "Particularly in the representation of multiple defendants, write down the understanding and agreement so no party is confused."

---

This article was originally published in BullsEye, a newsletter distributed by IMS ExpertServices. IMS ExpertServices is a full service expert witness and litigation consultant search firm, focused exclusively on providing custom expert witness searches to attorneys. We are proud to be the choice of more than 95 of the AmLaw Top 100.

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This Friday, March 5, 2010, the Northwestern Journal of Technology & Intellectual Property hosts its Fifth Annual Symposium. The Symposium, titled "New Rules for a New Day," includes the following sessions:

• The Patenting of Social Interactions: Bilski Before the Supreme Court - a panel discussion on the Bilski case, what is at stake, and the Supreme Court's options featuring Professor Matthew Sag of the DePaul University College of Law; Professor Joshua Sarnoff of the Washington College of Law at American University; Professor Jonathan Masur of the University of Chicago Law School; and Daniel Williams, a Partner at McDonnell Boehnen Hulbert & Berghoff LLP;

• Sharon Barner, Deputy Under Secretary and Deputy Director of the U.S. Patent and Trademark Office will provide the luncheon keynote on "Strategies for the USPTO: Ensuring America's Innovation Future";

• Trademark and Copyright in the Days of Internet: The Google Influence - a panel discussion on the ramifications of the Google Books and Google AdWords cases and the protection of IP in the fluid landscape of the internet featuring Michael Baniak, a Partner at McDonnell Boehnen Hulbert & Berghoff LLP and Professor Matthew Sag of the DePaul University College of Law;

• Who Defines the Law? USPTO Rule Making Authority - a panel discussion on recent court challenges to the USPTO's rulemaking and interpreting power, including the Cooper Technologies, Tafas, and Wyeth cases featuring Professor James Speta of the Northwestern University School of Law; Patent Docs author Donald Zuhn, a Partner at McDonnell Boehnen Hulbert & Berghoff LLP; Nicholas Zovko of Knobbe Martens Olson & Bear LLP; and Professor Jonathan Masur of the University of Chicago Law School; and

• Redefining "Free": A Look at Open Source Software Management -- a panel discussion on the pitfalls and issues that arise when open source code is included in a deal featuring John Hines, a Partner at Reed Smith LLP; Jon Christiansen of EscrowTech International Inc.; Alfred Hanna, a Partner at Reed Smith LLP; and Joseph Herndon, a Partner at McDonnell Boehnen Hulbert & Berghoff LLP.

More information is available at the Symposium's website. Registration for the Symposium is free. CLE credit will be available to attendees for a fee of $200.

 

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This week President Obama appointed Illinois Appellate Court Justice Sharon Johnson Coleman and Sidley Austin partner Gary Scott Feinerman to the Northern District of Illinois bench.  Here is biographical information from President Obama's press release:

• Justice Sharon Johnson Coleman sits on the Illinois Appellate Court in Chicago, a position she has held since 2008.  From 1996 until 2008, Justice Coleman served as a judge of the Circuit Court of Cook County, Illinois.  Between 1993 and 1996, she held the position of Deputy State’s Attorney and Bureau Chief for the Public Interest Bureau of the Cook County State’s Attorney’s Office.  From 1989 to 1993, Justice Coleman served as an Assistant United States Attorney in the Northern District of Illinois.  From 1984 until 1989, she was an Assistant State’s Attorney in Cook County.  Justice Coleman received her J.D. in 1984 from Washington University School of Law in St. Louis and her B.A. in 1981 from Northern Illinois University.
   
• Gary Scott Feinerman is a partner in the Chicago office of Sidley Austin LLP, where he practices in the general litigation and appellate practice groups.  He received his B.A., summa cum laude¸ from Yale College in 1987 and his J.D. from Stanford, where he was a member of the Order of the Coif and the Law Review, in 1991.  After law school, Feinerman clerked for Judge Joel M. Flaum of the Seventh Circuit and for Justice Anthony M. Kennedy of the Supreme Court of the United States.  After his clerkships, Feinerman worked in the Justice Department’s Office of Policy Development (now known as the Office of Legal Policy).  From 2003- 2007, Feinerman served as Solicitor General of Illinois, where he received  Best Brief Awards from the National Association of Attorneys General in each year from 2004-2007.

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 Chief Judge Holderman announced that the Northern District of Illinois has appointed three new magistrate judges to seven year terms.  All three new magistrates are former Northern District law clerks.  Here are the biographies of each new judge as provided by the Northern District (emphasis added):

• Jeffrey T. Gilbert received his law degree from Northwestern University (1980). He is a partner with Reed Smith in its Chicago office and is a member of the firm’s regulatory litigation group. Mr. Gilbert originally practiced with Sachnoff & Weaver, which combined with Reed Smith in 2007. Prior to entering private practice, Mr. Gilbert served as Law Clerk to The Honorable Marvin E. Aspen, U.S. District Court for the Northern District of Illinois. He has been recognized as an Illinois Super Lawyer by 2010. Mr. Gilbert is also an Adjunct Professor of Trial Advocacy at Northwestern University Law.
   
• Administrative Law Judge Young B. Kim was born in South Korea. He received his law degree from Loyola University of Chicago School of Law (1991). Judge Kim began his legal career as an Assistant Public Defender in Cook County, working in various misdemeanor courtrooms and in the Domestic Violence Division. Two years later, he served as Law Clerk to The Honorable Charles R. Norgle, Sr., U.S. District Court for the Northern District of Illinois. After his clerkship, Judge Kim joined the U.S. Attorney’s Office for the Northern District of Illinois, where he litigated both civil and criminal cases. During his seven-year service, Judge Kim focused on healthcare fraud, medical malpractice, and employment discrimination cases. In 2001, Judge Kim accepted an appointment with the United States Equal Employment Opportunity Commission as an Administrative Law Judge. Judge Kim is one of the recipients of the National Asian Pacific American Bar Association’s "2004 Best Lawyers Under 40" award.

• Sheila M. Finnegan received her law degree from the University of Chicago (1986) and currently co-chairs Mayer Brown’s Chicago litigation practice, handling civil and criminal trials.  In 2008, 2009, and 2010, she was recognized as one of the top 50 women lawyers in Illinois by Super Lawyers.  Prior to joining Mayer Brown, Ms. Finnegan served as Chief of the Criminal Division in the U.S. Attorney’s Office for the Northern District of Illinois. She also served for several years on the Financial Fraud Task Force. Ms. Finnegan served as Law Clerk to The Honorable Milton I. Shadur, U.S. District Court for the Northern District of Illinois, and is an Adjunct Professor of Trial Advocacy at Northwestern University Law School.

Welcome to the Northern District bench Judges Finnegan, Gilbert and Kim.  

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When I wrote the title to this post it was difficult to capture how significant this story is to practitioners.  The Northern District of Illinois has introduced an online transcript ordering system that can be used to order transcripts from any judge and court reporter in the Northern District.  The Northern District believes this is the first system like it in the federal courts.  This simple form -- click here to access it -- transforms what used to be an individualized process that was often difficult to navigate for both practitioners and the court reporters themselves because it required identifying the particular court report and then trying to reach the reporter, who likely spends most of the business day in court or back at their office performing the complex task of turning the rough transcript into the record of the court's proceedings.  And it further simplifies the process by identifying the available delivery and timing options for the transcripts, so that the reporters do not have to explain the options to each attorney that calls them.

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My latest IP for Your Business column, published in the Southeast Texas Record, and its sister publications the West Virginia Record and the Madison (Illinois) Record, focused upon protecting your brand on Twitter and stopping Twitter squatters.  With the Record's permission I am reposting the article on the Blog.  Click here and here to read the column at the Record.  And if you are an executive or business owner that is reading this and thinking that you do not need to worry about Twitter, at least skim the article and then do a search for your company name on Twitter.  You will likely change your mind.   Here are five steps for leveraging and protecting your brand on Twitter:

More and more frequently, longtime clients call me with desperation and frustration in their voices.

In each case, we have a conversation that goes very much like this:

Client:  Dave, I just learned that someone is using my company's identity on Twitter [Twitter squatting]. They have thousands of followers and growing everyday. They have been tweeting for weeks [or even months], and we had no idea until someone told us.

Me:  We can take care of this.

Client:  But I already tried to contact them and they are anonymous.

Me:  They are not as anonymous as you, or they, think they are. I have a plan to resolve this, protect your brand and we can even build your business in the process.

Client:  Thank you. [Sigh of relief.]

Unfortunately, instead of my plan, too many lawyers and business owners throw up their hands, unsure how to proceed because Twitter issues have not been around long enough to be fully crystallized by law schools, case law or legal treatises.

And worst of all, many lawyers counsel their clients not to worry about Twitter because it does not matter and no one is paying attention to it.

In fact, Twitter has a massive user base - many estimates suggest 5 to 10 million users and growing quickly. Businesses that ignore Twitter are walking away from one of the most powerful marketing/referral systems in existence.

Here are five steps for protecting your brand on Twitter and stopping Twitter squatters:

1. Claim Your Names

Before you do anything else - in fact, today as soon as you finish reading this article - secure your names, trademarks and brands on Twitter.

Then strongly consider using one or all of the Twitter monikers to find and engage your customers. You can also use those accounts to warn people that a stolen Twitter moniker is not you or your company. This both locks in your Twitter identity and gives a place for your customers to communicate with and about you.

When your customers tweet praise or complaints using your Twitter name they are automatically added to a "Replies" list that you can access through your Twitter account. That allows you to know when anyone mentions you on Twitter, and to respond to them as appropriate.

2. Play Sherlock Holmes

Use the squatting account's description and website links to identify the squatter's address and identity.

If the account does not list a name, use a service like www.whois.com or www.godaddy.com to determine the registered owner of any listed websites. Often, the registrar will provide a real name, address, phone number or email.

If they do not, try using whatever information is provided to track down the individual's other identifying and contact information using any of various internet background checking and identity services, such as www.intelius.com.

If that does not work, review the squatter's tweets to see if they provide identifying information. The squatter will often disclose their geographic location by discussing favorite sports teams, regional news stories or favorite restaurants.

3. Get Your Name Back

If you think the squatting is unintentional, email, call or direct message (via Twitter) the squatter and ask them to drop the name. If they drop it, you can immediately register it as yours. This can be easily accomplished by having the squatter change its Twitter moniker.

Twitter will automatically change the squatter's moniker with all of its followers and on all of the squatter's past tweets. So there is minimal, if any, cost to the squatter and you can claim the name as soon as the squatter drops it.

In addition to changing the name, have the squatter tweet something like the following:

I have changed my name from @TRADEMARK to @squatter to avoid confusion with TRADEMARK.

If the squatting is intentional, asking does not work or if you just do not want to take the time to find out if it will work, send a strongly worded cease and desist letter backed with the threat of legal action.

The power of a stern letter from legal counsel threatening a lawsuit should not be underestimated. Just the letter will often get the Twitter moniker returned to you and the explanatory tweet sent.

Remember that just as you may be uncertain about the value and return on investment of Twitter, the squatter likely has similar questions and is not interested in an expensive legal battle.

4. Take Action

If asking and letters do not work, take action. If the squatter's moniker is a clear and direct infringement of a registered trademark, the action can be as simple as sending abuse@twitter.com an email explaining the infringement and asking that the account be suspended.

The only downside is that Twitter suspends infringing monikers rather than transferring them and they only do it for very straightforward infringements, they do not make judgment calls.

If the infringement is direct or if you want the moniker back, file a lawsuit. Depending on your particular circumstances, you can file claims for trademark infringement, passing off or various tortious interferences. This is the most drastic option, but it will show the squatter you are serious, protect your brand and act as a deterrent to future squatters.

5. Use Your New Twitter Identity

This is the step that can generate new business, increased customer satisfaction and even cash flow. Begin following your customers, potential customers, ideal customers and competitors. And run regular searches either on Twitter (where you can save searches to rerun periodically) or at sites such as search.twitter.com for your trademarks, your products, important customers and your competitors.

Use those searches to build followers and to begin engaging your customers, potential customers and even competitors.

Your searches will allow you to identify when a customer praises or complains about your products and services and respond to them. You can explain or resolve complaints or amplify praise be retweeting it in.

These five steps may seem simple in hindsight, but they make up a powerful and important program that is critical for most modern businesses. Too many business people underestimate the power and importance of social media tools like Twitter.

Businesses need to monitor Twitter just like they do other trademark use and media channels. And you must enforce your marks on Twitter just like you do in every other channel of commerce.

R. David Donoghue is a partner in the Intellectual Property Group of Holland & Knight in Chicago, Ill. He may be contacted at (312) 578-6553 or david.donoghue@hklaw.com.

 

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The Northern District of Illinois continued its historically busy intellectual property docket in 2009.  For the first time in several years, there was a slight decrease in patent case filings. Of course, that is not surprising in light of a difficult economy and patent filings being down across the country. And I suspect that the new Local Patent Rules* will result in an increase in patent litigation filings for 2010. Trademark cases bucked their downward trend over the last several years, and were up by about 10% over 2008. Finally, copyright cases continued a relatively steep decline.  But despite the decline, the Northern District maintains one of the most active copyright dockets in the country.  This chart shows the number of yearly patent, trademark and copyright cases filed in the Northern District during calendar years 2006 through 2009 (data gathered from the Stanford IP Clearinghouse and Pacer):
 

*  Click here for much more on the Local Patent Rules in the Blog's archives.

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Heading into the long holiday weekend, here are several items that client responsibilities have prevented me from devoting full posts to:

• Next week, on December 28, new trademark rules go into effect that are intended to codify current PTO practice.  Click here for the excellent new Pittsburgh IP Law Blog's take on the new rules.  Welcome to the world of regional IP blogs.  I look forward to reading your local IP analysis.
   
• If you are looking for some top notch CLE or just want a broader view of the Bilski argument, check out Doug Lichtman's IP Colloquium where Lichtman and his UCLA students do a dramatic reading of the argument.  It is a great way to absorb the transcript and is an hour of free CLE.
   
• Congratulations to Mark Herrman of Jones Day and the Drug and Device Law Blog.  Herrman is leaving both the firm and the blog at the end of the month to take a senior litigation position with Aon.  Herrman will be greatly missed in the blogosphere.  Although I do not practice Herrman's area of law, Drug and Device Law is a must read blog for me because of both Herrman and his blogging counterpart Jim Beck of Dechert, who is continuing to write the blog.

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The Supreme Court heard oral argument in the Bilski case Monday afternoon.  Click here for a transcript of the arguments.  Here are a few of the highlights from Bilski's argument:

JUSTICE GINSBURG: But you say you would say tax avoidance methods are covered, just as the process here is covered. So an estate plan, tax avoidance, how to resist a corporate takeover, how to choose a jury, all of those are patentable?

MR. JAKES: They are eligible for patenting as processes, assuming they meet the other statutory requirements.

JUSTICE BREYER: So that would mean that every -- every businessman -- perhaps not every, but every successful businessman typically has something. His firm wouldn't be successful if he didn't have anything that others didn't have. He thinks of a new way to organize. He thinks of a new thing to say on the telephone. He thinks of something. That's how he made his money.

And your view would be -- and it's new, too, and it's useful, made him a fortune -- anything that helps any businessman succeed is patentable because we reduce it to a number of steps, explain it in general terms, file our application, granted?

MR. JAKES: It is potentially patentable, yes.

* * *

JUSTICE BREYER: So you are going to answer this question yes. You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. They learned things - (Laughter.)

JUSTICE BREYER: It was fabulous. And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?

MR. JAKES:  Potentially.

And here are some of the highlights from the government's argument:

JUSTICE SOTOMAYOR: No ruling in this case is going to change State Street. It wasn't looking at process or the meaning of "process." It was looking at something else.

 

* * *
 

CHIEF JUSTICE ROBERTS: Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not --simply the method isn't patentable because it doesn't involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That's like saying if you use a typewriter to type out the -- the process then it is patentable. I -- I -- it -- that takes away everything that you spent 53 pages establishing.

* * *

CHIEF JUSTICE ROBERTS: But if you look at your footnote, that involves the most tangential and insignificant use of a machine. And yet you say that might be enough to take something from patentability to not patentable.

MR. STEWART: And all we've said is that it might be enough; that is, hard questions will arise down the road as to where do you draw the line, to what extent must the machine or the transformation be central --

CHIEF JUSTICE ROBERTS: So you think it's a hard question. If you develop a process that says look to the historical averages of oil consumption over a certain period and divide it by 2, that process would not be patentable. But if you say use a calculator, then it -- then it is?

MR. STEWART: I think if it's simply using a calculator for its preexisting functionality to crunch numbers, very likely that would not be enough. But what we see in some analogous areas is that the computer will be programmed with new software, it will be given functionality it didn't have before in order to allow it to perform a series of calculations, and that gets closer to the line. And again --
 

CHIEF JUSTICE ROBERTS: Well, your footnote -- I don't mean to dwell on it -- it says to identify counterparties to the transactions. So that if what you're trying to get is the -- the baker who sells bread, because you are going to hook him up with the grocer who sells, you know, in the grocery store, if you punched in in your search station, you know, give me all the bakers in Washington, that would make it patentable?

MR. STEWART: Again, we are -- we are not saying it would be patent eligible. We would have to review those facts, and the PTO would have to review those facts in the context of an actual application.

I guess the point I'm trying to make is simply that we don't want the Court, for instance, in the area of software innovations or medical diagnostic techniques to be trying to use this case as the vehicle for identifying the circumstances in which innovations of that sort would and would not be patent eligible, because the case really doesn't present any -- any question regarding those technologies. And therefore, we --

If those highlights, left you wanting more, check out the following posts that give some additional context to the cold transcript or read the tea leaves, as we all wait for a decision, likely this spring:

• 271 Patent Blog
   
• IPWatchdog (and here)
   
• Patent Docs
   
• Patently-O (and here)
   
• The Prior Art
   
• WSJ Law Blog

 

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The Supreme Court hears oral argument today in Bilski v. Kappos.  The Court will decide the proper test for Section 101 patentability and will either decide or at least significantly impact the patentability of software and business method patents.  Here are the questions presented:

1. Whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for "any" new and useful process beyond excluding patents for "laws of nature, physical phenomena, and abstract ideas." 
    
2. Whether the Federal Circuit's "machine-or-transformation" test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect "method[s] of doing or conducting business." 35 U.S.C. § 273.

For more on the history of both the Bilski case, check out my recent article with my colleague Mike Grill in the Northwestern Journal of Technology and Intellectual Property.  Patently-O has compiled the amicus briefs -- click here for the briefs supporting Bilski or neither party, and here for the briefs supporting the government.  The briefs supporting the government include a brief by a group of Internet Retailers that, I am proud to say, cites my law review article arguing for an even application of the Twombly pleading standard as to both patent plaintiffs and patent defendants -- click here for the amicus brief and here for my article from the John Marshall Review of Intellectual Property Law.

Click here for the SCOTUSBlog's preview of the argument.  For post-argument CLE options, click here for a list of courses compiled by Patent Docs and here for information on a CLE from IPWatchdog's Gene Quinn, who plans to attend oral arguments.

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I recently started writing a column for the Southeast Texas Record, and its sister publications the West Virginia Record and the Madison (Illinois) Record.  The column is titled "IP for Your Business" and focuses on IP issues faced by businesses of all sizes.  The columns are not Chicago-specific, but I will post them here anyway, and with the Record's permission I will post them on the Blog because many Blog readers will find it valuable to have articles addressing bedrock IP issues, as well as how to deal with real world IP issues with a special emphasis on protecting against third party IP and monetizing your IP.  The first column (click here and here to read it) lays out seven steps for reducing patent litigation budgets while improving the quality of your case:

Increasingly, every industry and size of business feels the pain of patent litigation. Even small or medium-sized businesses are not exempt.

Most cases start the same way. A letter is sent to your company's president, CEO or general manager. The letter lists one or more patents, warns of patent infringement often with little other detail, and offers a license.

You turn to a search engine such as Google or Bing and quickly learn several facts: 1) the patent holder is a shell company, not a company that makes a product or offers a service; 2) you are one of many actual, potential or past defendants; and 3) you are angry and frustrated.

Once you get over your initial reaction, you need a plan. But how do you handle the increasing number of similar cases you are seeing, without destroying your legal budget and diverting your legal team's valuable resources from projects that are mission critical for your business?

Or as a company new to patent litigation, how do you handle your first patent dispute?

After dealing with these issues both as in-house counsel at a Fortune 100 company and as outside defense counsel, I have found that seven straightforward strategies significantly streamline case budgets while positively impacting case strategies.

1. Hire a Patent Litigator

The first thing you need to do, particularly if you do not have a general counsel or someone else with litigation experience, is to hire a patent litigator. You might be inclined to use your normal counsel, but before making that decision, make sure they have patent litigation experience. Patent litigation is a unique and complex area of law.

Many federal district courts even have special local rules for patent litigation. You want a lawyer who you trust and who has patent litigation experience. If you do not know a lawyer fitting your needs, ask lawyers and business contacts for recommendations.

You can also search for lawyers that are skilled in your technology or have expertise in your court. Also, resist the urge to delay hiring a patent litigator until you see if settlement efforts work.

Spending a little on a patent litigator during settlement talks can save large sums if the settlement falls through. Too often, a business person or lawyer that does not understand the intricacies of patent litigation will unintentionally make a statement that harms litigation positions down the road.

2. Establish A Joint Defense

If you have co-defendants, this is easy. Seek them out and set up a formal joint defense group. Make sure to determine whether you will split any costs.

You can often share invalidity experts. You can sometimes share noninfringement experts also, but even when you cannot, you can at least coordinate them. Determine who is in control amongst the co-defendants and how payments will be split before engaging the expert, not after the first bill is received.

If you are the only defendant in your case, seek out current and past defendants from other cases. They can provide valuable insights into invalidity, opposing counsel and the case strategies they found most effective. And if their case is ongoing, you likely have a common interest allowing you to establish a joint defense and take advantage of the benefits discussed above.

If your entire industry is being targeted, contact your competitors that have not been sued. They may have received a letter charging infringement. Even though they have not been sued, they can still have a common interest that allows you to collaborate.

3. Define Your Role and Manage Your Joint Defense Group

A joint defense group can be a valuable source of information and cost savings, but you must enter a joint defense group with a clear plan and clear goals. You should decide whether you want to lead the group, to actively participate or just to follow. Leading is the most expensive, but offers the most control over your defense.

Most, however, will choose active participation. This gives some control while moderating costs. Finally, smaller entities or those with little at stake in the litigation often choose to follow.

This role requires the least work and cost, while offering the benefit of at least the parties' joint defenses, like invalidity. The downsides are less of a voice in strategy decisions and less cooperation from co-defendants that may see you as a free-rider.

Even with a plan, joint defense groups can become a significant cost, as well as a time sink. There can be heavy e-mail volume, group conference calls and meetings that increase in length and frequency, and it can be difficult to make the nimble strategy corrections required in litigation when you need group buy-in.

Of course, some group communication is required. But you can manage meetings by agreeing ahead of time that every meeting requires an agenda and a time limit. Agendas and time limits avoid endless meetings full of off topic and unexpected issues that no party is prepared to answer.

Also, for larger joint defense groups and during busy portions of any multi-defendant case, like the close of discovery or claim construction, consider scheduling a set call, with agendas and a time limit allowing people to raise issues ahead of time.

Regular meetings can cut down on email traffic over small issues. When you know one or two co-defendants will require convincing of a position, consider contacting those parties one-on-one before the meeting to avoid delaying the entire group and building consensus for your ideas.

Finally, whenever possible hold meetings live. When all co-defendants are on a conference call, you run the risk of the call dragging because one or more participants are distracted with other work, office visitors, e-mail or the internet. Putting everyone in a room together minimizes distractions and encourages active participation, leading to shorter meetings.
 

Continue Reading...

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Loyola University's and the Chicago Intellectual Property Alliance's annual IP Day In Chicago is next week, Tuesday, November 3 at the law school, 25 East Pearson Street in Chicago.  This is a do not miss event every year.  This year's program includes a keynote speech by the Northern District of Illinois's Judge Kennelly and impressive panels discussing topics including the new proposed generic top-level domains and protecting patents and trade secrets and policing false advertising.  Click here for a brochure with more details and registration information.

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Here are several stories and updates, as well as a new IP blog:

• At Patently-O, Dennis Crouch covers the Federal Circuit decision in the appeal from the Northern District of Illinois case SourceOne Global Partners, LLC v. KGK Synergize, Inc. -- Click here for Crouch's post on the appeal and here for my post on the underlying decision.
   
• The latest installment of Doug Lichtman's IP Colloquium is available -- click here to listen.  Lichtman and his guests from Microsoft, Paramount Pictures and MySpace discuss the protection of content in the digital age.  As always, it is an excellent listen and CLE credit is available.
   
• Seattle Trademark Lawyer Michael Atkins has another great post up about Olympic trademarks, this time featuring an article that ran in the Chicago Tribune (here) and LA Times (here) quoting both Atkins and me.
   
• California attorney and mediator Erica Bristol has started the IP Watchtower blog.  The blog covers all facets of intellectual property and the initial posts suggest it will be a great read.  I have added it to my feed reader.

 

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Here are several stories that I have been wanting to blog about, but have not been able to get to because of the new Local Patent Rules, my webinar on reducing IP litigation costs (I was glad to see that so many of you attended and found the presentation valuable) and pressing client matters:

• Judge Zagel was interviewed by Metropolitan Corporate Counsel.  He discussed how his docket has been impacted by the recession and  noted, among other things, that parties have been much more interested in and willing to agree to staying cases or slow discovery -- click here to read the story.  He also briefly discusses discovery of electronically stored information.
   
• Seattle Trademark Lawyer Michael Atkins has an excellent series of posts on the US Olympic Committee's enforcement of the Olympic marks, to which it has almost absolute rights based upon federal law -- click here, here, here, here and here.  I had planned to write about these issues myself early this week while Chicago enjoyed winning the 2016 Summer Olympics, but as you all likely know by now that is not quite how the vote went.

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Next week, on October 8 at 10am central, I have the privilege of giving a presentation on my six steps for reducing IP litigation costs and improving your effectiveness, as part of BrightTALK's IP Litigation Summit.  The presentation draws on my experience as both inside and outside counsel.  I discuss ways to manage your outside counsel proactively and effectively.  I also look at the role of not just a long term case strategy, but a short term strategy in controlling and focusing costs on your litigation goals while increasing your effectiveness.  Click here to register for my presentation.  You can watch the presentation below, both live and anytime afterward:

And in addition to my presentation, there is a very impressive line up for the summit, headlined by former PTO Director and Foley & Lardner partner Jon Dudas:

• Jon Dudas, Foley & Lardner -- Appealing Beyond the Supreme Court:  Patent Reform (12pm central)
   
• Mike Milano, Shepard Mullin -- Does The Sun Shine On Inventive Process? In re Bilski, S.Ct.2009 (11am central)
   
• Thomas Fleming, Kaye Scholer -- Developing a Winning IP Litigation Strategy in Challenging Times (1pm central)
   
• Anthony Cebro, PCT Companies (2pm central)
   
• Mike Rodenbaugh, Rodenbaugh Law -- Abusive Domain Names: Enforcement Options & ICANN Policy Update

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Congratulations to Sharon Barner, a Chicagoan and the head of Foley & Lardner's IP practice.  Barner has been nominated to become the next Deputy Director of the Patent & Trademark Office.  Based upon reputation and my limited contact with Barner, including among others speaking on a panel at Northwestern with her, the administration made an excellent choice.  For more on the nomination, check out Patently-O and Chicago Law.

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While I travel for a few pressing client matters, here are a couple of podcasts and IP stories worth a read or listen:

• At the end of August, I had the privilege of joining Jeremy Phillips and Philip Parker on Duncan Bucknell's IP Think Tank Podcast.  We discussed the impact of the recession on global patenting and the quality of patents in the US, Japan and Europe.  Click here  for the podcast.
   
• The latest installment of Doug Lichtman's IP Colloquium is available here.  Lichtman investigates the scope of the derivative work rights in copyright law, using a recent case that questioned whehter a Harry Potter was a derivative work based upon J.K. Rowling's Harry Potter series.  It is a great listen and comes with free CLE credit.  Click here for the podcast.

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In late 2007, Chicago lost an important member of our IP community, Mark Banner.  Chicago's Richard Linn Inn of Court, of which Banner as a founding Master, has established a scholarship offering second and third year law students $5,000 toward their fall semester tuition.  Applications (click here to download one) are due by October 10.  Here are the scholarship criteria:

• Commitment to pursue IP law;
   
• Commitment to ethics, civility and professionalism;
   
• Academic merit, both law school and other undergraduate or graduate work;
   
• Written and oral communication skills, including a telephone interview;
   
• Leadership and community involvement; and
   
• Member of a historically underrepresented group in IP.

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Here are a few stories from the blogosphere that I did not have time to fully cover this week because of pressing client matters and some new opportunities:

• The Federalist Society is offering an excellent podcast discussing Bilski from almost every possible angle.  The podcast features West Virginia University Law Professor Michael Risch and American University Law Professor Joshua Sarnoff, who filed competing amicus briefs.  The podcast is a half-hour well spent for  anyone involved in patent law.  Click here to listen to the podcast.  Hat tip to Duncan Bucknell at the IP Think Tank Blog for pointing out the podcast.
   
• Doug Lichtman's IP Colloquium takes a thorough look at the copyright issue of the year thus far, Shepard Fairey's iconic Obama image, and Lichtman offers free CLE credit for listening.  Click here for that edition and here for the IP Colloquium's archives.
   
• Michael Atkins has identified the top five trademark cases of the last year at the Seattle Trademark Lawyer.  Number 4 is the Seventh Circuit's decision in AutoZone v. Strick.  Click here for more on the district court decisions in the case from the Blog's archives.  This is what Atkins had to say about the Seventh Circuit's decision:

[G]ood likelihood of confusion analysis in reversal of hard-fought trademark infringement case, which also was one of the first dilution cases under the [Trademark Dilution Revision Act].

 

 

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Seattle Trademark Lawyer Michael Atkins did a superb job hosting this week's Blawg Review -- click here to read it.  Atkins takes a stroll through Seattle's famous Pike's Place Market looking at Seattle-based blogs -- Washington State Patent Law Blog, LexBlog and the China Law Blog, among others -- as well as a number of trademark blogs.  I was fortunate to be featured on Atkins's tour with last week's post about the Lettuce trademark dispute -- click here to read my post.  Thanks Mike, for a great Blawg Review and for including the Blog.

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Illinois's senior senator Dick Durbin recently sent President Obama the names of seven nominees to fill three vacancies on the Northern District of Illinois bench.  The nominees are AUSA Edmond Chang, Illinois appellate Judge Sharon Coleman, Magistrate Judge Susan Cox (click here to read about Judge Cox's IP opinions in the Blog's archives), Thomas Durkin, Gary Feinerman, Mary Rowland and Magistrate Judge Maria Valdez (click here to read about Judge Valdez's IP opinions in the Blog's archives). 

A hat tip to Ameet Sachdev at the Chicago Tribune's Chicago Law Blog for identifying this story last week.

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Here are several stories to start your Monday morning with that I was not able to get to last week because of client commitments and some new business opportunities:

• The first round of Bilski briefing has been filed  with the Supreme Court.  Click here for links to the various amici briefs at Patently-O, and here for an analysis of Bilski's opening brief at BlawgIT.
   
• Victoria Pynchon has an important warning for IP litigators about understanding a client's insurance coverage at her IP ADR Blog -- click here to read the story and here to check out Pynchon's husband's new Catastrophic Insurance Coverage Blog.  The blog appears to be a good read, but more importantly IP litigators should make sure that they investigate client's insurance policies early in a case.
   
• William Patry has a new copyright-related blog, Moral Panics and the Copyright Wars.  It is a companion to his book of the same name, which is excellent.  I had the privilege of receiving an advance copy, which I loved.  I will post a review soon.  For now though, click here for Patry's first post on the new blog.
   
• Finally, last Friday, as they were headed into the August recess the Senate confirmed David Kappos as the next Director of the PTO -- click here for the PTO's press release.

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The Houston Business and Tax Law Journal's ("HBTLJ") Submissions Editor Andrew Doud emailed me last week seeking help in getting the word out that the HBTLJ is looking for new intellectual property articles.  This is a great opportunity for those looking to publish articles.  Here is a little more about what the HBTLJ is looking for, according to Doud:

HBTLJ is a scholarly journal published by students at the University of Houston Law Center.  The Journal is a medium for academic discussion and practical application insight in business, commerce, taxation, and intellectual property. 

The HBTLJ is specifically seeking IP articles, they do not need to have a tax perspective.  Here are the submission guidelines

 

Please forward articles for consideration to this email and direct questions to Doud here.

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Welcome to the August 2009 Carnival of Trust.  The Carnival of Trust is a monthly, traveling review of the last month's best posts related to various aspects of trust in the business world.  It is much like the weekly Blawg Reviews that I post links to and have hosted (click here and here), but those generally contain far more than ten links.  My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.  For my regular Chicago IP Litigation blog readers, this will be a slight departure from the case analysis format you have come to expect, but very similar to my earlier stints hosting the Carnival of Trust and Blawg Review. 

It is the trust that matters, not the title.

At IP Think Tank, Duncan Bucknell added to the recent debate in the patent community about whether the IP function should move into the corporate C-level suite, adding a Chief Intellectual Property Office to the ranks of CEO, COO, CTO, CIO, CLO and CMO – click here and here to read Bucknell's posts. Following up on comments by Microsoft's Marshall Phelps and Rockwell Collins' Bill Elkington, Bucknell explained that the issue is not the name, but in a company having an IP champion that earns the organization's trust and respect, whatever title that person is given:

You have to build your own credibility within your organisation as someone who reliably gets the job done.  As you build trust with those senior to you, then your (ongoing?) commitment to communicating the value that can be added using intellectual property will become more prominent. 

Make some (achievable) promises and then deliver.  The more that you do this, the more credibility will be given to the IP function, and the greater awareness those senior to you will have.  Some would call such a person an ‘IP Evangelist’ – I would say that they are just doing their job.  People executing on difficult tasks bit by bit has always been what success is about.

As usual, Bucknell's analysis is excellent. A person's respect within an organization is at least as important as their title.

Running an organization is all about building trust.

The patent community focused much of its attention this week on the confirmation hearings for David J. Kappos, nominee for Director of the US Patent & Trademark Office. Click here for Patentability's summary of the hearing highlights and here for a copy of Kappos's statement at Patently-O. The hearings were relatively short, likely because there appears to be widespread trust in Kappos's background and abilities. And although much of the hearing focused on procedural patent office issues, Kappos showed he deserved that trust by focusing his statement on his plans to earn trust with all of the stakeholders in the patent world. He specifically addressed concerns that his corporate background could disadvantage individual inventors or academics:

I am mindful that the USPTO serves the interests of ALL innovators in this country, small and large, corporate and independent, academic and applied, and – most importantly -- the public interest. While I have spent my career to date at a large corporate enterprise, I am familiar with the concerns and issues of all USPTO constituents - including small and independent inventors, the venture and start-up community, public interest groups, the patent bar and many others - and will reach out to all of them.

Kappos addressed his plans to build trust with his employees at the USPTO:

I am mindful of the incredible dedication of the thousands of USPTO employees, and the essential role they play to the success of the US innovation system. I will work every day with the USPTO employees and the unions that represent them to establish strong, positive relationships grounded in professional treatment for these workers producing work product based on professional judgment.

He addressed the need to build global trust and relationships:

I am acutely mindful that innovation today is global and that IP policy is of paramount importance, not only in our country, but also in the EU and Japan, in China, India, Brazil and many other developing countries. I will use my international experience and my understanding of global IP trends to help this Administration represent, advance, and protect the interests of American innovators in the global arena and to lead the world in developing strong, balanced, inclusive intellectual property systems that advance the well-being of all participants.

And he addressed the need to build trust with the Administration he seeks to join and the American people the Administration serves:

Finally, I am mindful that the office for which I am being considered, working as part of Secretary Locke's team and within the Administration's agenda, must be intensely focused on how to serve the American people at this time of economic uncertainty.

Gene Quinn provides proof that Kappos's trust-building efforts worked in his IPWatchdog post about the hearings (click here to read the post):

In all, what Kappos said was certainly reassuring, and he should have absolutely no problem getting confirmed.  If he does stay mindful of the needs of all those who use the USPTO, small, large and in between, and the interests of the diverse industries who sometimes need contradictory things in order to thrive, he will not only be a good leader, but he will be an exceptional leader and might really reform the Patent Office into the entity it can and should be in order to foster economic development and job creation in the US. 
 

Continue Reading...

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Here are several stories and updates worth a read:

• I am hosting the August Carnival of Trust on Monday, August 3 here.  I hosted once before and really enjoyed the experience -- click here and here.   The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world.  If you have trust-related posts from the last month, send them to me. by Friday or Saturday.  For other examples of Carnival of Trust posts, check out recent hosts Adrian Dayton and Victoria Pynchon.
   
• I was featured in Stephanie Allen West's Reading Minds column in the ABA's Law Practice Management magazine this month -- click here to read the column.  Along with Jennifer Loud Ungar, Andrew Flusche, and Todd Kashdan, I was asked to recommend a favorite management book.  I went with an unorthodox choice, but a valuable read, the Boy Scout Patrol Leader's Handbook.  Here is some of my recommendation:

In the many years since I relied on the Handbook to run Boy Scout patrols, I have found the lessons in this volume to be equally applicable to leading and managing teams of lawyers or businesspeople. The Handbook is a powerful guide for developing successful organizations, maintaining group morale and achieving group success. As an example, it lists these 10 tips for being a good leader: (1) keep your word; (2) be fair; (3) communicate well and often; (4) be flexible; (5) be organized; (6) delegate; (7) set an example; (8) be consistent; (9) give praise; and (10) ask for help. These are words to live by for patrol leaders, lawyers and C-level executives alike.

• Michael Atkins has a great post at his Seattle Trademark Lawyer about a strong brand protection program worth emulating -- click here to read it.

 

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Blawg Review #222 was hosted this week by Duncan Bucknell's IP Think Tank -- click here to read it.  The Review is themed around Australian community festivals, which sound much like American community festivals.  Of particular interest, are links to the following IP-related posts:

• Drug & Device Law and Point of Law posts discussing the Twombly/Iqbal pleading requirements, a subject I have discussed on this blog here and here.  These posts suggest that Twombly-style pleading is spreading to most substantive legal areas, as the Supreme Court required in Iqbal.
   
• Spicy IP's post highlighting the fact that Managing Intellectual Property magazine named IP bloggers generically as one of the fifty most influential people in IP -- click here for the post.

 

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A new blog and several stories I have been meaning to get to, but have not had enough time:

• Tom Patterson, from Chicago, has joined the blogosphere with the Emergency Business Litigation blog, another blog by Lexblog.  It does not have an IP focus, but some of Patterson's first post deal with Federal Circuit decisions regarding injunctions in patent cases -- click here and here to read them.  Welcome to the blogging conversation Tom.
   
• The IP ADR Blog has an interesting guest post from Robert Rose discussing patent arbitration rules -- click here to read the post.  Of particular interest, Rose points out the oft forgotten statutory obligation to notify the PTO of any arbitration award, which is made part of the file history.
   
• Also from the IP ADR Blog, Victoria Pynchon has posted the slides that were the basis of a February 2009 CLE presentation we did about alternative dispute resolution in patent disputes, a valuable tool particularly in difficult economic times.  Click here for Pynchon's post with the slides.

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The Northern District of Illinois is seeking applicants for one or more open Magistrate Judge positions.  Magistrates serve eight year terms and the open positions will be located in Chicago.  Chief Judge Holderman expects to appoint a Merit Selection Panel that will screen applicants and make recommendations this fall with the position or positins expected to be filled in the spring of 2010.

The minimum requirements are as follows:

[A]n applicant must be, and have been for at least five years, a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years. The applicant must be less than seventy years of age, and may not be related to a judge of the district court.

Applications and application instructions are available here.  Applications must be received by 4;30 pm on September 11, 2009.

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Gene Quinn has done some great work in developing a list of the top 50 patent blogs at IPWatchdog, based on a combination of objective and subjective criteria -- click here to read the post.  With all of the usual caveats about the value of top blog lists and competitions, I am proud that the Chicago IP Litigation blog came in at number 28 and the top regional US patent blog.  I am honored to be among the top regional patent blogs, including Washington State Patent Blog, California Biotech Blog,* and Georgia Patent Law.  I am also proud to be among the numerous Chicago patent blogs that made the list, including Patent Docs, Orange Book Blog and the 271 Patent Blog.

Here is the top 50:

 

1. Patently-O
2. IPWatchdog.com
3. IP Kat
4. Spicy IP
5. Patent Baristas
6. Intellectual Property Watch
7. Patent Docs
8. 271 Patent Blog
9. BlawgIT
10. Patent Prospector
11. The Invent Blog
12. IP Think Tank and The Prior Art
13. -
    
14. Orange Book Blog
15. IPJUR and European Patent Caselaw
16. -
    
17. Promote the Progress
18. IP NewsFlash
19. Anticipate This!
20. Patentably Defined
21. India Patent
22. Intellectual Asset Management
23. Against Monopoly
24. Patent Circle
25. I/P Updates
26. PHOSITA
27. IP Spotlight
28. Chicago IP Litigation
29. The IP Factor
30. Patent Arcade and File Wrapper
31. -
    
32. Securing Innovation
33. Patents 101 and IP Estonia
34. -
    
35. PatLit
36. Just An Examiner
37. The Business of Patents
38. Patentability
39. Inventive Step
40. Holman’s Biotech IP
41. Washington State Patent Law
42. California Biotech Law
43. Patent Infringement Updates and Patent Assassins
44. -
    
45. Russian Patents
46. Georgia Patent Law
47. Patentnapsis
48. Honoring the Inventor
49. OC Patent Lawyer
50. Nanomedicine & IP

*  Another blog by LexBlog.

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Landon IP has created an excellent new patent search information site and community -- Intellogist.  Among other services, Intellogist offers:

• Comparisons of numerous patent search sites and services;
   
• An interactive map that identifies country-specific search services;
   
• Detailed reports on search services; and
   
• A best patent searching practices wiki.

I am a big fan of Landon IP and based on Landon's past great work for me, I would have expected nothing less than the excellent resource they created in Intellogist.

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The Northern District recently sent out the following notice of a memorial service for Judge Moran to all e-filers:

The Judges of the United States District Court
for the Northern District of Illinois
cordially invite you to attend the
Memorial Service
in Remembrance of
Honorable James B. Moran
Monday, July 13, 2009, beginning at 3:30 p.m.
James Benton Parsons Memorial Courtroom
Everett McKinley Dirksen United States Courthouse
Twenty-fifth floor
219 South Dearborn Street
Chicago, Illinois

Reception immediately following in the 25th floor lobby,
Please RSVP by July 9, 2009 via e-mail
To JudgeMoranMemorialService@ilnd.uscourts.gov

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LexBlog's Kevin O'Keefe picked up on Judge Posner's proposal to make linking and summarizing news stories copyright infringement, which I blogged about Friday.  O'Keefe takes a different approach than I did, based in part upon a post by Jeff Jarvis at the Buzz Machine.  O'Keefe argues that the issue is really that news spreads from newspapers faster today than it used to.  But just as newspapers benefited from word of mouth about their stories twenty years ago, they benefit from links to their stories today.  As a result, linking should not be limited in any way and certainly not just to prop up the newspaper industry:

Because news spreads faster we're supposed to give newspapers a monopoly on the news? That's crazy.

Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.

Schultz and the Marbergers complain about what they call the ‘free-riding’ of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.
The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.

 

Things have changed - changed quickly. But let's be careful when thinking of following lawyers and Judges who may not understand the nature of the change.

I understand his view, although I am not sure it is the best decision from a policy stand point.  It is important not to lose site of the fact that copyright holders with content on the internet still have significant protection.  Direct copying of the stories is already protected by copyright law, especially if a paper registers its copyrights and can get statutory damages.  Of course, as I pointed out Friday, it is hard to police the use of facts from news stories.  So, it will be difficult to make an infringement case when someone truly summarizes a news story.  But I can see the value in incentivizing traditional news media to continue spending on reporters and reporting.  For example, a system of paying newspapers, and other content providers that would choose to opt into the system, a nominal fee for click-throughs on links from your site to a current news story.  To me that seems like a reasonable compromise which would not cost most websites much, but could provide real economic benefit to news websites, thereby maintaining reporting staffs.  Of course, newspapers could accomplish something similar and maybe even economically better by shifting to subscription-based sites, which has been received with mixed reactions and effects previously.

But more important than which position is correct, is the discussion.  While the Constitution does give Congress the power to protect copyrights, it says little about how to protect them.  That is left to Congress, which enacts copyright laws based upon the technology available when the law is drafted and some limited vision of technology to come.  As a result, it is difficult to effectively apply the Copyright Act of 1976, even with more recent amendments and additions, to every aspect of the internet world.  So, in light of the fast pace of technological change over the last ten to twenty years, an open dialogue about how to make the copyright laws adequately protect authors and the public  is very important.  And as O'Keefe and Jarvis point out, it is a dialogue that requires more than just lawyers, who understand the legal issues, but artists, newspapers, media consumers and many other copyright stakeholders.

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The Seventh Circuit's Judge Posner has weighed in on the newspaper crisis at his Becker-Posner Blog suggesting that a fix to the news revenue issue might be to change copyright laws to prevent linking to or summarizing news content (click here to read the post):

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

I see the problem and the danger to society in losing newspapers and their reporters, but it seems unworkable to prevent linking.  Perhaps a system could be implemented requiring sites that link to a news story or to registered and copyrighted material to pay a small fee for each click through from their site.  It could be similar to and even administered by the Copyright Clearance Center which currently offers licenses that grant rights to incidental copying of the copyrighted content of member organizations.

Additionally, preventing summarizing of factual news stories would be exceptionally difficult to implement.  But the newspapers can prevent direct copying of the text of articles from their sites and can always require subscriptions or passwords to get to their content.

But while I am not sure that these suggestions are workable, there is little doubt that newspapers in particular need new avenues to monetize their content in order to maintain economically viable.  And as someone who has three papers delivered to his door daily, I fully support protecting the print news media.

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As of June 15, the Northern District of Illinois is requiring that all sealed or restricted documents be e-filed through the Northern District's ECF system.  And sealed documents may only be filed pursuant to a protective order or by leave of court.  Click here for the Court's filing under seal instructions.

The Northern District is also requiring that cases be opened electronically through the Northern District's ECF system.  Click here for the Court's instructions for opening civil cases.

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 IP Business Congress 2009 is in Chicago through this afternoon.  Unfortunately, client commitments have kept me from attending as much of the event as I would have liked, but you can see from the following Twitter live microblogs of the event that it was an excellent program:  @DuncanBucknell; @AwakenIP; @IPBC2009; @JackDTodd; and @thinkfireip.  Or check out a search for microblog posts about the event here.  And watch for a few interviews from the event on the Blog over the next few weeks.

And before you leave the IPBC, stop by Meet the Bloggers VI at the world famous Billy Goat Tavern.  The Billy Goat is just down and below the street from the Four Seasons at 430 N. Michigan Avenue.  Go to the Tribune Tower on Michigan Avenue and take the stairs below the sidewalk to find the Billy Goat.  Thanks again to Meet the Blogger creator and Meet the Blogger III host John Welch of the TTABlog for allowing me to use the Meet the Blogger name.

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Blawg Review #217 is up at Securing Innovation, brought to you by the IP.com team -- click here to read it.  This Review's theme is Father's Day, and it is very well done.  In addition to the heavy IP focus, we learn that although it should be written as plural possessive, Fathers' Day, historically it has been known by the singular possessive, Father's Day.  And it has pictures of many legal blogging fathers and their children, including a shot of me with my father and my son enjoying a Chicago Blackhawks game late this season.  The Review also reminds people to join me at  Meet the Bloggers at the Billy Goat Tavern tomorrow, Tuesday, night after IPBC 2009.

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Yesterday, President Obama announced his intent to nominate David J. Kappos as the next Director of the Patent and Trademark Office, also known as Under Secretary of Commerce for Intellectual Property.   Kappos is currently IBM's Vice President and Assistant General Counsel, Intellectual Property.  Kappos earned a degree in electrical and computer engineering from the University of California Davis and received his law degree from Berkley.  Here is some of Kappos biography from President Obama's press release on the pending nomination:

Mr. Kappos serves on the Board of Directors of the American Intellectual Property Law Association, the Intellectual Property Owners Association, and the International Intellectual Property Society. He is also the Vice President of the Intellectual Property Owners Association. He has held various previous leadership positions in intellectual property law associations in Asia and the U.S. He has spoken widely in Asia, Europe, and the U.S. on intellectual property topics. Mr. Kappos received his Bachelor of Science Degree in Electrical and Computer Engineering from the University of California Davis in 1983, and his law degree from the University of California Berkeley in 1990. He joined IBM in 1983 as a Development Engineer and has served as an Intellectual Property Law attorney in IBM’s Storage Division and Litigation group, as IP Law Counsel in IBM Software Group, as Assistant General Counsel in IBM Asia/Pacific, IBM Corporate Counsel and as Assistant General Counsel prior to his current position.

For initial reactions from the blogosphere, check out:  ChipLaw; IPWatchdog; Patent Law Insights; and Patently-O.

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Team USA placed an impressive third in the international Patent Cup Regatta.  Team USA was skippered by Chicago patent attorneys Gary Ropski, President of Brinks Hofer, and Leif Sigmond, a former Managing Partner at McDonnell Boehnen Hulbert & Berghoff.  This year's Cup was held at the Yacht Club de Ilhabela, located on the island of Ilhabela on the northeast coast of the Brazilian state of Sao Paolo.  Ropski's and Sigmond's crew included:  Marcus Thymian of McDonnell Boehnen and Derek Minihane , in-house counsel at Intermolecular.  In 2007, the team also placed third when the competition was in Venice.  Team USA won the United States' first Patent Cup in 2006, when the event was hosted in Chicago.  Congratulations Team USA!

The Cup was created in 1989 by a German patent attorney and a French patent attorney to foster camaraderie and relationships among IP lawyers internationally.  The Cup is held in a different country each year, with the host country organizing the event, providing vessels and setting the rules.

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IP Business Congress 2009 comes to Chicago in about  two weeks, June 21-23, 2009 -- click here for registration information.  In honor of such an impressive group of IP lawyers coming to Chicago, I am hosting Meet the Bloggers VI on Tuesday evening June 23 starting at 5pm. 

The IPBC is at the beautiful Four Seasons Chicago, but in order to make sure that attendees get a well-rounded taste of Chicago, Meet the Bloggers VI will be held at the world famous Billy Goat Tavern.  The Billy Goat is just down and below the street from the Four Seasons at 430 N. Michigan Avenue.  Go to the Tribune Tower on Michigan Avenue and take the stairs below the sidewalk to find the Billy Goat.  Those who have a long history in the IP blogosphere will remember that the Billy Goat was also the site of Meet the Blogger III (I am on the left side of the second picture).  Also, I want to thank Meet the Blogger creator and Meet the Blogger III host John Welch of the TTABlog for allowing me to use the Meet the Blogger name.

I am not making any promises, but I am hopeful that if you attend you will meet Chicago legal blogging luminaries such as Internet Cases; Chicago Law (an excellent new blog by the Chicago Tribune's Ameet Sachdev); the anonymous Editor of Blawg Review; Cyberlaw Central; and 12:01 Tuesday. and the 271 Patent Blog.

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Last Friday, May 29 the Northern District held its tenth annual pro bono awards ceremony.  Federal Bar Association President Juanita Sales Lee was the keynote speaker.  The Court gave out both Awards for Excellence in Pro Bono and an Award for Special Service to the Court.  The Excellence awards went to:

• Richard L. Marcus of Sonnenschein Nath Rosenthal LLP (presented by Judge Cox);
   
• Howard L. Mocerf, Richard P. Darke and Amy E. McCracken of Duane Morris LLP (presented by Judge Manning);
   
• Kate Jillian Grossman of Sidley Austin LLP (presented by Judge Schenkier);
   
• Edward M. Fox of Ed Fox & Associates (presented by Chief Judge Holderman);
   
• Jeffrey D. Colman of Jenner & Block LLP (presented by Judge Bucklo);
   
• James P. Condon of Central States Funds (presented by Judge St. Eve and Judge Cole);
   
• Michael George Kelly of the Law Offices of Chadwick & Lakerdas (presented by Judge Manning and Judge Cox);
   
• Arthur J. Howe of Schopf & Weiss LLP and Julie Ann Sebastian of Cook County State’s Attorney’s Office (presented by Judge Lefkow);

And the Special Service Award went to:

• Joel Daly, District Court Information Officer (presented by Chief Judge Holderman).

Congratulations to all of the recipients, and thanks to all of the award recipients for their service.

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The patent blogosphere loves a cert grant in a patent case.  A patent case pending before the Supreme Court gives months of blog material and lots to debate, not to mention months of law review articles like the one I have slated for publication later this summer.  So, it is no surprise to see some strong commentary lighting up the patent blogs.  Here are two of the most thorough and interesting:

• Patent Docs (predicting that the Supreme Court moves away from the Federal Circuit's "bright line" machine-or-transformation test and questioning whether the Court will address the patentability of diagnostic method claims as raised in Justice Breyer's dissent from the Court's dismissal of Cert in Labcorp v. Metabolite); and
   
• The Prior Art (handicapping the Supreme Court's eventual decision, including a brief look at  appointee Judge Sotomayor's potential impact on the decision).

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Earlier today, the Supreme Court granted cert in Bilski, the Federal Circuit's en banc decision limiting the patentability of business method and software patents.  Many commentators are predicting that the Supreme Court will further restrict business method and software claims through the machine or transformation test, although it is hard to imagine that either type of claim will be completely eliminated.  Of course, the Supreme Court could also move the law back toward the  State Street decision allowing business methods and software to be patented more freely.  The questions presented are:

Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

For more takes on the cert decision and its implications, check out:

• 271 Patent Blog;
   
• IPWatchdog;
   
• Patently-O;
   
• SCOTUS Blog; and
   
• WSJ Law Blog.

 

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IP Watchdog's Gene Quinn is continuing his quest to identify the top patent blogs.  As a starting point he used traffic-based ratings from Technorati and Alexa to identify 50 of the most read patent blogs.  But Quinn did not stop there.  In order to add a subjective evaluation of the blogs, he is asking you to vote for your favorite and identify those that you follow here -- if you chose to vote for this blog, thank you.

I am generally not a fan of best blog competitions because blogging is so personal to both bloggers and blog readers.  But as the wise folks at Securing Innovation* pointed out, surveys like Quinn's benefit the entire intellectual property community by highlighting and promoting the best of the blogosphere.

Here is Quinn's list of top patent blogs in alphabetical order:

• 271 Patent Blog
• Against Monopoly
• Anticipate This!
• BlawgIT
• California Biotech Law
• Chicago IP Litigation
• European Patent Caselaw
• File Wrapper
• Georgia Patent Law
• Holman's Biotech IP
• Honoring the Inventor
• I/P Updates
• India Patent
• Intellectual Asset Management
• Intellectual Property Watch
• Inventive Step
• IP Estonia
• IP Kat
• IP NewsFlash
• IP Spotlight
• IP Think Tank
• IPJUR
• IPWatchdog.com
• Just An Examiner
• Nanomedicine & IP
• OC Patent Lawyer
• Orange Book Blog
• Patent Arcade
• Patent Assassins
• Patent Baristas
• Patent Circle
• Patent Docs
• Patent Infringement Updates
• Patent Prospector
• Patentability
• Patentably Defined
• Patently-O
• Patentnapsis
• Patents 101
• PatLit
• PHOSITA
• Promote the Progress
• Russian Patents
• Securing Innovation
• Spicy IP
• The Business of Patents
• The Invent Blog
• The IP Factor
• The Prior Art
• Washington State Patent Law

*  Thank you to Securing Innovation for putting together the hyperlinked list of blogs and giving me permission to copy them into this post.

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Several years ago, Georgetown University law student, and now fellow GULC alum, Sarah Levien Shullman analyzed Supreme Court arguments and found that you could predict the winner based on the Court's questions.  The party that was asked more questions almost always lost.  According to Adam Liptak's recent New York Times story* -- click here to read it -- Chief Justice Roberts, as an appellate judge, reproduced the study with a sample of cases since 1980 and confirmed the results, explaining to the Supreme Court Historical Society:

The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate

The study made me think about predicting district court outcomes.  A study of district court outcomes based on questioning would be much hard to perform accurately because the data set is much larger and the decision making body is much larger and less interrelated.  My experience says that, at the district court level, you can learn more from the tone and substance of a court's questions than from the number of those questions.  But I am curious to hear what you think.

*  Tip of the hat to the Legal Writing Prof Blog for identifying the story.

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It appears that some lawyers are trying to bring their business casual office style into the courtroom, and Illinois judges do not like it.  Yesterday, the Wall Street Journal Law Blog reported that a panel of Illinois judges, including Northern District Judges, at the Seventh Circuit Bar conference agreed that attorneys are appearing in court wearing inappropriate clothing, including themed-ties and clothes that would be appropriate for the gym -- click here to read the story.

Many will dismiss this story as fluff, but it is not.  How you dress is an important element of your first impression on the court, just like it is in any social interaction.  As a federal law clerk, I learned three things about the impact of a lawyer's clothing choices:  1) judges care how you dress; 2) jurors care also; and 3) simple things go a long way.  One of the first insights I received from my judge was to always button your coat when you stand up in court.*  I confess that I thought it was a minor point and I could not imagine that anyone noticed an unbuttoned coat.  But that changed when we spoke with a jury after a case weeks later, and one of the jurors mentioned that it bothered him that one of the trial attorneys did not button his coat.  He felt it was sloppy and disrespectful.

Finally, in defense of Chicago lawyers this Chicago lawyer is in the running for Esquire's best dressed man of 2009.  And if this post makes you think about a new suit, I highly recommend Richard Bennett Custom Tailors.

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Here are several items that I have been holding to fit into posts, but that do not warrant a separate post:

• The list of regional IP blogs keeps growing.  Here are a few recent additions, as well as some general IP blogs.  I will do an update of my regional blog list soon:
  
  
  • Delaware Patent Litigation Report* by lawyers at Morris James.  This is not technically a new blog, but it is a significant redesign and a blog you should be reading if you practice patent law in the District of Delaware.
     
  • ITC 337 Law Blog by lawyers at Oblon Spivak.  This is not a regional blog, but it is at least a niche IP blog and it covers a venue that has been a glaring omission in the legal blog world;
     
  • Patent Law Insights* by Rajiv Sarathy of Perkins Coie.  Again not a regional blog, but Sarathy is putting up good content and his posting appears to be getting more frequent.
     
  • Virginia IP Law* by lawyers at Troutman Sanders.  This is a true regional IP blog, and it looks like a great addition to the club.
     
• At his IP Think Tank blog, Duncan Bucknell explains when you would not want to register your trademarks -- click here to read the post.  Bucknell makes good points, but it is also worth the read just to see a lawyer advocate against legal protection in a written document, that is not something you will see often.
   
• Blawg Review #212 (click here to read it) is up at Current Trends in Copyright, Trademark & Entertainment Law.  It is written around the country song “You Never Even Call Me By My Name” a/k/a “You Don’t Have To Call Me Darlin,’ Darlin’” (click to watch the video).  In honor of INTA being held this week in Seattle, there is a lot of IP-related content.

 

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Here are a few stories that do not warrant a full post:

• The mainstream media and the blogosphere are buzzing with predictions of who is on President Obama's shortlist for replacing Justice Souter  The Northern District's Judge Castillo and the Seventh Circuit's Judge Wood are both making many of the lists -- check out one list at the Daily Writ.  Both excellent choices.  Over the weekend, the Chicago Tribune ran a story about a local expectation that someone connected to the University of Chicago would be appointed to the Supreme Court during the Obama presidency.  I also wonder if the Northern District's Judge St. Eve is or should be on some shortlists.
   
• Ronald Slusky is bringing his two-day patent claim drafting seminar to Chicago May 19-20.  Slusky promises to teach "a comprehensive approach to analyzing inventions and capturing them in a sophisticated set of patent claims.  Through this interactive seminar, participants will enhance their skills in a classroom setting."  I have not attended Slusky's seminar myself, so I cannot speak to its value, but it definitely looks interesting.
  
  
• Last week the House held hearings about the Patent Reform Act.  Check out some commentary on the hearings at Patently-O.
   
• I got out of the habit of posting each week's Blawg Review, but last week's was both too good and too unique to pass up.  Blawg Review #209 is up at John Hochfelder's New York Injury Cases Blog (another LexBlog site) -- read it here.  Hochfelder tells the moving story of his father's life, the life of an American hero.   Blawg Review #210 is also available at the China Law Blog -- click here to read it.  It is also an excellent Review based loosely on the 90th anniversary of China's May 4th Movement.

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Chief Judge Holderman recently gave his annual State of the Northern District speech.  In a word, Judge Holderman said that the state of the District is "good."  Here are some of the highlights of the presentation (click here to read the Court's press release):

• Judge Gettleman intends to take senior status May 5 and Judge Coar intends to take senior status August 12.  Additionally, Magistrate Judge Ashman intends to retire later this year.
   
• Combined with the vacancy created when Judge Filip went to the Justice Department, when Judges Gettleman and Coar take senior status there will be three Article III and one magistrate vacancies on the Court.
   
• Civil filings were up 2.7% in 2008 over 2007.  And the Court resolves those disputes quickly.  The Northern District is in the top 10% of district court with its median time of 6.2 months to disposition.
   
• The Court is participating in a pilot program which allows jurors to fill out jury forms and get information about their service online.

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Judge Moran passed away yesterday.  Click here for the Northern District's official statement.*  This is a difficult post for me to write.  It is hard, maybe impossible, to capture Judge Moran's impact on the Northern District of Illinois in a relatively short blog post.  Judge Moran served as a federal district judge for almost thirty years, including as Chief Judge in the early 1990s.  Judge Moran also served Illinois as a state representative and spent several years in the Army after getting his undergraduate degree from the University of Michigan and before attending Harvard Law School. 

As a district judge, Judge Moran was respectful, thoughtful, and thorough.  Judge Moran's most lasting contributions to the Northern District were likely as a mentor and a writer.  Judge Moran's opinions were detailed and well reasoned, but most of all his opinions were written in straight forward language that opened the federal courts to people without legal training.  Judge Moran's passing is a significant loss.

[UPDATE:]  The Chicago Tribune posted a detailed obituary here with more comments from Judge Moran's peers and a more detailed account of his impressive legal career.

*  I will post more information regarding any memorials, as the information becomes available.  On a procedural note, Judge St. Eve is hearing any motions pending on Judge Moran's docket until further notice.

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The final edition of the 2009 Chicago IP Colloquium will be hosted tomorrow, April 21, by Loyola in Room 1103 of the law school.  Professor Frank Pasquale, of Seton Hall will present his paper, Search, Copyright, and Speech.

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On Monday, April 20, John Marshall is offering a free CLE presentation (click here to register) by Columbia Professor Clarisa Long.  The presentation is titled, The Political Economy of Intellectual Property Law.  I do not have more information than the title, but it appears to be a timely topic as the Patent Reform Acts works its way through Congress.

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Last week the Northern District of Illinois became the first federal court to allow complete online registration and payment for attorney admission -- click here to read the Clerk's press release.  You can now register for both the general and trial bars online and pay the registration fees by credit card.  This is another step toward getting the federal courts fully online, now if they could only end PACER access fees.

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The Northern District and the Federal Bar Association are seeking nominations for excellence in pro bono and public interest work. Nominations should be based upon work performed in civil cases before the Northern District which are no longer pending. Nominations should include:  the name and address of the nominee; a brief resume; the complete case title; case number and judge for each case; the work done by the nominee on the cases; and the brief summary of the reasons you believe the nominees pro bono work has been outstanding. 

Send nominations by this Friday, April 17 to:

Email:  ProBono2009_ILND@ilnd.uscourts.gov
Chambers of the Chief Judge James F. Holderman
219 South Dearborn Street, Suite 2548
Chicago, Illinois 60604

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Next Wednesday, April 8, John Marshall is offering a free (click here to register) CLE lecture by George Washington Professor John Duffy discussing how the state of federal laws may cause financial firms to shift from secret innovations to using patents and other legal mechanisms that foster innovation and transparency.

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Here are a few stories you do not want to miss:

• The Wisconsin Law Journal has an article based upon a Northern District of Illinois case in which a summary judgment decision hinged upon a failure to substantively answer one of the other party's Local Rule 56.1 statements of material fact.  In that case, a procedural objection was made, but no substantive answer was given.  So, when the objection was denied, the fact was deemed admitted.  This is a point I have made often:  follow Local Rule 56.1 closely and carefully.
   
• The Blog of the Legal Times reported that in a recent interview the Federal Circuit's Chief Judge Michel suggested that the next nominees to the Federal Circuit should have the following backgrounds:  a patent-experienced district judge; a trial lawyer with patent experience; or a chief corporate lawyer with patent experience.

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The Administrative Office of the U.S. Courts has issued its 2008 annually report* analyzing the federal court case load for fiscal year 2008.  The Northern District of Illinois remains an important IP court, ranking fourth in IP case filings for 2008, with 385 cases filed, behind the Central District of California, the Southern District of New York and the Northern District of California.

Nationwide, patent and trademark case filings remained steady with only slight increases, but copyright case filings fell over 25%.  One other interesting note, almost four percent of patent cases terminated in 2008 went through a trial.  That is a relatively large amount of trials in the federal courts where an average of 1% of cases are tried.  The 3% difference is not enough to show a post-eBay trend of increasing trials, but it could be the beginning of such a trend.

For more analysis of the report check out Peter Zura's 271 Patent Blog and Patently-O.

*  Click here to read the report.

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I have noticed that my news updates tend to be patent-focused, so today  they focus on trademarks and copyrights:

• IP Law & Business (subscription required to access the article) has an interesting article in the February/March 2009 issue identifying Justice Ginsburg as the Supreme Court's "champion of copyright holders" because of recent opinions supporting broader copyrights.  The article also identifies Justice Breyer, based on dissents in the same cases, as leading the cause for narrower copyrights.  And the article predicts that the Supreme Court is trending toward a narrower view of copyrights.
   
• Seattle Trademark Lawyer Michael Atkins has a timely post (click here to read it) that traces the March Madness trademark back to the Illinois high school basketball playoffs, as early as the 1940s.  The NCAA and the Illinois High School Association have since pooled their rights and both have a license to use the marks. 
   
• Victoria Pynchon has a great series of posts looking at laches in trademark law based upon a recent Ninth Circuit decision -- click here and here.

 

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Here are some IP stories with a broad focused from Chicago-based institutions:

• The latest edition of the John Marshall Review of Intellectual Property Law is available here.  The issue is focused on International Trade Commission ("ITC") litigation.  ITC is a powerful tool, because of the speed of the proceedings and because personal jurisdiction is not required, only that the product or service is brought into the United States.  One of the most interesting articles is an overview of the Administrative Law Judge's ("ALJ") role in Section 337 ITC proceedings by ALJ Carl Charneski -- click here to read the article.
   
• The University of Chicago Faculty Blog is wrapping up an intriguing blog conversation amongst intellectual heavyweights regarding the underpinnings of IP theory and whether the standard economic theories (incentivizing innovation) supporting IP should be broadened to included social and cultural theories (incentivizing broader participation) -- click here to read the last post and here to read the first.  I cannot do it justice in a paragraph or two, but as we look at various IP reforms in Congress this year, in particular the 2009 version of the Patent Reform Act, it is a good time to consider the underlying reasons and purposes of the IP laws.

 

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Here are several items from around the web that are worth your attention:

• The latest edition of Doug Lichtman's IP Colloquium is available here and it is another excellent listen.  The program looks at copyright's statutory damages regime through the lens of music downloading.  Lichtman moderates an impressive group of experts and stakeholders in the debate.  It would be worth the time, even if CLE credit was not available, but it is.
   
• Congratulations to Victoria Pynchon of the IP ADR Blog and Settle It Now on her move to ADR Services -- click here to read Pynchon's post about the move.
   
• The Alternative Patent Dispute Resolution Project at San Diego's Thomas Jefferson School of Law has an interesting survey up about how ADR should be used in patent cases.  No results yet, but I will discuss them here when they are made available.  The survey follows up a survey done ten years ago by IPWatchdog's Gene Quinn.  Click here to take the survey.

 

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The legal blogosphere is full of analysis and commentary regarding the Patent Reform Act, here is more of the best:

• FileWrapper;
   
• Patent Baristas (surveying industry responses to the Act);
   
• Patent Docs (discussing the witness list for Patent Reform Act hearings);
   
• Patently-O (damages provisions analysis), and here and here;
   
• Washington State Patent Law Blog.

And the Bilski amicus briefs began coming into the Supreme Court today.  Click here for Dennis Crouch's post with links to many of the amicus briefs.  And here for Crouch's post discussing the PTO's Bilski guidance to Examiners.

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As promised, the new Patent Reform Acts were introduced in Congress this week -- click here for the Senate bill and here for the House bill.  While I have not yet done a comprehensive review, I understand that the bills are largely similar.  Here are some highlights of the bills:

• They move from the current first to invent system to the international norm, first to file.
   
• Expanded reexamination and a new period of post-grant review.
   
• Damages provisions require that the specific contribution over the prior art be considered and allow consideration of licensing terms for similar noninfringing substitutes.  As Dennis Crouch points out, for alternatives in the public domain the comparable license could be free.
   
• Specifically allows for Federal Circuit jurisdiction of interlocutory claim construction appeals where the district court approves the appeal.
   
• Federal Circuit judges would no longer be required to live within fifty miles of the District of Columbia.
   
• The venue provisions are changed to narrow possible venues.

There is plenty of commentary in the blogosphere.  Here are some of the best:

• 271 Patent Blog (giving highlights, noting changes from the last version and do not miss Peter Zura's blog makeover);
   
• Patent Docs (discussing the Senate press conference announcing the Senate bill and noting BIO's response to the bills); and
   
• Patently-O (giving highlights and noting changes from the most recent attempted reforms) and here (reposting comments from Google's Head of Patents and Patent Strategy, Michelle Lee).

 

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Please join me this Friday, March 6 for the Northwestern Journal of Technology & Intellectual Property's annual symposium.  I will be moderating a debate over whether business methods should be patentable in light of the recent Bilski decision.  McDonnell Boehnen's Bob Irvine will argue for business methods and Knobbe Martens' Lauren Katzenellenbogen will argue against.  If that debate is not enough to get you to the Symposium, here is a sampling of the other excellent presentations:

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Here are several important, national patent and trademark stories:

• Via Patent Docs (which has a new web address -- http://www.patentdocs.org) a new patent reform bill (perhaps the first of three) may be issued as early as Monday, March 2 -- click here to read the Patent Docs post.
   
• President Obama has nominated Gary Locke to be the next Secretary of Commerce, which would  put Locke in charge of the PTO.  Locke, formerly the Governor of the state of Washington, is currently a partner in Davis Wright Tremaine's Seattle office.  For more on the appointment from the Chicago Tribune's Swamp blog, click here.  In his speech announcing the nomination, President Obama pointed out that among Locke's many impressive credentials and accomplishments, he is an Eagle Scout.  As an Eagle myself, I am always glad to see another succeed.

 

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The Northern District has set up a new page on its website collecting educational information about the Court and the Dirksen Courthouse.  The Northern District intends the site to help school groups planning to or interested in visiting the Court.  It is a great resource for visiting school groups, but it is also interesting for members of the Northern District Bar.  In addition to logistical information and educational background on the operations of the district courts, it also provides the Court's historic highlights.  For example, there are lists of famous trials and appeals.  No patent cases made the list, they were bumped by defendants like Capone, Hoffa, the Chicago Seven and public officials from Project Graylord.

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Here are a few stories and announcements from the Chicago IP world:

• Hinshaw & Culbertson LLP has launched a new blog:  Practical Ediscovery.  The blog is written by a team of the firm's attorney and focuses on practical considerations and approaches for handling issues arising with the production of electronically stored information. Check out Evan Brown's first post here.
   
• Anne Reed has a post that every patent litigator should read at Deliberations -- click here to read it.  Reed looked at the issue of how and when to introduce technical jargon to juries.  Reed makes to important points:  1) trust juror' intelligence, people like to learn; and 2) despite that, do not teach the jargon both unless and until it is relevant to the jury.
   

• There is an interesting new paper out arguing for a revised venue statute by Sidney Rosenzweig, a visiting fellow at the Progress and Freedom Foundation.  Rosenzweig argues for the following rewording of the venue statute:*

  Notwithstanding subsection 1391(c) of this title, any civil action for patent infringement may be brought against a corporation only in a judicial district:

  (1) where the defendant has its principal place of business or where the defendant is incorporated;

  (2) where the defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls;

  (3) where any defendant has committed a substantial portion of the acts of infringement and has a regular and established physical facility that it controls, if there is no other district in which the action may be brought under subsections (1) or (2); or

  (4) where any defendant has its principal place of business, where any defendant is incorporated, where any defendant may be found, or where any defendant has committed acts of infringement, if there is no other district in which the action may be brought under subsections (1), (2) or (3).

*  Click here to read the report.  And a hat tip to Peter Zura for identifying the paper.

 

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IPWatchdog Gene Quinn recently published his list of the top 26 patent blogs, based upon Technorati rankings (Quinn only considered blogs in the top 1M of the Technorati rankings) -- click here to read Quinn's post.  Quinn manually determined which blogs counted as patent blogs, and did nice work.  Although I would add the IP ADR Blog to the list.  While I do not place much weight in blog rangings, the list identified a few new blogs that I plan to follow, and it is gratifying to see that the Chicago IP Litigation Blog has a strong reader base in the patent world.

Here are Quinn's rankings:

1. Patently-O - Technorati Rank 21,202
2. Patent Baristas - Technorati Rank 61,134
3. IPWatchdog - Technorati Rank 80,245
4. Against Monopoly - Technorati Rank 80,245
5. Patently Silly - Technorati Rank 90,082
6. Chicago IP Litigation Blog - Technorati Rank 117,073
7. PHOSITA - Technorati Rank 101,726
8. Spicy IP - Technorati Rank 129,347
9. PLI Patent Practice Center - Technorati Rank 132,753
10. Duncan Bucknell Company’s IP Think Tank - Technorati Rank 136,348
11. Patent Prospector - Technorati  Rank 152,448
12. Securing Innovation - Technorati Rank 162,007
13. Peter Zura’s 271 Patent Blog - Technorati Rank 163,794
14. The Invent Blog- Technorati Rank 167,214
15. Promote the Progress - Technorati Rank 198,166
16. I/P Updates- Technorati Rank 213,371
17. IP NewsFlash- Technorati Rank 221,777
18. Orange Book Blog - Technorati Rank 221,777
19. The IP Factor - Technorati Rank 250,588
20. Philip Brook’s Patent Infringement Updates- Technorati Rank 273,434
21. Patent Docs - Technorati Rank 300,413
22. Antiticpate This! - Technorati Rank 351,677
23. Patent Fools (now operated by IPWatchdog.com) - Technorati Rank 351,092
24. Patentably Defined - Technorati Rank 614,978
25. Steve van Dulke’s Patent Blog -  Technorati Rank 676,101
26. IP Spotlight - Technorati Rank 752,199

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On March 3, the Northern District will celebrate 190 years of Illinois federal courts.  The celebration begins at 3:00 pm with a program in the Dirksen Courthouse ceremonial courtroom, Room 2525.  The Northern District bar is invited to the celebration, e-mail rsvps to ilnd_190th_Anniversary@ilnd.uscourts.gov.

The celebration will include a panel of Northern District judges discussing "The Future of the Federal Courts" and a sketch of the court's history by Richard Cahan, the author of A Court That Shaped America: Chicago’s Federal District Court from Abe Lincoln to Abbie Hoffman.  The celebration also serves as the grand opening of the court's exhibit:  “The 190th Anniversary of
the United States District Court in Illinois: A Celebration of the Federal Judiciary’s Contribution
to Illinois and the Nation.”  The exhibit, featuring court artifacts, photographs and sketches will remain on display through May 1, 2009, and will be located on the second floor of the Dirksen United States Courthouse.

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Here are several Northern District and IP news stories that did not warrant separate posts:

• The Northern District's new Rockford courthouse is being named for retired Judge Roszkowski.  Judge Roszkowski was the first federal judge permanently seated in Rockford and served for over twenty years.
   
• Blawg Review #198 is up at the East Central Illinois Criminal Law & DUI Blog (click here to read it).  As you might expect based upon the blog's subject matter, there is not a lot of IP content.  But there are several Illinois-specific stories that Blog readers may find interesting.  For example, My Law Life warns that an Illinois statute makes it illegal to jog (or walk) on Illinois roadways where sidewalks are available -- click here to read the post.
   
• Several blogs are reporting that patent reform may be back on in Congress this year:  Patently-O; and 271 Patent Blog.

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At his IP Think Tank Blog, Duncan Bucknell reflected upon Doug Lichtman's recent IP Colloquium interview with Federal Circuit Chief Judge Michel -- click here to read Bucknell's post and here to get the Michel interview, which you is well worth any patent litigator's time.  Bucknell's take away from the interview is a very timely question in light of the news that patent reform may be back before Congress in 2009:

If the intellectual property laws could be codified so that the result in intellectual property disputes is always certain - even though it might not be fair - would that be ok? Or would you prefer that the legislative guidelines remain broad and the fine details in each circumstance be worked out in context - in litigation? (As happens today?)

 

I think this is a difficult question to answer.  My experience is that many, maybe most, would like certainty over justice in the abstract.  It makes sense to reduce transaction costs and to provide businesses increased certainty.  But when asked the same question about their own IP case, most prefer a more complex and less certain system designed with the goal of reaching fair (I would substitute the word "just" here) outcomes.

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The next installment of the Spring 2009 Chicago Intellectual Property Colloquium is this Tuesday, February 10, at 4:00 pm in Room 1103 at Loyola University Chicago Law School.*  This installment of the Colloquium will be especially interesting to the Blog's readers, as the paper to be presented is directly focused on patent litigation.  Professor Colleen Chien of Santa Clara University Law School will present her paper:  Narratives and Evidence in the Litigation of High-Tech Patents.  The event will be held at Loyola University Chicago School of Law, 25 East Pearson Street, on Tuesday, February 10, 2009, 4:00 p.m. in Room 1103.  Chien's paper uses data from the Stanford IP Litigation Clearinghouse.

*  The Colloquium is jointly sponsored by Chicago-Kent and Loyola University Chicago.

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Yesterday, President Obama announced that he was appointing Senator Judd Gregg (R-N.H.) to become the next Secretary of Commerce, a significant position in the intellectual property world.  As Secretary of Commerce, Gregg will oversee the PTO and have a strong voice in any patent reform that might occur while he is Secretary.  The blogosphere and mainstream media are slowly providing background regarding Gregg:*

• Patently-O
   
• Peter Zura's 271 Patent Blog (highlighting this Congressional Quarterly article which points out that Gregg once voted to abolish the Department of Commerce).
   
• Washington Post's 44 Blog.

*  I will update this post with more links if I see anything especially valuable.

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The Chicago Tribune ran an interesting article by Ann Meyer yesterday (click here to read it) discussing companies monetizing IP, specifically patents and dormant trademarks, not just through the more traditional means of litigation and licensing, but also through sales of the IP.  While there are numerous brokers who help sell IP, the article focused on Chicago-based Ocean Tomo's patent auctions.  It is not very surprising that in a down economy companies are looking to their IP as a significant source of value.  Nor is it surprising that companies would seek to avoid the upfront costs of both licensing and litigation in favor of a more immediate sale for IP the company is not using.  Of course, the continued health of the patent, trademark and copyright dockets in the Northern District of Illinois and across the country prove that companies continue to monetize their IP and protect market space from competitors through more traditional means as well.

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Here is some IP-related news for your weekend enjoyment:

• Seattle Trademark Lawyer Mike Graham warns that the excellent Stanford IP Clearinghouse may not be counting all cases in its data based on Graham's comparison of 2008 trademark filings in the Western District of Washington using PACER and the Stanford IP Clearinghouse -- click here to read the post.  I echo Graham's statement that even if there are discrepancies, or even missing data, the Stanford IP Clearinghouse is an excellent resource with vast potential.
   
• Blawg Review #196 was hosted on Australia Day this week by Peter Black's Freedom to Differ, an Australian blog focused on internet regulation -- click here to read the Review.    After tackling controversy surrounding the date of Australia day, Black discusses several IP issues including Duncan Bucknell's post regarding YouTube copyright issues; and Brendan Scott's series on closed source software.

 

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Last fall, the Federal Circuit issued an en banc decision in In re Bilski, holding that the “machine-or-transformation test” was the only test for determining whether a claimed process was eligible for patenting pursuant to § 101. The decision required that a process either:  1) be tied to a particular machine or apparatus; or 2) transform an article into a different state or thing.  The Federal Circuit affirmed the PTO's rejection of Bilski's claimed method of hedging the risk of bad weather through commodities trading as lacking patentable subject matter.  The Federal Circuit held that the method failed the machine-or-transformation test.  Click here for the Federal Circuit decision.

Earlier this week, Bilski petitioned the Supreme Court for a writ of certiorari to consider the following two issues:

 

Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing … despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”

Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.

Click here to read the petition.  Pursuant to Supreme Court procedural rules, amici briefs are due at the end of February, although the PTO can seek an extension.

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Magistrate Judge Mason's term ends on September 28, 2009.  As part of considering reappointing Judge Mason for an additional eight year term, the Northern District is establishing an advisory panel of Northern District citizens.  Additionally, the Northern District Clerk is accepting written comments to regarding Judge Mason to assist the panel until March 20, 2009 at the following address:

Magistrate Judge Advisory Panel
c/o Mr. Michael W. Dobbins
Clerk of Court
U.S. District Court
219 South Dearborn St. - Rm. 2050
Chicago, IL 60604

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Here are several IP-related stories and news items that I found valuable or interesting:

• The Maryland IP Law Blog reports that Patent Secrecy Act activity was down in 2008, with a significant reduction in issuance of new secrecy orders -- down to 68 in 2008 from 128 in 2009 -- and existing secrecy orders down about .5% to 5,023 total in FY 2008 -- click here to read the post.
   
• Daily Writing Tips warns against genericide -- the death of a trademark caused by using the mark as a generic term -- and gives numerous examples.
   
• A sincere thank you to Patent Baristas; Rush on Business; and Securing Innovation.  I do not buy into the blog awards  or best blog lists, but it is an honor  to be nominated for Blawg Review of the year by such accomplished bloggers and lawyers.  My 2008 Blawg Review was an ode to world record swims and America's favorite Olympic son Michael Phelps -- click here to read it.

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While I head out to watch Chicago's adopted son, President-elect Barack Obama become the nation's next president, I thought it was appropriate to provide some thoughts on where the new administration might lead the IP community.  I am an IP litigator and fortunate enough to be able to watch one of the most amazing spectacles of our democracy, the peaceful transfer of power, but I do not pretend to be either a prognosticator or political expert.  So I will leave the predictions to those who feel qualified to make predictions:

• Computer Business Review magazine's Jason Stamper Blog;
   
• IAM Magazine Blog;
  
  
• Intellectual Property Watch Blog;
   
• National Journal's Tech Daily Dose; and
  
  
• Patent Baristas.

[UPDATE:]  Duncan Bucknell's weekly podcast, which is always worth your time, discussed how the Obama administration might impact US IP policy -- click here to listen to it.

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2008 was another busy IP year for the Northern District of Illinois.  Once again, there was an increase in patent case filings, and the Northern District continues to be among the top five patent dockets in the country and the most active district court in the Seventh Circuit by far.  Trademark cases were steady, with only two fewer filings than in 2007.  And as with its patent docket, the Northern District's trademark docket continues to be one of the five most active in the country.  Finally, copyright cases continued a relatively steep decline.  But despite the decline, the Northern District maintains one of the most active copyright dockets outside of California and the Southern District of New York.  This chart shows the number of yearly patent, trademark and copyright cases filed in the Northern District during calendar years 2006 through 2008 (data gathered from the Stanford IP Clearinghouse):

2008 Northern District IP Case Filings

Case Type	2006	2007	2008
Patent	126	141	151
Trademark	136	130	128
Copyright	194	123	81

 

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Making good on his promise to turn his IP Colloquium into National Public Radio for IP law, Doug Lichtman's newest offering is an extended interview with Federal Circuit Chief Judge Michel.  Click here to listen to Licthman's interview, you can even apply for New York or California CLE credit after listening.  Here are some of Judge Michel's more interesting observations:

• Petitions for rehearing are too often "shallow and weak."
   
• Votes denying en banc rehearings are often close, making the poor petitions for rehearing especially surprising and disappointing. 
   
• Parties interested in supporting cases with amicus briefs should consider filing briefs supporting rehearing petitions.  An amicus brief that was both well researched and well written could play an important role in strengthening a case's en banc potential and tipping close votes for rehearing. 
   
• In re Bilski did not answer all of the 101 questions because not all of the questions were raised in the case or ripe for consideration.  It will take a series of 101 cases to flesh out the post-Bilski state of the law.
   
• Judge Michel is hopeful that the new patent jury instructions -- click here to read the Blog's post about them -- will help bring some clarity and continuity to, among other things, damages and obviousness instructions, although at the time of the interview it appeared that he had not seen the instructions yet.
   
• The Doctrine of Equivalents has almost "dried up."

 

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It is the time of year for the Best of 2008 lists.  The legal blogosphere* is no different as evidenced by Blawg Review #193 -- click here to read it -- recounting the 51 weekly Reviews from this year and soliciting nominations for the annual Review of the Year award from anyone who has hosted or is scheduled to host a Review. As someone who has hosted (click here to read my 2008 Review # 173, and who plans to host another in 2009, I exercise my right to vote for the following Reviews:

• Rush on Business -- Click here to read Review #147 which followed law blogs as they participated in Iowa's famous RAGBRAI cycling race/ride (I love cycling).
   
• Patent Baristas -- Click here to read Review #161 which provided a powerful message on Memorial Day.
   
• Likelihood of Confusion -- Click here to read Review #191 which took a legal look at the possible explanations for the miracle of Chanukah.

*  Ed. how can you insist upon Blawg Review, but than refer to the legal blogosphere.  Are you just trying to get to Mr. O'Keefe?

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The Stanford Law School launched its Intellectual Property Litigation Clearinghouse (“IPLC”) earlier this month – click here to go to the site (registration required).  The IPLC is a  searchable database of IP lawsuit filings and outcomes since 2000, at least for patents, trade secret, trademark and copyright information is currently a bit more limited.  IPLC shows that patent cases have remained relatively constant during this decade, but that the number of patent defendants has increased dramatically. It also proves what Northern District litigators already know, the vast majority of Northern District cases, 86%, settle (this figure includes consent judgments). 1% of cases are resolved on procedural issues. That leaves about 12% of cases to be decided on the merits. Defendants win two-thirds of those cases, 8%, and plaintiffs win the remainder, 4%.

 

 

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I am a little late to this story, but before Thanksgiving the new e-Justice Blog published a list of the top 50 internet and digital law blogs -- click here for the list.  I am honored that this blog made the e-Justice list, especially when you look at the other blogs on the list.  Here are some of the blogs, listed more or less by e-Justice's categories:

Academic Blogs

• Berkman Center for Internet and Society
   
• Stanford Center for Internet and Society
   
• Law Blog (John Marshall's own Prof. Sorkin)
   
• Lessig
   
• Eric Goldman's Technology & Marketing Law Blog

Copyright, Intellectual Property and Defamation

• The Trademark Blog
   
• Internet Law - Copyright Law

New Media and Digital Law

• New Media and Technology Law Blog (another LexBlog creation) 
   
• Silicon Valley Media Law Blog

Firms & Lawyers

• Technology, eBusiness and Digital Media Law Blog (another LexBlog creation)
   
• Internet Law Attorney Blog
   
• Ernie the Attorney
   
• Internet Cases

News and Business

• Gahtan’s Technology and Internet Law Blog
   
• Technology and Marketing Law Blog
   
• DennisKennedy

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Polyad Co. v. Indopco Inc., No. 06 C 5732, 2008 WL 4287623 (N.D. Ill. Sep. 12, 2008) (Coar, J.).

Judge Coar granted defendant Indopco's motion for summary judgment regarding plaintiff Polyad's tortious interference and unjust enrichment claims.  I do not normally deal with diversity cases based solely upon state law causes of action, but one of the alleged tortious interferences in this case was Indopco's allegedly false statements that Polyad's products may have infringed Indopco's patents.  But the Court held that the evidence only showed that Indopco only suggested that Polyad's products "may" have infringed patents and suggested that the customer ask Polyad for assurances of noninfringement.  Furthermore, Indopco was actually testing Polyad's products to determine whether they infringed.  Ultimately, Indopco's tests were inconclusive and Indopco did not pursue a patent infringement case.  But the possibility of infringement and Indopco's inconclusive testing were sufficient for a grant of summary judgment in Indopco's favor.

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Litigators universally struggle to enforce order over complex cases, and patent cases are some of the most difficult.  They often include multiple patents, numerous accused products, inventors, experts and often various contracts.  Generating systems for both capturing and organizing facts and issues is critical, but difficult.  And once you organize it for yourself, you need to find a way to organize it for the Court and then the jury, an even more difficult task.

I have generally used notebooks including marked up copies of the patents, key prior art, any contracts , accused product information and other hot documents.  Others use computer programs or even whiteboards.  But the Settlement Perspectives Blog (via Vickie Pynchon at the IP ADR Blog) has converted me to mind mapping -- click here for the Settlement Perspectives post and here for the IP ADR Blog post.  Mind maps allow you to graphically depict all of the critical facts and issues in your case, how they interconnect and to hyperlink to the relevant documents or testimony.  And the best part is that you can burn your mind map onto a DVD and offer it to the judge as an aid for resolving summary judgment motions or construing claims.  This one graphic depiction of your case with hyperlinks to the evidence could be more powerful than a twenty-five page brief explaining your arguments in detail.  Mind maps are excellent tools for creating order from the disorderly facts of a litigation. 

Here is an example of what a mind map can look like:

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Blawg Review #189 is up at Colin Samuels' Infamy or Praise Blog -- click here to read it.  As would be expected of a Blawg Review Sherpa, Samuels' provided an epic Review, centered around The Rime of the Ancient Mariner.  In addition to excellent writing focused around a strong theme, Samuels features some excellent IP content, including my post about the unequal application of Twombly pleading standards in patent cases:

Maya Richard suggested four tactics to preemptively protect patent assets from patent trolls: monitoring patent filings for applications related to your portfolio; hedging risk with patent infringement insurance; retaining skilled IP counsel to build a case for major patent assets; and joining an industry protection group. Also writing on a patent-related topic was R. David Donoghue, who noted that despite the Twombly decision, "many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard." He suggests remedies for this uneven application of the Twombly standards.

And as an encore, after seeing Twitter driving traffic to his Review, Samuels posted a list of the Twitter accounts of the bloggers featured in Blawg Review #189 -- click here to read it.

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Here are several blog posts that are worth your time on this Monday morning:

• At Deliberations, Anne Reed warns of six mistakes that can derail voir dire -- click here to read the post.  Anyone who follows Deliberations knows that when Reed discusses voir dire, everyone should listen.
   
• The Federal Circuit heard oral argument in Tafas v. Dudas last week.  Here is some of the commentary:  Patent Baristas; Patently-O; & PLI Blog.
   
• At IP ADR Blog, Victoria Pynchon offers to arbitrate your patent case and says under expedited AAA commercial rules you can get a decision within 45 days of selecting the arbitrator -- click here to read the post.  Amazing, I may try that in the dispute resolution clause of my next license agreement.
   
• Anyone who read his 2007 NYC Marathon Blawg Review will not be surprised that Eric Turkewitz's post-Thanksgiving Blawg Review last week at his New York Personal Injury Law Blog was one of the best of the year -- click here to read it.

 

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I published an article  in the most recent edition of the John Marshall Review of Intellectual Property Law surveying the application of the Twombly "plausibility" pleading standard, in place of the former any set of facts regime, to patent cases -- The Uneven Application of Twombly in Patent Cases: An Argument for Leveling the Playing Field (click here to read it).  I found that district courts have largely followed the Federal Circuit's one case addressing Twombly, which unfortunately involved a pro se plaintiff, and held that Twombly did not change the pleading standards for patent plaintiffs.  But despite that ruling, many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard.  This creates a harmful dichotomy which can be remedied in two ways:  1) as some courts already do, use strict Local Patent Rules to require early disclosures of plaintiff's claims followed in short order by defendant's defenses; or 2) as at least the Western District of Wisconsin already does, require patent plaintiffs to identify the asserted claims and the accused products.  Either or both level the playing field for the parties and come at little cost to plaintiffs who already have a Fed. R. Civ. P. 11 pre-suit investigation requirement.

In addition to my article, there are several excellent pieces in Volume 8, Issue 1 of Review of Intellectual Property Law, including:

• European IP attorney Paul Cole provides a Eurpoean view of the KSR obviousness standard -- click here to read the article;
   
• Timothy Trainer looks at inconsistent international application of TRIPS and discusses what can be done to better protect intellectual property worldwide -- click here to read the article.
   
• Lawrence Ebert (of IPBiz fame) draws lessons from the patenting and licensing of the transistor -- click here to read the article;
   

Continue Reading...

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As I mentioned here, I recently gave a presentation for the National Constitution Center on settlement agreement best practices.  I focused on the important principles of:  knowing your client's and opponent's needs; generating trust between the parties during the negotiation and through any ongoing responsibilities pursuant to the agreement; bringing in experts on various topics; and making sure that your agreement and its terms had buy in from all relevant client stakeholders (not just legal, but accounting, media relations, tax and the appropriate C-level or business executives.  You can see a copy of the slides here.

Mike Graham, the Seattle Trademark Lawyer, is presenting soon on a related topic, except he is looking at planning ahead for potential litigation in trademark licensing.  It promises to be a very interesting presentation based on Graham's initial notes  -- click here to read them.  Just as litigators do well to bring in licensing experts to finalize settlement agreements, licensing attorneys do well to have a litigator's perspective on their agreements.

[UPDATE:]  I just learned that Seattle Trademark Lawyer (the blog, not Graham) turned two yesterday -- click here to read Graham's birthday post.  Congratulations Mike.  Two years of top quality content, and going strong.  I started this blog a few months before Graham started STL.  It is nice to see my contemporaries succeeding.

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Here are several IP posts that you should check out:

• The MTTLR Blog's Lauren Strandbergh has an interesting post (click here for it) about the implications of the Google Book's settlement and how the Book Rights Registry -- a Copyright Clearance Center or ASCAP-like entity that will, among other things, distribute proceeds from out-of-print books to the authors or rights holders  -- will change the publishing industry.  Strandbergh raises the right questions, but we will only get answers as we ee how the system works.
   
• [UPDATE:]  Speaking of the Copyright Clearance Center and ASCAP, the WSJ Law Blog has a post today (click here to read it) based upon this WSJ story (subscription required for the full text) about two new companies that are aggregating patents and guaranteeing never to assert those patents against their members.  It is not clear from the story if they plan to assert them against non-members, but it is an interesting move in the struggle between non-practicing entities and corporations that feel targeted by patent litigation.  I believe there have been industry-specific versions of these companies in Europe for some time.  As I understand some of those entities, the do assert their patents against non-members to help fund operations.
   
• Victoria Pynchon offers advice for dealing with those uncomfortable Thanksgiving political conversations with family and friends at her Settle It Now Negotiation blog -- click here to read it.  The advice translates well for unwinable conversations with opposing counsel.
   
• This week's Blawg Review is up at LawyerCasting -- click here to read it.  It provides lots of advice for lawyers dealing with the tough economic times.

 

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Time has  published a list of 2008's best inventions -- click here to read it.  Here are a couple of inventions with Chicago connections:

• 12.  MacroMarkets -- MacroMarkets was instrumental in  starting  housing futures trading on the Chicago Mercantile Exchange (the Chicago connection).  Now MacroMarkets is working on exchange-traded funds that allow regular investors to bet on housing futures.
   
• 23.  The Branded Candidate -- This invention is actually about a trademark and a brand.  Chicago's own President-elect Obama created a marketing sensation with his branding this year.  Here is how Time describes it:

Barack Obama hat: $15. Barack Obama special-edition Beyoncé T shirt: $60. Devising a system to make and sell your own swag and garner millions in profits, not to mention the phone numbers and addresses of hundreds of thousands of potential volunteers? Priceless.

Hat tip to Dennis Crouch who identified Time's list at Patently-O.

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Blawg Review #186 is up at Res Ipsa -- click here to read it.  Befitting a blog that focuses on the use of technology in the law, there is plenty of IP content:

• Traverse Legal has a great post, including a podcast, (click here to read/listen to it) explaining that while it is possible to register your marks without a lawyer, the smart decision is to use a lawyer that is an expert in the field.
   
• IP's What's Up makes the argument that open source licenses are a powerful use of a copyright -- click here to read it.
   
• The mighty IPKat looks at the best IP advice provided by its readers in response to a recent contest -- click here to read the advice and IP Kat's thoughts.

Finally, it is not directly IP-related, but the Review also looks at an interesting technology debate that is occupying the legal blogosphere -- the value of Twitter as a legal marketing tool.  Calling himself a curmudgeon, David Giacalone at f/k/a argues against Twitter, or at least questions its business development value  -- click here to read the post, which has generated significant discussion and response.  LexBlog's Kevin O'Keefe responded strongly arguing Twitter's value -- click here to read it.  O'Keefe's arguments for Twitter boil down to the fact that Twitter is a powerful networking tool.  It allows colleagues around the country and world with common backgrounds and issues to find each other and engage in far-reaching conversations.  And building networks builds both professional satisfaction and business.  I agree with O'Keefe  whole-heartedly.  But I also understand Giacalone's uncertainty and lack of comfort with Twitter  It takes most lawyers multiple tries to get Twitter and more than that to get comfortable using it.  Hopefully, Giacalone will keep trying and figure it out eventually.

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As usual, the Northern District will be closed for both Thanksgiving Day and the Friday after, November 27 and 28.  Additionally, the Clerk's office will close this Thursday, November 20 from 3:30-4:30 pm for a special meeting.  The drop box and ECF filing will still be available, but if you want to file in person get there earlier in the day or after 4:30.

[UPDATE:]  To those who have wondered, the more standard case analysis posts will be returning shortly -- likely late this week, but at least early next.  I am working through procedures with my new shop.

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Earlier this week I had the opportunity to speak with the folks at Docket Navigator about their powerful new patent docket database and search tool.  I do not do many product reviews, but Docket Navigator's patent docket database really struck me.  You may already know them from their free, daily email that aggregates new patent filings nationwide, as well as patent judgments, injunctions and selected patent decisions from courts across the country.  If you do not get the newsletter, you should check it out.

I love the newsletter, but was surprised to learn that the newsletter is eclipsed by Docket Navigator's patent docket database and search tool.  The search tool is currently in beta testing -- click here for a tour.  But even while they are working the kinks out and adding functionality, it is impressive.  The database includes dockets for every case going back to those that were active in mid-2007.  From the database you can look at the docket and click on links to pdfs of significant decisions or papers.  You can also search the database to find every case involving a selected patent or for statistics about the patent cases a particular judge has had.  The judge pages include very specific information and statistics about how many and how that judge has decided numerous issues.  For example, you can see how many patent case motions to transfer a judge has ruled on and how many were granted versus denied.

Docket Navigator has taken the information available to every lawyer and litigant on Pacer and turned it into a much more powerful tool.  But there is one more feature that warrants special attention.  Docket Navigator has searched all of the claim construction opinions in its database and come up with a database of 15,000 (and growing) construed claim terms.  You can search the database for your terms and find decisions nationwide about them.  It is an incredible resource for locating persuasive decisions and potential, new claim construction arguments.

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This week's Blawg Review #185 is up at Duncan Bucknell's IP Think Tank -- click here to read it.  It will be no surprise to Bucknell's readers (including me) that his theme is global intellectual property.  Of course, Bucknell focuses on the Bilski decision -- for example, IP Blawg and IP Spotlight.  Bucknell also looks at some posts regarding how the changing administration will impact IP law, including two posts from Patent Docs (click here and here) and the IAM Blog.

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Earlier this week, I joined Holland & Knight as a partner in the litigation and intellectual property groups.  What does that mean for the blog?  Not much.  You will notice an updated bio page, some changed branding and the comments have been turned off.  Otherwise, I am still based in Chicago and you can expect the same focus on Northern District of Illinois IP issues and the same blog content.

So why am I telling you?  Largely so that you will know where to reach me when you need to.  And because I am excited about the move.  The move holds great potential for my career and for my clients.  And this is a good time to remind you that, per the disclaimers, nothing on this Blog should be construed as legal advice.

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Here are some interesting IP-related posts and because everyone (at least in Chicago) still seems to have last week's election on their minds, the first is election related:

• The MTTLR Blog's Dorothy Eshelman has an interesting post on whether the use of debate clips by, among others, the candidates involved is fair use -- click here to read it.  I agree with Eshelman's conclusion that it is probably not fair use.  And I agree that debate footage should be dedicated to the public domain, at least on a limited basis.  It would be an easy matter for debate commissions to require that for the privilege of filming the debate networks agree that their footage be available in the public domain so long as it is not used near in time to the debate itself (perhaps within an hour) and so long as clips are limited to no longer than a few minutes or one question and set of answers. 
   
• The MTTLR Blog's Sherri Nazarian looks at the application of the Computer Fraud and Abuse Act ("CFAA") to hacking VP candidate Sarah Palin's email and argues that the CFAA needs to be modernized -- click here to read the post.  Nazarian explains that the email hacking was not enough to trigger the CFAA, enacted in 1984.  Perhaps it is time to update the 24 year old CFAA to meet the massive changes in technology.

 

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LexBlog's Kevin O'Keefe is in Chicago this week and, as is his custom, he is hosting a gathering for bloggers (or whoever wants to come).  If you want to meet O'Keefe or me, come by Poag Mahone's -- 333 S Wells St. -- at 6pm this Thursday, November 6.  See you there. 

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The Bilski analyzers are moving away from the opinion itself, and toward the practical impacts of the decision and the unanswered questions it left, as opinions always do.  Here are several of the best:

• 271 Patent Blog (asking whether a method for swinging on a swing meets the Bilski standard);
   
• FileWrapper;
   
• Maryland IP Law;
   
• Patently-O (and here and here and here and here); and
   
• The Prior Art.

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Make sure to vote today, if you have not already.  Once you have voted, check out the special election-themed Blawg Review at the Faculty Lounge -- click here to read it.  This week's Review is light on IP issues, instead focusing on presidential politics and campaigns.  But it is still a good read, particularly on a day when much of America has the election on its mind.

Additionally, check out last week's Blawg Review #183 at the UCL Practitioner -- click here to read it.  Last week's Review focused on California bloggers and had some interesting IP content.

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Here are some IP stories that will give you weekend reading and viewing:

• UCLA Professor Doug Lichtman launched the IP Colloquium, a series of podcasts focused on the most pressing IP issues of the day.  Lichtman tells me he aspires for the IP Colloquium to become National Public Radio for IP lawyers.  Lichtman is well on his way.  In his first episode, Lichtman discusses copyright issue with the Electronic Frontier Foundation's Fred von Lohmann.  And if the content is not enough, Lichtman has also secured CLE credit in several states.
   
• IPTABlog has a comprehensive post -- click here to read it -- on Google's settlement with the Association of American Publishers over the Google Book Search.  The post links to much of the media coverage, as well as the settlement agreement.  Also, check out the WSJ Law Blog's post on the settlement's impact on related cases (click here to read it) and Madisonian's take on the issues springing from the settlement (click here to read that post).

 

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In re Bilski, __ F.3d __ (Fed. Cir. 2008) (en banc).*

Chief Judge Michel, writing for a nine judge majority, affirmed the Board of Patent Appeals and Interferences' finding that Bilski's invention -- a commodities trading method for hedging risks -- did not meet the 35 U.S.C. § 101 patentable subject matter requirement.  The Federal Circuit held that State Street's "useful, concrete, and tangible result" test was insufficient to determine patentability -- disagreements have already started regarding whether State Street was narrowed or overturned.  The Federal Circuit held that the Supreme Court's "machine-or-transformation" test was the only test for determining patentability:

A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.

I found Judge Dyk's concurrence tracing the history of the "machine-or-transformation" test back to the Patent Act of 1793 especially interesting:

In fact, the unpatentability of processes not involving manufactures, machines, or compositions of matter has been firmly embedded in the statute since the time of the Patent Act of 1793, ch. 11, 1 Stat. 318 (1793).

Continue Reading...

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This is not directly related to IP law, and is not legal advice or an endorsement of any candidate.  I am supporting a blog initiative to get state voting rules on the web, as a public service to blog readers. The following information comes from the Cook County Clerk’s Office election site, a great place if you have voting or election questions. Also, early voting ends tomorrow evening. After that, you must vote on election day, Tuesday, November 4 or by absentee ballot. Finally, to provide an IP connection to this post, click here for an interesting Patent Docs post outlining each presidential candidate’s respective positions on patent law issues.

Continue Reading...

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Here are several stories that did not warrant a full post, or that were so well done by another blogger that there was no point in recreating the wheel:

• The Federal Circuit upheld Judge Coar's preliminary injunction in Abbott v. Sandoz, No. 05 C 5373 -- click here to read the Federal Circuit's opinion and here to read the Blog's prior posts on the case.  Dennis Crouch at Patently-O has a good post explaining the central issue of the case -- a defendant's burden of proof regarding invalidity in the likelihood of success analysis.  Judge Newman wrote the majority decision with Judge Gajarsa dissenting.  Crouch sees the case as a "good vehicle" for en banc review of the preliminary injunction standard.
   
• Ocean Tomo is holding its 8th IP auction at home in Chicago this Wednesday and Thursday.
   

Continue Reading...

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Blawg Review #182 is up at Dave Gulbransen's blog -- click here to read it.  Having just passed the Illinois bar exam (congratulations), Gulbransen did his review in the form of the multiple choice portion of the exam.  You can even check your answers.  Gulbransen's exam contains a heavy dose of IP, unlike the exam itself.  Here are a few of the IP posts:

• Citizen Media Law Project -- discussing Digital Millennium Copyright Act take down notices as used by, or against, the presidential campaigns and how the appeal process does not help campaigns because it takes 10 - 14 days.
   
• Las Vegas Trademark Attorney -- discussing a suit over the Little House on the Prairie trademarks.
   
• Mass Law Blog -- discussing an award of attorney's fees based upon "advocacy abuse" when plaintiff's counsel argued outside the claim constructions at trial.

 

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Diane Levin hosted this week's Blawg Review #181 at Mediation Channel -- click here to read it.  As you would expect from one of Ed.'s Blawg Review Sherpas, the Review is both well-written and exhaustive.  Levin's focus was International Conflict Resolution Day.  And when Ed. realized that he had created an international incident by not acknowledging Canadian Thanksgiving, Levin even updated the Review with some Canadian content.  By the way, happy Thanksgiving to the Blog's Canadian friends and readers.

Among other posts, Levin highlighted the October Carnival of Trust, hosted by its founder Charles Green at Trust Matters -- click here to read it.  Green links to a post at Without Wax about what to do when your trust in someone begins slipping away -- click here to read it.  The blog, and the post, appear to be focused more on family and friend relationships.  But the issue and the proposed resolution translate to the legal realm because trust is paramount in the law just as it is with family and friends -- with courts, with opposing counsel, with clients and with colleagues.  Without Wax suggests that instead of pulling back when trust is disappearing, you engage that person and the problem.  Silence rarely fixes trust.  You are far better off facing the issue and trying to fix the problem so that it does not recur, whether it is a misunderstanding or an actual breach of trust.

Finally, Larry Lessig's enthralling Wall Street Journal op-ed piece about the current state of copyright law and whether it fits with modern life did not make the Review (probably because it was not a blog post), but it is worth a read -- click here for Lessig's op-ed.  Or you could skip right to Victoria Pynchon's excellent analysis at the IP ADR Blog -- click here to read Pynchon's post.

[UPDATE]:  Lessig makes clear at his Lessig 2.0 blog that despite the title the WSJ gave his op-ed -- A Defense of Piracy -- he does not support piracy.  Lessig is proposing conforming copyright law to what he sees as the realities of modern living.

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The Blawg Reviews are not belated, just my post about them.  Last week's Blawg Review #179 is up at Securing Innovation -- click here to read it.  It is an ode to the ballpoint pen on its seventieth anniversary.  It was a transformative invention, dispersing the power of the pen much more broadly across societies.  I am a rollerball guy, but it is still a great review.  And as would be expected from an IP-focused blog, there is a heavy dose of IP.

This week's Blawg Review #180 is up at Law Pundit -- click here to read it.  Law Pundit focuses on German-American Day with exhaustive information about German-Americans and Oktoberfest.  After completing Review #179, Securing Innovation also plays a role in #180 because of its highlight of an article suggesting that the US nonpracticing entity patent litigation strategy has found its way to Germany and Europe generally -- click here for Phillipa Maister's IP Law & Business article discussing NPE's in Europe.

Next week's Blawg Reivew #181 by the Mediation Channel.

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Several stories and updates that are worth a mention, but do not warrant a separate post:

• I was going to write a post explaining new Federal Rule of Evidence 502, but Beck & Herrmann at Drug & Device Law beat me to it and did an excellent job (actually, they did not, but their colleague David B. Alden of Jones Day  did) -- click here to read the post.  Every litigator should read FRE 502 for themselves and then read the Drug & Device Law post or some other guide.  It is a significant rule, even though it codifies much of what was already the standard practice.
   
• Anne Reed at Deliberations provides a series of links to the most recent edition of The Jury Expert -- click here for Reed's post.  If you do not already subscribe to The Jury Expert, do it now.  This is a fabulous publication.  My favorite article is by Oklahoma State's Edward Burkley and Darshon Anderson, discussing translating the science of persuasion into the courtroom.  Anyone who makes it their business to persuade judges, juries, colleagues or even their spouse should read this article.  Much of the article will not be new to anyone who studies the art of persuasion.  But at a minimum it is an excellent distilling of important persuasion techniques and everyone will learn or rethink a few things. 
   
• Patent Reform is back, or at least Minority Whip Senator Kyl (R-AR) has introduced a new patent reform bill.  It is hard to imagine there is much traction in the midst of a presidential election and all of the economic unrest swirling around Washington.  But you can read more about the bill at Patent Docs and the 271 Patent Blog.

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Here are several posts related to IP litigation that are worth a read:

• Anne Reed at Deliberations has a fascinating post discussing a study about the differences between city and suburban or rural juries -- click here to read it.  The study is focused on criminal cases, but it has value for civil juries as well.  It is no surprise to anyone involved in trials across the country that city jurors act differently than suburban or rural jurors.  But the real message of Reed's post is that you have to be careful to draw overly strong conclusions about one factor (juror's home addresses) from a study of a massive, complex system like a trial.  The outcomes are also dependent upon the sophistication of the court as to the subject matter and type of law of the case, the volume of the court's docket, etc.  And there might be more important ways to classify jurors.  For example, relative wealth and level of education may be more important factors than where they live.  But Reed points out that the real value of the study for lawyers, consultants and litigants is that it makes us think about how juries are influenced and challenges our preconceived notions.  Reed challenges us to Reed the study and use it as a springboard, instead of as an answer.
   
• At his The Prior Art blog, Joe Mullin has an update on Scott Harris and his patent portfolio, after his settlement with his former firm, Fish & Richardson -- click here for the post.  Harris and Memory Control Enterprise recently filed a patent infringement suit in the Northern District involving GPS navigation technology.  I will post about those cases as opinions and orders are issued.
   
• Here is a useful white paper on taking cross-cultural depositions from the All Language Alliance.  Hat tip to Evan Schaeffer at his Illinois Trial Practice Weblog for the link in a post about depositions using interpreters.

 

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Blawg Review #177 is up at Small Business Trends -- click here to read it.  Small Business Trends is a business blog and, so focuses its review on legal angles on business issues.  The Review covers a number of intellectual property issues, including UsefulArt's post about India's first trademark on a sound.  There is also considerable coverage of a hot legal blog topic, the use of Twitter by lawyers and businesses for marketing.

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John Marshall's Summer 2008 edition of its Review of Intellectual Property Law is on bookshelves everywhere, plus it is online (click here for the table of contents of the current edition with links to pdfs of each article).  Some of the highlights in:

• The text of Chief Judge Michel's address to the Federal Circuit Judicial Conference in which he discussed the state of the Circuit and asked Congress to add a fourth law clerk for each appellate judge to speed the Federal Circuit's output;
   
• An article by R. Mark Halligan arguing for the addition of a trade secret misappropriation cause of action to be added to the Economic Espionage Act of 1996; and
   
• Hal Wegner's discussion of the impact of the Supreme Court's patent exhaustion decision in Quanta v. LG; and
   
• Daniel Sullivan's student arguing that an Article I patent tribunal should be created and that patents should know longer be subject to trial by jury.

Whether you agree or disagree with the authors, this edition has some provocative arguments.

 

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Yesterday, LexMonitor featured me as its blogger of the day -- click here for LexMonitor's page on the Blog and me.  That leads to a thank you, an apology and some disclosure.  Thanks to LexMonitor for highlighting the Blog and for all of the work the LexMonitor team does aggregating legal blog content in one place.  Next, I apologize for not posting specifically about LexMonitor when it debuted earlier this year.  In my defense, I did immediately add them to my blog roll.  LexMonitor is a great resource for identifying new legal content to follow.  They take a process that, on your own, is like drinking from a fire hose and make it manageable to find the legal blogs in your areas of interest.  Finally, full disclosure:  LexMonitor was created and is run by the great people at LexBlog who run this site for me and who I routinely credit for the great job they do on this blog and so many others.

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Blawg Review #176 is hosted by Legal Literacy -- click here for the Review -- on the United Nations' International Literacy Day. Literacy is worthy of far more than a single day of focus, and it turns out that the United Nations agrees.  Apparently, we are halfway through the Literacy Decade (running from 2003 until 2012).

Legal Literacy's Review is full of great content, including some interesting IP-related topics.  Thomas Colson at  Securing Innovations (another LexBlog site) has a very interesting post (click here) on a new series of commercials by the PTO and Invent Now, among others, aimed at encouraging 8 - 11 year old boys and girls to invent.  Colson is concerned that the commercials feed gender stereotypes and links to A Girl Named Pants his series of children's books that motivate young girls to overcome gender stereotypes. 

I can see the stereotype concerns to a degree, but the ads that I found were pretty powerful and funny.  Click here for the LA Times article Colson links to containing a video of one add -- I would love to add a suction bike to my bike collection.  And to the extent that there is stereotyping, I think it is far outweighed by the potential good of the program.  Having said that, I am impressed by Colson's books and vision.  When my daughter is old enough, I will be reading to her about the adventures of Pants. 

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Jones Day v. BlockShopper.com, No. 08 C 4572, Order (N.D. Ill. Aug. 18, 2008) (Darrah, J.).*

Judge Darrah entered the parties stipulated temporary restraining order ("TRO").  Plaintiff Jones Day sued defendants, BlockShopper.com and two individuals allegedly associated with the website, for allegedly using plaintiff’s service marks and linking to plaintiff’s website in at least two articles that discuss Chicago real estate transactions of plaintiff’s associates. Plaintiff claimed service mark infringement, Lanham Act false designation of origin, Lanham Act dilution, and state law deceptive trade practices and unfair competition and sought a TRO – click here for the Blog's earlier post on the case.

The Court entered the parties' stipulated TRO, ordering defendants not to:

1. Use reproductions or imitations of plaintiff's service mark;
    
2. Use any content from or link to plaintiff's website; or
    
3. reference plaintiff in its headlines.

Defendants were also ordered to remove any website content already on the site that would violate the TRO if written after its entry. 

As you would expect, other blogs and mainstream media have noticed the case.  At Legal Blog Watch, Robert J. Ambrogi just wrote about the dispute (click here), noting my post and discussing an article by Lynne Marek that will appear in next week's National Law Journal -- click here (subscription required).  According to the NLJ story, plaintiff asked only $10,000 to settle the case, but defendants rejected the offer, explaining:

Bending to the law firm's demands to stop coverage of the firm's lawyers would strangle the company's business model of using public records and publicly available Internet information, he said. Blockshopper, founded by former newspaper industry professionals, considers itself a next generation media outlet entitled to First Amendment protections just like any other news organization, he said.

Ambrogi sums up the issue at the heart of the dispute well:

In this age of electronically enhanced transparency, this whole dust-up reflects a sentiment I encounter time and again: "We like our public records to be public -- just not too public.

*  Click here for the Order.

 

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Blawg Review #175 is up at Jamie Spencer's Austin DWI Lawyer (another LexBlog site) -- click here to read the Review.  Fitting with Ed.'s sense of humor, a DWI lawyer was chosen to host the Labor Day Review, instead of a more traditional pick, like a labor lawyer.  Of course, there are lots of interesting DWI posts, and a few good IP links.  Spencer links to Victoria Pynchon's post at the IP ADR Blog about the arrest of a blogger who posted new Guns N' Roses tracks before the group released its new album -- click here to read it.  In a "teeny tiny" act of civil disobedience, Pynchon posted the entire text of the LA Times story on the arrest.  While I will admit to one or two acts of civil disobedience in my day, today you are just getting a link to the Chicago Tribune's story by Michelle Quinn and Swati Pandey on the arrest and the increasing use of criminal copyright infringement prosecutions -- click here.

September's Carnival of Trust is up at Compensation Force -- click here for the Carnival.  There are no specific legal or IP posts this month, but lots of great stuff on building and maintaining relationships with trust.

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Blawg Review #174 is available at D. Todd Smith's Texas Appellate Law Blog -- click here to read it.  Smith boldly went without a theme, but it is a great Review, even without a theme.  Smith picks up on my coverage of the Seventh Circuit's recent decision affirming the Northern District's holding that the NFL is a single entity for IP licensing purposes, as well as related coverage at Sports Law Blog and Blawgletter.

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Here are several stories worth checking out, but that did not warrant a separate post:

• PA Tracer's monthly patent filings report is out.  The Northern District had nine new cases filed in July.  That is reasonably busy for the deep summer, but nothing compared to the Eastern District of Texas's 25 new patent cases -- click here to read PA Tracer's post.
   
• The St. Louis Post-Dispatch ran a story recently about Judge St. Eve -- click here to read it.*  The story discusses many traits that are obvious to those who have practiced before her.  Judge St. Eve is very punctual and efficient, and she has absolute control of her courtroom, which she maintains with a civility and kindness that are impressive.  The article also speculates, using unnamed colleagues and media as sources, that Judge St. Eve will eventually be on Supreme Court short lists.  Here's hoping she stays in the Northern District a long time before getting called up to One First Street.
   
• Chicago Lawyer Magazine did a nice profile on Chicago IP lawyer Carol Genis of Bell, Boyd & Lloyd.  Click here to read it.  The article largely focuses on how Genis develops strong bonds of trust and friendship with clients.
   
• Duane Valz, Vice President & Associate General Counsel of Yahoo!’s Global Patent Strategy, is discussing approaches for patenting Internet-related ideas in a webinar on Wednesday, September 3 from 1:30 - 3:00 CT -- click here for more information.

*  Hat tip to the WSJ Law Blog for pointing out the story here.

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Last week’s Olympic edition Blawg Review focused on the medals. Building on that, this week I discuss the elements of a world record swim. If you were watching last week, instead of blogging, you saw 20 of them in the Olympic pool; seven by Mr. Phelps.

 

Practice

Nothing is more critical than preparation. A big part of preparation is tightening your stroke and cutting out unnecessary motion. Reese Morrison, at the Law Department Management blog, discusses blunt suggestions for trimming legal bills.

 

Endless hours in the pool alone are not enough, you need a good coach. Business development coach Cordell Parvin provides an excellent three part series at his Law Consulting Blog – one, two, and three – on persistence, an important element of any Olympic training program. In an Olympic caliber display of persistence, Drug & Device Law had an exhaustive post discussing and classifying each medical device preemption case since the landmark Supreme Court decision in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).

 

You also need a support network to help you get through all of the pool time. Bruce Allen, at Marketing Catalyst, teaches us how to avoid the cocktail conversation you cannot escape from at a networking event. At Copyblogger, John Morrow explains that content is no longer king in the blogosphere, you need friends. And he teaches you how to get them. At BlawgIT, Brett Trout – who is a fighter, not a swimmer – has an interesting post about how to work together as a community to thwart webjackings (the hijacking of a website). And Mediation Channel’s Diane Levin discusses the social side of blogging, and reading blogs.

 

Of course, if you do not have time to practice you will never set the record. So, you need a job, or at least some cash. On that note, Harmful Error posts the great news that loan forgiveness programs were expanded this week for legal aid lawyers, state prosecutors and public defenders. 

 

Continue Reading...

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I am hosting Blawg Review -- the 173rd edition -- next Monday.  I talked some smack about writing a great Review, and Victoria Pynchon has set a high bar.  So, please send me your best posts by clicking here for Blawg Review's submission guidelines and  using Blawg Review's submission form.  And come back Monday to read the Review.

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This week's Blawg Review is available -- click here to read it -- at the Ohio Employer's Law Blog written by the lawyers at Kohrman, Jackson & Krantz.  The Blawg Review's Olympic edition awards gold medals in two categories of blog posts:  1) employment law; and 2) non-employment law.  It is worth your time, if you can pull yourself away from Michael Phelps's second run at Mark Spitz' record eight gold medals in a single Olympics.  But after last night's amazing finish in the 4 X 100 M relay, I would not suggest you stay away too long.

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Here are several items that did not necessarily warrant a separate post, but are worth some attention:

• Chicago blogger Evan Brown of Internet Cases recently participated in episode 16 of the This Week in the Law podcast with law blog luminaries Denise Howell (the host), Nicole Black, Marty Schwimmer and Ernie Svenson -- click here for Brown's post and a link to the podcast. Their lively discussion included numerous IP topics including: 
  • DMCA anticircumvention provisions;
  • ediscovery; and
  • the Viacom v. Google discovery issues (the parties ultimately agreed that the compelled user data could be produced anonymously).
    
• Mike Atkins did a great series of post comparing the benefits of state and federal trademark registration -- click here and here for the posts.  These posts are a great primer, if you want to understand the differences between and trade offs for state versus federal registration.
  
• The John Marshall Law School has been included in the PTO's new Law School Clinic Program.  Beginning this fall, second and third year John Marshall students will represent inventors in actual PTO proceedings.  This is a great opportunity for both the students and the inventors.  Click here for John Marshall's press release about the new program.

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For my rookie Blawg Review, I kept my head down, worked hard and hoped to meet the Review's high standards set by the reviewers before me.  Victoria Pynchon at the IP ADR Blog, took a different route.  She guaranteed victory, promising "one of the best [Blawg Review]'s ever."  And she was right.  She used a risque theme and a massive number of links to deliver an excellent review -- click here to read it.  My only complaint, I cannot possibly get through all of her linked posts.

I am hosting the Blawg Review in two weeks, and Pynchon has set the bar high.  Make sure to be here in two weeks to watch me clear it.

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Managing Intellectual Property published its annual list of the fifty most powerful people in the international IP community (hat tip to Patent Docs for pointing it out).  Click here for the list (subscription or two week free trial sign up required).  There were two honorees with Chicago connections:

• Rhonda Steele (#8) -- Steele is both the president of INTA and Asia-Pacific marketing properties manager for Mars.  While Steele does not necessarily work in Chicago or on Chicago-specific IP, Mars makes Fun Size versions of its 3 Musketeers, Snickers and Milky Way candy bars in Chicago.
  
• Jim Malackowski (#34) -- Malackowski is a founder of Chicago-based Ocean Tomo, as well as its president and CEO.  Among other things, Ocean Tomo is well known for its patent auctions (at leas the last several of which have each totalled more than $10M in sales), IP valuation services and damages expert work.

These IP luminaries share the honor with Second Life avatars (#1), the PTO's Director John Dudas (#4), the Federal Circuit's Judge Michel (#9), Harry Potter (#14),and  blogger and Google copyright counsel William Patry, of the Patry Copyright Blog.

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Bill Patry announced that he is ending his blog, the Patry Copyright Blog.  I will miss Patry's insight into the copyright world.  For the last several years I have routinely turned to his blog when I needed a fresh take on or a deeper understanding of a current event in the copyright world.  Patry's posts were always thoughtful, detailed and powerful, sometimes even provocative.  Sadly for me, I will have to turn elsewhere the next time I struggle with a copyright issue.  And I am not alone in my disappointment:

• Fire of Genius
  
• Patently-O
  
• Rob Hyndman

Bill, Thank you for your time and your insight over the last several years and 800 posts.

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Blawg Review # 170 is up (actually it went up yesterday,* a day early) at Simple Justice, a New York blog with a criminal defense focus -- click here for the Review.  This week's theme is the due process and equal protection rights granted by the Fourteenth Amendment.  As the son of a criminal defense attorney, I have a soft spot for the due process clause.  And Simple Justice does not disappoint, providing a varied look at last week's legal blog posts.

Blawg Review returns here in three weeks, after visiting the IP ADR Blog and the Ohio Employer's Law blog over the next two weeks.

*  Who says Blawg Review does not get any link love?  Actually, Ed. does, but I cannot imagine it is true.

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Blawg Review #169 -- click here to read the review -- is available at Whisper, a brand strategy consulting blog.  The review is loosely themed around, no surprise, branding and marketing, with a large variety of blogs and subject matter it is wroth a read.

The Review also links to the July Carnival of Trust at Bossa Blog (click here to read the Carnival), which discussed a Law21 post lamenting the reputation of of lawyers as shifty or untrustworthy, and answering the question, can you trust your lawyer?  As I would, Law21 answers "Yes!":

Lawyers have a choice to make, too. We can reinforce this reputation as skilled and dangerous weapons to be deployed and applied as needed, at a time when trust is becoming intrinsically important to business and consumer relationships; or we can make a real effort to reinvigorate the role of trust in our professional culture, giving it to and expecting it from each other and our clients.

What’s most disheartening about our poor reputation for trust is that lawyers are amazingly trustworthy as individuals, possessing (in my perhaps biased view) more courage and moral fiber than can be found in many other walks of life. And this doesn’t evaporate upon human contact: many lawyers have thriving direct relationships of trust with both colleagues and clients.

The problem is that our professional culture has come to view trust as just too risky — the fear of exploitation and disappointment has had a disproportionate impact on our willingness to trust, and that has damaged the standards to which we hold ourselves and each other. Every lawyer thinks he or she is trustworthy, but for some reason is reluctant to extend that belief to others.

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Here are a couple of new IP entries in the legal blogosphere:

• The Green Patent Blog is written by Eric Lane of Luce Forward in San Diego.  Lane covers, no surprise, environment-related patent issues.  It is a very timely and well written blog.
  
• Trading Secrets* is written by a number of attorneys from Chicago's Seyfarth Shaw (although most of the attorneys reside outside Chicago).  The blog covers trade secrets and non-compete issues generally, areas that are a bit underrepresented in the IP legal blogosphere. 

Welcome to the conversation Green Patent Blog and Trading Secrets.

*  Another blog expertly designed and kept by LexBlog.

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James Sweeney, a prominent member of Chicago's IP bar, passed away last week -- click here for the Sun Time's obituary.  Sweeney graduated from Northwestern Law in 1956, after serving in the U.S. Navy aboard a submarine from 1950-1953.  He practiced law most recently with Barnes & Thornburg.  In 2000, at the request of the State Department, he traveled through Malaysia with his wife speaking about IP counterfeiting and piracy.  Sweeney also organized and directed John Marshall's Center for Intellectual Property Law:

The John Marshall Law School hired Mr. Sweeney in 1998 to run its Center for Intellectual Property Law because of his extensive background and his many contacts, said John E. Corkery, dean of the school. Mr. Sweeney retired in 2003.

"Jim was a big, gregarious fellow and he knew many, many people in the legal profession and particularly in intellectual property," Corkery said. "It was hard to walk down the street with Jim Sweeney and not have him say hello to someone he knew.

                                                                        * * *

"He organized and directed the program and hired the practicing lawyers who would come to the law school and teach for us."

 

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The Northern District had 40 copyright cases filed during the first half of 2008. That is only about one-third of 2007's total of 129 cases -- click here to read about the 2007 case filings. So, while patent and trademark infringement filings remain strong, copyright actions have started slowly in 2008.

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The Chicago Tribune had two interesting legal stories earlier this week:

• The Tribune's Jamie Herzlich wrote a good article explaining the basics of trademarks, including why and how to file them -- click here for the article.  It is a great first resource for anyone looking at trademarks for the first time.
  
• The Tribune's Ann Therese Palmer wrote about and interviewed Pedro DeJesus, Senior Vice President, General Counsel and Secretary of Tampico Beverages, a Chicago-based company that is the leading refrigerated juice drink manufacturer -- click here for the article.  DeJesus, a former associate at DLA predecessor Piper Rudnick, does not appear to have an IP focus.  But his story captured my attention, probably because, like me, he went to law school focused on public interest law, but ended up entering and enjoying commercial legal services.  It is especially worth a read for current and aspiring law students.  I echo Judge Castillo's advice to DeJesus that anyone planning to do public interest law would benefit from some big firm experience.  Big firms provide exposure to many facets of the law, including exciting public interest opportunities. 

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The Northern District had 72 trademark cases filed during the first half of 2008.  That is well on the way to meeting or exceeding 2007's total of 138 cases -- click here to read about the 2007 case filings.  So, it looks like, as with patents, the Northern District continues to have an active trademark infringement docket.  A difficult economy is not slowing the Northern District's IP cases.

Thanks to Mike Atkins at the Seattle Trademark Lawyer for the idea of a mid-year status report.  Expect a similar copyright mid-year report shortly.

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Patent Appeal Tracer has a great post listing the patent filings for June 2008 by district.  Tracer used Pacer and "math" to come up with its list, which shows that the Northern District is fourth in patent filings for the month with 19 of 255 filings (about 85 of the total).  Those 19 filings give the Northern District 87 patent cases in the first half of 2008, well on the way to another busy year.  The top three were not surprising:

1. Eastern District of Texas -- 32 filings
   
2. District of Delaware -- 24 filings
   
3. Central District of California -- 20 filings

Patent Appeal Tracer also mentions EZ4Media's two Northern District cases against thirteen defendants as cases to watch.  The defendants in those cases are alleged to infringe patents to wireless streaming of digital media.

[UPDATE:] More on the year's trademark and copyright filings is coming next week, prompted by Mike Graham's Seattle Trademark Lawyer post about this year's Western District of Washington trademark litigation statistics -- click here to read it.  Thanks for the mention Mike.

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