I am a little backed up posting Blawg Reviews, but that is no reflection on the quality of the reviews. Check out last week's Blawg Review #158 hosted by the Mommy Blawg. And this week's Blawg Review #159 hosted by the LaBovick law firm's Whistleblower Law Blog.
On Monday, the Blog will host the May Carnival of Trust. The Carnival of Trust is a monthly compendium of blog postings related to trust in business, trust in selling, trust in society at large. It is kept interesting by the vibrant and varied commentary of each month's host, and by the ten post limit for each month. Click here to submit your trust-related posts for the Carnival.
Click here to check out the April Carnival at the True Colors Consulting Blog, and click here for the March edition at Duncan Bucknell's IP Thinktank Blog.
Read more about the Carnival of Trust here at Charles Green's Trust Matters Blog.
And while I am discussing blog carnivals, do not miss this week's Blawg Review #157 hosted by Thoughts from a Management Lawyer.
I have several smaller IP-related items today, none of which warranted a single post:
Blawg Review #155 is up at the California Blog of Appeal. It focuses on (bad) poetry in honor of National Poetry Month and takes a look at stress in the legal profession.
Also, the excellent Las Vegas Trademark Attorney has a detailed post -- click here for the post -- about the Roscoe's v. Rosscoe's Chicago chicken and waffle restaurant trademark suit that I posted about last week -- click here for the post.
Blawg Review #154 is up at the Health Blawg, which covers health care law. The Review's theme this week is World Health Day, but it also points to an interesting story related to anonymous blog comments. SCOTUS Blog eliminated its comments feature -- click here for the SCOTUS post explaining their reasoning. This is especially interesting because in October 2006, SCOTUS began requiring that commenters provide their full names before posting. They hoped that this would stop "silly sniping" by anonymous commenters. Unfortunately, after eighteen months, the sniping had not stopped. So, they closed comments completely, although you can still email them comments and they will consider adding the best directly to the posts.
Unfortunately, the SCOTUS experiment suggests that civility may not be enforceable on the internet. Perhaps the social constructs that maintain civility in real world conversations -- knowing that you will have to work with the target of your words the next day, watching your target's reaction in real time, or bystanders acting as civility referees -- cannot be duplicated online.
Below is Crime & Consequences' take on the SCOTUS comments decision:
I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.
So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.
Below is Crime & Consequences' take on the SCOTUS comments decision:
I, for one, enjoy exchanging ideas with people who can remain civil while disagreeing. Regrettably, commenting on blogs too often involves opening oneself to ad hominem attacks and choosing between letting a public attack go unanswered or wasting time responding. The choices for a blog that has this problem are to (1) let it go uncorrected; (2) police the comments, an expenditure of time that few sponsors wish to make; or (3) turn off the comments, as SCOTUSblog has now done. If the sponsor chooses to let the problem go uncorrected, what typically happens is that thoughtful people stop or greatly reduce commenting, and the insult slingers come to dominate the comments. Choices (1) and (3) lead to the same result, then, that a useful medium is eliminated either de facto or de jure.
So the decline in civility of our society claims another victim. The SCOTUSblog experiment shows that uncivil behavior is reduced when people have to show themselves in public, but it is not eliminated. I suppose the result was to be expected, but it is sad nonetheless.
Blawg Review #153 or rather Blarrgh Review, it is written in pirate-speak, is up at George Wallace's Declarations & Exclusions. Wallace also provided a supplemental April Fool's Day Appendix to Blawg Review #153 at his non-legal blog A Fool in the Forest. The Appendix focuses on non-legal posts from law blogs and off-beat legal posts. Enjoy the Review and happy April Fool's Day. I hope your assistant is not in cahoots with The Lawyer's Right Hand.
Blawg Review #152 can be found here. TechnoLawyer hosts this edition, which is focused on law practice management and legal technology blogs. It is a good read.
Happy St. Patrick's Day! In addition to a few verses of Danny Boy and some homemade shepard's pie, I am celebrating with Blawg Review #151. The St. Patrick's Day edition comes from Dublin's Lex Ferenda blog. Check out the Review and the Lex Ferenda blog, both are excellent.
[Update]: Blawg Review #151 has been updated to link to my post this morning about anonymous blogging and commenting -- click here for the post. A tip o the hat to Lex Ferenda for the late inclusion.
There has been a lot of coverage of Troll Tracker's recently disclosed identity.* Troll Tracker ended his anonymity a few weeks ago and now faces a libel law suit along with his employer, Cisco, based upon statements he made about a case involving Cisco -- this is one of the many reasons I do not write about cases that my firm or I are involved in.
I did not intend to weigh in on this story because there was not much to add (see below for links to some of the best coverage). But then I read Joe Hosteny's March 2008 IP Today article – click here for the article -- about anonymous blogging and anonymous commenting. Hosteny is a partner in the Niro Scavone firm, a firm that was often a focus of Troll Tracker's posts. I have not always seen eye to eye with Hosteny in the courtroom, but I found his article both very good and thought provoking.
Hosteny raises real concerns about how the anger surrounding the non-practicing entity dispute has gotten out of hand. Death threats over patent litigation (even assuming they are idle threats) cannot be tolerated. These threats make me question whether the patent litigation bar is maintaining the levels of civility and sanity required by our professional standards.
Violent threats and, more broadly, incivility have no more place in the realm of legal blogs than in the legal system. But it does not follow that anonymous blogging and commenting are inherently bad – the issue is more complex than that. Lots of electrons have been spilled over the pros and cons of anonymous blogging – blog guru Kevin O'Keefe is no fan of anonymous blogging, whereas the anonymous editor of Blawg Review provides a great service to both the legal and the blogging communities with the weekly Blawg Review, despite his anonymity.
Anonymous blogging is not the problem. The problem is with anonymous bloggers who believe that anonymity allows them to comment on cases involving themselves or their clients , or to post threatening comments (Troll Tracker, of course, never posted any threats that I am aware of). If Troll Tracker had not blogged about his client's case and if he had stuck to the verifiable facts, he likely would not have gotten sued.
Similarly, anonymous commenting is not the problem if legal bloggers, including Troll Tracker, monitored and approved comments before** they went live, the death threats against Niro never would have been published. I moderate the comments to this Blog and, as a result, angry rants against a judge or an attorney (none have been violent) do not make it on the Blog. And that anonymity may have provided the writer with false courage. But I prevent that, and so can any blogger, by acting as a gatekeeper.
Hosteny argued that anonymity is cowardly and not in the tradition of the First Amendment because the Declaration of Independence was signed by the Continental Congress. But he leaves out that the Federalist Papers were signed with aliases. Anonymity can be useful in that it can provide courage to voice ideas that otherwise might not be interjected into public discourse. For that reason, I think there is a place for anonymous blogging and commenting, as long as anonymous bloggers do not use anonymity as an excuse to avoid the rules of our profession and of common sense.
As promised above, for more coverage of Troll Tracker and the defamation suit, see:
IP Law360 (subscription required, but a very thorough history)
Patently O -- discussing a related federal suit filed in the District of Arkansas, including a link to the complaint.
Prior Art Blog -- detailing the history of the suit and here and here on other aspects of the story as well.
[Update]: Blawg Review #151 at Lex Ferenda was just updated discussing this post.
* There are no Troll Tracker links because the site is currently either down or subscriber only.
** Troll Tracker did remove violent and offensive comments, but only after they were posted and he became aware of them.
Blawg Review #150 is up at Trust Matters by Charlie Green, co-author of The Trusted Advisor and creator of the Carnival of Trust, which I will be hosting on the first Monday of May. This week's review links to the Blog's follow-up post about whether photographs of copyrighted Thomas & Friends toy trains are derivative works -- click here for the post.
Here are a few IP news items from the weekend and this morning that you will find interesting:
Several unrelated legal stories that are worth a read:
* Hat tip to Michael Atkins at the Seattle Trademark Blog for pointing out the article during his Trademark Dilution Weekend.
The Invent Blog hosts Blawg Review #146 today on National Inventor's Day. He also points out that the most prolific American inventor, or at least patentee, is not Thomas Edison but Illinois's very own Donald Weder. Mr. Weder had been granted over 1,300 patents by early November 2005, according to this USA Today story. Most of his inventions involve flowers or items for use in flower shops.
Blawg Review #144 is now available at Cyberlaw Central, an excellent blog written by Chicagoan Kevin Thompson. Thompson's Lord of the Rings-themed review highlights, among other excellent posts, my review of the Northern District's 2007 trademark cases. For those coming from Cyberlaw Central, click here for my review of the Northern District's 2007 patent cases and click here for my review of the Northern District's 2007 copyright cases.
Blawg Review #142 is now available at the Build A Solo Practice Blog. The review is done as a letter to new lawyers providing some very insightful advice for starting and shaping a legal career. It also links to my post from Friday about following the Federal Rules of Civil Procedure -- click here for that post.
I enjoyed my first opportunity to host Blawg Review (a weekly review of the best of the legal blog world hosted by a different blog each week) -- click here for my injunction-themed review. Having hosted a 2007 review gives me the opportunity to nominate my favorite reviews for the Blawg Review of the year award. Here they are, in chronological order:
Finally, this week's Blawg Review #141 is available across the pond at Charon QC.
Last week the intellectual property world obsessed over injunctions – specifically, a preliminary injunction hearing in the Eastern District of Virginia resulting in an injunction against the U.S. Patent & Trademark Office’s (“PTO”) new continuation rules. There was a lot of analysis about the injunction, including live blogging by Patent Practice Center Patent Blog and a lot of post-injunction analysis by, among others: 271 Patent Blog; FileWrapper; Patent Baristas; Patent Docs (and here); Patent Prospector; PHOSITA; Patently-O; WSJ Law Blog; and Washington State Patent Law Blog. For those of you who have no idea what a continuation is or just do not care about the particulars of the rules, I promise that I am done with patent continuations for this post. Honestly, I find the rules rather tedious myself. I prefer to focus on litigating patents, rather than the PTO’s prosecution rules. So, today we talk about injunctions:
According to TechCrunch, Patent Monkey received a permanent injunction when it was sold to the Internet Real Estate Group. But Patent Monkey’s patent search technology will see its injunction lifted when it is used on www.patents.com. Hopefully, for those like me who enjoyed it, Patent Monkey’s Infinite Monkey Theorem Blog will also see its injunction lifted.
Virtually Blind has an interesting report on Second Life’s* new Patent & Trademark Office, the SLPTO. No word on whether the SLPTO and the Second Life legal system generally will allow for any permanent injunctions. Right now it appears that the SLPTO will be heavily skewed toward copyright and trademark, which makes sense in a virtual world. And before we learn whether the SLPTO has any enforcement mechanisms, Blawg IT is offering to represent virtual clients before the SLPTO. I would get a retainer up front Brett – virtual clients can be difficult to track down when the bills are due.
The Patry Copyright Blog shows why Second Life injunctions may be necessary. Six Second Life players have sued a Queens man in the Eastern District of New York for trademark and copyright infringement based upon sales of goods in Second Life. I wonder if the trademarks and copyrights were registered with the SLPTO or the US PTO/Copyright Office. And does the E.D.N.Y. have authority to issue cyber-injunctions?
Promote the Progress provides an interesting piece on the long-term effects of last week’s injunction against the PTO on shaping patent reform.
SportsBiz explains that plaintiffs who were bilked out of millions in attorneys’ fees by their now-jailed lawyers were not irreparably harmed. A Kentucky court awarded them a 20% ownership interest in Curlin, the prize race horse and Breeder’s Cup Classic winner partially owned by the jailed lawyers.
Adams Drafting issues its own injunction against using virgules. Using what? The virgule, or the forward slash. He explains that it is frequently used to mean: 1) “per” – 50 miles/hour; 2) “or” – and/or; and 3) “and” – all parents/subsidiaries/affiliates are bound by the obligations. The problem is that the various uses create ambiguity. Adams acknowledges that he cannot find any litigation specifically about the virgule. But the best solution is to remove the virgule from your writing before you become embroiled in the first litigation over one. And when it comes to rules of writing and grammar, the best solution is to listen to Adams.
What if you do not want an injunction or just want a faster, cheaper resolution? The IP ADR blog is talking about last week’s big settlement between Vonage and Verizon. They suggest that you consider using contingent agreements to control for changing future conditions and charitable contributions. They also point out that creativity and out-of-the-box thinking are important elements for reaching settlements.
Another way to avoid an injunction is to understand how best to argue against the opposing party and their counsel. The Center for Internet & Society discusses how men and women in the United States and in other cultures communicate and suggests that understanding the nuances of how different people communicate around the globe could advance legal discourse.
Lowering the Bar reports on a Michigan man sentenced to sixty days in jail for a home invasion that ended in him throwing two large pickles at residents of the home. No word on whether he will be enjoined from pickle ownership. Okay, that is a weak tie-in, but who can resist a pickle invasion story.
Deliberations discusses one of the basic truths of trial law – you must connect with your jury about basic truths of your case. That is equally true when seeking an injunction – if the judge senses something is not right about your argument, you will not get your injunction.
The writers’ strike that is expected this week is not an injunction, but it will mean an end to new scripted television and movies. Concurring Opinions has an interesting post about a brewing legal dispute between the studios and the writers’ union, the Writers Guild of America (“WGA”). The WGA is requiring that members provide information on all unproduced projects and an update on the status of those projects, as per the labor agreement between the WGA and the studios. But the studios, based upon their individual agreements with writers, are warning writers that the studios own the scripts and the writers are barred by contract from giving the WGA any information about the projects. These conflicting contracts place the writers in quite a pickle (I could not resist), and it poses an interesting legal question as to which contract controls.
And I end with a post that is actually about an injunction. The Maryland IP Law Blog (another LexBlog creation) posted about a District of Delaware court that upheld a jury verdict of patent infringement and plans to enter a permanent injunction against Lonza, Ltd., Nutrinova Inc. and Nutrinova Nutrition Specialties & Food Ingredients GmbH prohibiting the U.S. sale and use of a fatty acid product currently marketed under the brand name Lonza DHA for use in functional foods and dietary supplements.
Thanks for reading. And for the Blog’s regular readers, I will be back to my usual Northern District of Illinois focus tomorrow.
* Second Life is an internet-based virtual world where “residents” interact through avatars. For example, the Seventh Circuit’s Judge Posner appeared in Second Life with an avatar closely resembling him to answer questions from, among others, a DC IP lawyer using an avatar of a humanized raccoon. Check out the New World Notes blog for a transcript and some screenshots.
I am hosting the 133rd weekly Blawg Review on Monday. For those of you new to the Blawg Review, it is a round up of the best law blog* posts of the last week based upon submissions and the host's (that's me) own additions. Feel free to nominate your own posts -- click here for submission guidlines and a form for submitting your posts. And check back Monday morning for Blawg Review #133.
* I generally use the term "law blog." The Blawg Review goes with "blawg" to mean the same thing. There has been considerable debate on which term is most appropriate -- click here, here or here if you really want to know more about this debate from Kevin O'Keefe at LexBlog.
Blawg Review #123 was published today by the Texas Appellate Law Blog. For those who do not know, Blawg Review is a review of each week's law-related blog posts hosted by a different legal blog each week. This week's review is written in the style of an appellate opinion.* The review highlights yesterday's Blog post reporting that Roger Ebert has withdrawn Disney's right to use Ebert's thumbs up/thumbs down trademark until negotiations regarding Ebert's return to his movie review program are resolved. I will be hosting the Blawg Review on November 5th.
* The Blawg Review opinion did not reach the issue of whether "blawg" or "law blog" is the correct term for legal blogs. This is, perhaps surprisingly, a hotly contested issue (and here and here). I side with Kevin O'Keefe at LexBlog. Legal blog or law blog is sufficiently descriptive and the least confusing title. "Blawg" is too cute and confuses people.
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