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

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.

• Email This
• Print
• Trackbacks
• Share Link

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

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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).

• Email This
• Print
• Trackbacks
• Share Link

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).

As with any major appellate decision, we will need eighteen to twenty four months of district court and Federal Circuit decisions to flesh out and fully understand Bilski's implications.  While we argue those cases and await the decisions, there will be plenty of law review and blog analysis.  Here are some of the first (I will update with additional posts as they come):**

• 271 Patent Blog (glad to see Peter Zura back in the blogosphere);
   
• IP ADR Blog;
  
  
• Likelihood of Confusion;
  
  
• Patent Baristas;
   
• Patently-O (with Crouch's usual, in-depth analysis);
   
• The University of Chicago Law Faculty Blog (Randy Picker has an exceptionally detailed take on the opinion); and
   
• WSJ Law Blog (saying experts are torn as to whether Bilski will make it to the Supreme Court).

*  Click here for the opinion.

**  I have updated the list of Bilski blog posts with some new ones.

• Email This
• Print
• Trackbacks
• Share Link

Nike, Inc. v. Wal-Mart Stores, Inc., No. 08 C 5840 (N.D. Ill.) (Hibbler, J.).

As I have said before, I generally do not discuss complaints, but Nike's design patent suit against Wal-Mart last week has drawn significant blog coverage  -- click here for the complaint.  And most of that coverage has missed the most interesting element of the complaint, from a legal procedure perspective (and yes, legal procedure is interesting, at least to me):  Nike's detailed pleadings.  Instead of simply identifying its design patents (related to its Nike Shox product line) and Wal-Mart's allegedly infringing shoes, Nike put detailed design patent claim charts in its complaint showing an accused product from the same angle as each figure in the design patent.  Here is a portion of one of the charts:

Of course, claim charts for design patents are less detailed and time-intensive to create than utility patent charts.  But claim charts in the body of a complaint are relatively rare for any type of patent case.  This may suggest a recognition that the Supreme Court's Twombly antitrust decision which required pleadings to meet a new "plausibility" standard coud be applied in patent cases -- click here for more coverage of Twombly-related issues in the Blog's archives.  Of course, I just finished writing an article for John Marshall's Review of Intellectual Property Law about how courts are dealing with the Twombly standards in patent cases, so I may just be seeing Twombly everywhere.I expect my article to be published next month, and I do not want to scoop it by describing my finding here.  I can say, however, that my research suggests that Twombly is being applied (nationwide, not necessarily in the Northern District) in some interesting and uneven ways.  More on that in a few weeks, after the article publishes.

For more coverage of this case, check out:

• IP Watchdog (focused on the Egyptian Goddess case);
   
• Patently-O (discussing damages and marking issues); and
   
• WSJ Law Blog.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks
• Share Link

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. 

The Suit

The clothes make the man (or the woman). This year the go-to duds were Speedo’s LZR suits. Patent Librarian Michael White tells us that, no surprise, Speedo patented the LZR. IPKat expands on swimming patents, providing a broader view of Olympics-related patents.

Genes

As a guy who swam for a lot of years and practiced hard throughout, I can tell you not everyone has what it takes to set world records. The closest I came was getting beat by an Olympian and world record holder. Of course, you might be less impressed by my loss if you knew that at the time his Olympic medals were four or five decades old, and I was 19. At Idealawg, Stephanie West Allen discusses the traits that make entrepreneurs entrepreneurial.

                                                                     Mental Focus

One of the big stories on Phelps this week was how he thinks of nothing but not losing during a race. At Litigation & Trial, Maxwell Kennerly tells us that you have to know when you are sweating the details more than your client would want by over emphasizing proof-reading. Of course, even Kennerly agrees that some details matter. 

                                                                  Knowing the Rules 

You have to know the rules. Turn wrong or break the rules for your stroke and beating a record by ten seconds will not matter. At the Legal Juice, John Mesirow reports that kids at the Lake County Florida library are allowed to rent R-rated movies because they believe it is an unconstitutional delegation of authority for the Motion Picture Association of America’s guidelines for determining obscenity. I am sure kids from all over that area are flocking to the Lake County library because the rules are on their side, at least for now.

Filewrapper reports on a Federal Circuit decision holding that copyright infringement, and not just breach of contract, when the terms of an open source license governing the copyrighted material are breached. For more on this major decision in the IP world, check out: BLT; Law Pundit; and Patently-O.

Seattle Trademark Lawyer Mike Graham shows the consequences of not following the rules using two Western District of Washington opinions.

Ethan Lieb, guest blogging at Freakonomics, argues that we need to change the rules requiring unanimous juries. And the WSJ Law Blog discusses a judge and a juror who clashed over jury nullification.

The Start

A bad start is hard to recover from, especially when you are chasing the fastest time ever. Evan Schaeffer shows how to open well at trial at the Illinois Trial Practice Weblog, and he links to Trial Theatre’s opening statement quiz.

Turns

Coming off the wall in a turn is the fastest a swimmer goes during a race. So, you need good turns. IntLawGrrls discuss how to turn around the conflict between Georgia and Russia (sorry the turns section was tough).

Legal Literacy discusses Whole Foods’ turned around (or recalled) beef and looks behind the scenes at how it happened and Whole Foods’ impressively quick response.

The Finish

Do you do an extra stroke or do you glide in hard? Always a tough question, but the .01 seconds the decision costs you can mean the race and the record.

At his E.D. Texas Weblog, Michael Smith reports that while the E.D. Texas started out as a rocket docket, particularly for patents, it has now slowed down and let many other districts catch it with a time to trial of 24 – 30 months.

The Law and Magic Blog reminds us that we cannot always win, and that trying to rig the system to guarantee wins – he is talking about the stock market, but it holds true for the pool – is dangerous work.

At the IP ADR Blog, Victoria Pynchon praises several Perkins Coie attorneys who went the distance for their pro bono clients at Gitmo and earned the clients’ respect for providing them an able defense.

** Images provided via a Creative Commons license by A. Dawson or Andre from Flicker. **

Next week's Blawg Review will be at fellow LexBlog site, the Texas Appellate Law Blog.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

• Email This
• Print
• Trackbacks (7)
• Share Link

Viacom wants records from a YouTube database that records each time a video is watched and pairs that with two kinds of information about people who viewed it: log-in names (for YouTube users that have accounts), and IP addresses (for YouTube users without accounts).

For those concerned about the production, there is nothing to be worried about.  Virtually every federal case involving sensitive information is governed by a protective order preventing use or disclosure of the information outside of the litigation.  And in virtually all of those cases the parties honor the protective order and the information is not disclosed or used besides in the litigation.

[UPDATE:]  Randy Picker at the University of Chicago Faculty Law Blog has an interesting post questioning how the information could be kept or produced by Google differently to avoid disclosing identities along with the viewing information, and whether the information is covered by the Video Privacy Protection Act of 1988 (enacted after Judge Bork's video rental records were obtained during Senate confirmation hearings):

So Viacom has a legitimate interest in seeing YouTube’s viewing records. But of course viewers have a privacy interest in those records as well. Exactly how many views have I contributed to The Evolution of Dance, the, I gather, most-viewed video on YouTube (currently at 91,619,702 views)? (I have watched only because I teach copyright, not because it is quite funny.)

This isn’t abstract or speculative. Indeed, after the release of some information regarding then-Judge Bork’s viewing habits came out in his Supreme Court confirmation hearings, Congress passed the Video Privacy Protection Act of 1988, codified at 18 USC 2710. (See the background page on this provided by the Electronic Privacy Information Center.)

I am unaware of any decisions assessing whether an online video provider like YouTube is covered by the VPPA, but it is written in sufficiently media-neutral terms that it appears that YouTube would be covered. If so, that triggers a number of obligations. The VPPA requires the destruction of records containing personally identifiable information “as soon as practicable, but no later than one year from the date the information is no longer necessary for the purpose for which it was collected.” Personally identifiable information is, unsurprisingly, a defined term and “includes information which identifies a person is having requested or obtain specific video materials or services from a videotape service provider.”

• Email This
• Print
• Trackbacks (1)
• Share Link

The Supreme Court concluded its latest review of the patent laws Monday when Justice Thomas delivered the Court's succinct, unanimous decision in Quanta v. LG.  Client obligations this week prevent me from providing a detailed analysis today.  But, no surprise, there is plenty of commentary out there already.  For more about decision, check out:

• 271 Patent Blog

• Agricultural Law

• FileWrapper

• IP Thinktank

• Patent Docs
  

• Patently-O

• WSJ Law Blog

• Email This
• Print
• Trackbacks
• Share Link

Tomorrow I will be back to case analysis, but there is some Northern District news and some excellent IP and litigation blog posts worth reading, here they are:

• Ninth Annual Pro Bono and Public Interest Awards -- 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. Send nominations by March 28 to:

Amy Rettberg, Executive Law Clerk
Email: amy_rettberg@ilnd.uscourts.gov
Chambers of the Chief Judge James F. Holderman
219 South Dearborn Street, Suite 2548
Chicago, Illinois 60604

• Patent Reform is Moving Forward -- The Senate is preparing to vote on the Patent Reform Act after its spring recess (yes, it is spring already in DC).  Here is some additional coverage of the Act's status:

271 Patent Blog -- looking at the latest amendments to the Act.

Maryland Intellectual Property Blog -- looking at the latest amendments and questioning whether proponents have the sixty votes necessary for cloture, thereby avoiding a filibuster.

Patent Docs -- taking sides, but asking you to call your Senators regardless of which side you take.

• Check out the newest entry to Chicago's law blog scene, the Lean & Mean Litigation Blog.  It is not IP-focused, but it is an interesting read for any commercial litigator or litigant.
  
• William Patry at Patry on Copyright has an interesting post about the difficulties of serving corporate entities based upon a District of the District of Columbia case involving a pro se plaintiff.  The best advice, of course, is to hire counsel because if you do not get the party served properly, you have no case.
  
• The Seventh Circuit affirmed Judge St. Eve's ground breaking opinion in the CLC v. Craigslist case.  The Seventh Circuit held that an ISP is exempt from cases based upon user content when the case attempts to treat the ISP as a publisher of the content.  This is considerably narrower than most of the other circuits, which have held that Section 230 exempts ISPs from essentially all suits based upon user content.  For more coverage, check out the WSJ Law Blog (which erroneously elevates Judge St. Eve to the Seventh Circuit), Internet Cases, and the Technology & Marketing Law Blog (very detailed analysis of Judge Easterbrook's opinion).
  

• Email This
• Print
• Trackbacks (1)
• Share Link

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:

E.D. Texas Blog

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.

WSJ Law Blog

[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.

• Email This
• Print
• Trackbacks (1)
• Share Link

New Attorney General Michael Mukasey has nominated Northern District Judge Mark Filip to be his Deputy Attorney General (the #2 position at the Department of Justice), replacing acting Deputy Attorney General Craig Morford.  Judge Filip clerked for Justice Scalia and served as a Northern District Assistant United States Attorney for five years, before briefly entering private practice and then taking the bench.  Here is what the Chicago Tribune (via the Associated Press) had to say about Judge Filip's sterling reputation as a judge:

Filip was nominated for the federal bench in November 2003, and he is widely viewed as a smart and down-to-earth jurist. He was ranked first among federal judges in terms of integrity and professionalism in a 2006 poll of Chicago-area attorneys.

Congratulations Judge Filip.  You will be missed in the Northern District.

I will keep you updated on the confirmation process and the efforts to fill the vacancy that Judge Filip's confirmation will create.

*  A hat tip to the WSJ Law Blog for the fast post regarding Judge Filip's nomination.

• Email This
• Print
• Trackbacks
• Share Link

As part of a Federal Courts pilot project, free online Pacer* access and printing has been made available to the general public at sixteen libraries, including the Seventh Circuit's William J. Campbell Library on the 17th floor of the Dirksen Building.  So, you can avoid the $.08 per page charges online with a trip to the courthouse.

A hat tip to the WSJ Law Blog for alerting me to the free Pacer access.

*  Pacer provides access to the dockets from each case in the federal court system, including links to pdf versions of all publicly available documents.

• Email This
• Print
• Trackbacks
• Share Link

There is a debate brewing in the patent litigation community over the correct scope of a state institution's waiver of 11th Amendment immunity when that institution asserts its patents. In Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), the Supreme Court held that state institutions were immune from patent infringement suits. Of course, if a state institution asserts a patent claim against a party, immunity is generally waived as to that party for counterclaims. But the Federal Circuit recently held in BPMC v. California Dept. of Health (Fed. Cir. 2007), that when the California Department of Health (“Cal. DoH”) intervened as a plaintiff in a patent suit (which is considered a waiver of immunity), it is only a waiver as to that suit. So, when the original suit was dismissed because of improper venue, the waiver was rescinded. As a result, the defendant in the first case, BPMC, could not bring a declaratory judgment suit that mirrored the original suit because of the Cal. DoH’s 11th Amendment immunity. 

The Federal Circuit’s decision has ignited substantial controversy (click here for the WSJ Law Blog’s article on the subject and click here for IP Biz’s responsive blog post) and some are predicting that this will be the next patent case that the Supreme Court takes on cert. It is an interesting issue, but not one that we see often in the Northern District, which caused me to investigate whether Chicago-area colleges are prolific patentees. None makes the top ten, like my alma mater the University of Michigan – Go Blue! But there is some substantial patenting going on at Chicago-area universities. The following chart show the number of patents assigned to the identified universities or their related entities between 1969 and 2005:

As you can see from the chart, this issue has significant consequences for Chicago-area schools. I will keep you posted as the case develops.

• Email This
• Print
• Trackbacks
• Share Link

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.

• Email This
• Print
• Trackbacks (7)
• Share Link

Yesterday, I blogged briefly about the Eastern District of Virginia's injunction preventing the PTO's new continuation rules from taking effect today, November 1st.  But the Court's order was not available yet.  The order has been issued -- click here for a copy -- and it is very interesting.  The Court held that plaintiff GSK had shown a likelihood of success on the merits regarding several issues:

• That limiting the number of continuations a party can file violates 35 U.S.C. Section 120, which states that later filed applications have the same effect as their parent applications.
  
• That the new rules are impermissably retroactive because the limits on numbers of claims and continuations will change the terms of the bargain struck between inventors currently prosecuting their applications and the PTO when those inventors filed their applications, prior to the new rules going into effect.
  
• That the requirements for Examination Support Documents ("ESD") are impermissably vague because they do not sufficiently define the paramters of the search required.

The Court also held that GSK would be irreparably harmed by implementation of the rules because GSK has about 2,000 pending applications and GSK's rights in each of those applications would be materially altered by the new rules. 

[Updated with more links after the jump.]

The balance of hardships weighed in GSK's favor.  The PTO's losses were sunk costs -- updating computer systems and training staff.  But if the PTO wins the suit and later implements the continuation rules, the new computer systems and the employee training will still be valuable.  On the other hand, the entry of the continuations rules will materially limit GSK's rights in its 2,000 pending patent applications.

Finally, the public interest is in maintaining the status quo, rather than allowing the implementation of a new set of rules which could be reversed by the Court in a matter of months.

For more on the preliminary injunction and thoughts about whether the PTO will file an emergency appeal with the Federal Circuit, check out:

• Patently-O
  
• FileWrapper
  
• 271 Patent Blog
  
• WSJ Law Blog
  
• Patent Practice Center Patent Blog
  
• Patent Baristas
  
• Patent Docs and here
  
• Patent Prospector
  
• PHOSITA
  
• Washington State Patent Law Blog

I will continue to update this post with coverage of the injunction and any appeals throughout the day.

• Email This
• Print
• Trackbacks
• Share Link

Usually I post a holiday-related patent on major holidays (which Halloween is in my house).  But in light of today's Eastern District of Virginia preliminary injunction hearing regarding whether to allow the PTO's new continuation rules to take effect tomorrow, November 1, as planned, I thought a post on the continuation rules was more appropriate.  The patent world, and more particularly the patent prosecution world, has been busy analyzing and preparing for the new continuation rules for several months.  For analysis of the new rules check out the Maryland Intellectual Property Law Blog (click here and here) and the 271 Patent Blog (click here).

While most were just probing the rules for loopholes or preparing to comply with them, two also filed suits in the Eastern District of Virginia seeking to enjoin enactment of the new rules -- Triantafyllos Tafas v. Dudas, No. 07 C 846 (E.D. Va.) and SmithKline Beecham Corp./GSK v. Dudas, No 07 C 1008.  Click here for Patent Docs' excellent coverage of the SmithKline/GSK suit.

The two suits were consolidated and a preliminary injunction hearing has been set for today -- click here and here to download the briefs at Patently-O.  Numerous entities have taken sides, filing amicus briefs -- click here for a list of the briefs and links to some of them at the PLI Patent Practice Center Blog.  And for those of you who cannot wait to read the result here shortly after it comes out and who are not busy with legal work or preparing for tonight's trick or treating, click here for the PLI Patent Practice Center Blog's live blogging coverage of the PI hearing.

Update:  Click here for more coverage of the Eastern District of VIrginia cases by the WSJ Law Blog and click here for even more briefing from Patently-O.

Happy Halloween.

• Email This
• Print
• Trackbacks
• Share Link

Wednesday, the Senate held its first hearings regarding the Patent Reform Act.  Both the main stream media and the legal blogs are busy handicapping the battle over the legislation and the Act's chances of success.  Here are some of the highlights:

The WSJ Law Blog handicaps the big players in Patent Reform's Battle Royale

The WSJ print edition featured the Senate hearings in a page-one story (subscription required).

FileWrapper provides a nice summary of each witness's positions.

The New York Times also ran a Business section story.

Patent Prospector takes a very strong position: 

The thankful result of today's Senate hearing is watching the Patent Reform Act of 2007 appear the statutory tub of lard that it is.

• Email This
• Print
• Trackbacks
• Share Link

The Wall Street Journal print edition had an interesting article about a new trend in defending lawsuits that focused on an IP dispute -- A Growing Dispute:  Fertilizer Start-Up Uses Web as Defense (subscription required).  The article discusses TerraCycle Inc.'s use of a website (www.suedbyscotts.com) to bolster its defense of a lawsuit Scotts Miracle-Gro Co. filed against TerraCycle alleging trade dress infringement and false advertising.*  According to the article, TerraCycle has not raised much money from its online solicitation for defense fund donations.  But during the first four weeks of its online defense, TerraCycle's sales jumped 122%, as opposed to 31% during the same period last year.  TerraCycle also saw a corresponding spike in visits to its primary website.  The WSJ Law Blog picked up on the story and developed it further, identifying several other defendants that have used websites as an aspect of their defense strategies, including Vonage's site (www.freetocompete.com) developed in connection with its prominent patent dispute.

It appears that defending cases on the internet is a growing trend.  I doubt it will benefit defendants within the confines of the courtroom or the legal proceedings generally.  Perhaps bringing details of the suit into the public eye will help identify additional prior art or apply pressure from interest groups like consumers or shareholders to get plaintiffs to change tactics.  But it seems to me that the biggest benefit of these sites may commercial, they make news and drive additional traffic to the defendant's primary site.

* You can read more about the Scotts Miracle-Gro v. TerraCycle dispute at the Seattle Trademark Lawyer.

• Email This
• Print
• Trackbacks
• Share Link

Funny Cide Ventures, LLC v. Miami Herald Publishing Co., No. 4D06-2347, Slip Op. (Fla. 4th Dist. May 16, 2007).

Funny Cide Ventures is not a Northern District opinion, nor is it about intellectual property, but it is worth reading.  In a two-page per curiam opinion, the appellate panel dismissed Funny Cide Venture's ("FCV") claims of injurious falsehood against defendants the Miami Herald and Knight-Ridder.  FCV's horse Funny Cide won the Kentucky Derby in 2003.  After the race, the Miami Herald falsely reported that Funny Cide's jockey admitted carrying something during the race and implied that the jockey had cheated by carrying an illegal, battery-operated device perhaps to shock Funny Cide.  Funny Cide and his jockey went on to win the Preakness Stakes with a substantial lead over the field, completing two-thirds of the Triple Crown.  But they lost the final race at Belmont and, with it, the Triple Crown.  FCV filed suit against defendants claiming that the Miami Herald's erroneous story caused the jockey to run Funny Cide too hard at the Preakness in an effort to prove his and Funny Cide's superiority and, therefore,  their innocence.  As a result of that effort, Funny Cide lost at Belmont and, therefore, lost the revenue generated by a Triple Crown winner.  The Court held that despite the "novelty and creativity" of the claims, the loss was not a direct result of defendants' article.

While the opinion is timely (the Preakness was run last weekend), what is most interesting about it is Judge Farmer's concurring opinion.  His concurrence does not make any novel legal arguments or take issue with the substance of the per curiam decision.  Instead, it leads with an argument against "dreary," "tedious" and unnecessarily long judicial opinions.

Judge Farmer argued that some opinions should be written in alternative styles to open the law to a larger audience, and he resolved to occasionally write in other styles:

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago.  I had decided that the style of some opinions could--and should-- be unconventionally changed for greater openness to all readers.  I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.  Then came this case.

Judge Farmer chose this case to act upon his resolution.  He wrote his opinion as though he were telling a story/writing a novel -- it has a plot (at least a loose one), avoided legal-ease or citation, and it used short, decisive sentences:

The horse won the Kentucky Derby.  Decisively.  Tenth fastest time in Derby history.  First jewel in the Crown.

Sure, there was some racket in the press afterwards.  The Miami newspaper said it saw something in the jockey's hand, some illegal electric thing . . . .

                                                    * * *

Then the horse won the Preakness Stakes.  And it's not even close.  Wins by nearly ten lengths. . . .

                                                    * * *

Whatever.  It's a lock.  Two jewels for the Crown.  Make room for the third.

I applaud Judge Farmer for making a point and taking a risk, even if his panel members refused to join his opinion because of its style.  The law would lose something if cases that illuminated new or resolved uncertain legal principles were written in this style.  But writing other opinions in a manner that makes them more readable is an excellent idea.  Writing so that more of the people governed by the laws can understand the court's opinions can only benefit society.

This case also brings to mind Evan Schaeffer's recent post at his Illinois Trial Practice Weblog about the length of legal briefs.  I fully agree with Evan, lawyers should hone their reasoning and writing skills in an effort to write shorter, more focused arguments.  The clients, the courts and the lawyers themselves would benefit from an overall reduction in brief length.

Also, thanks to the Wall Street Journal Law Blog for identifying the opinion.

• Email This
• Print
• Trackbacks
• Share Link

KSR v. Teleflex, 550 U.S. __ (2007).

A unanimous Supreme Court rolled back the Federal Circuit's teaching, suggestion or motivation obviousness test in favor of the Court's prior, and substantially broader, test as set forth in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966).  Justice Kennedy delivered the Court's opinion and called the Supreme Court's approach to obviousness "broad and flexible."  The Court also noted that because the parties did not dispute the prior art, the claim's scope or the level of ordinary skill in the art and because obviousness is a legal question, the district court was correct to grant summary judgment in this case.

In addition to bringing the Fed. Cir. down to size, the Supreme Court also took a swipe at the PTO:

We need not reach the question whether the failure to disclose [the prior art reference] during the prosecution . . . voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption - that the PTO, in its expertise, has approved the claim - seems much diminished here.

The KSR decision opens up obviousness and will make obviousness a much larger issue in patent cases.  And whatever else the "new" old law may do, it will keep patent litigators very busy for years to come.  You can download a PDF of the Court's opinion from the Blog's archives.

Here is a list of links to other KSR commentary across the internet, as you can see you could read about KSR all week:

Patently-O

Prof. Sarnoff via Patently-O

WSJ Law Blog (with interesting comments from several key players and practicioners)

Patent Docs

Infinite Monkey Theorem

File Wrapper

271 Patent Blog

Tech Dirt

Patent Prospector

Fire of Genius and here

Orange Book Blog (for the decisions effect on pharma patents)

Michael Barclay of Wilson Sonsini via the SCOTUS Blog

Dan Bromberg of Quinn Emanuel via the SCOTUS Blog

Chicago Tribune

• Email This
• Print
• Trackbacks
• Share Link

In January, Cisco's General Counsel Mark Chandler gave a speech at Northwestern's Securities Regulation Institute that made major headlines.  Because several in-house friends and colleagues have mentioned it to me recently, I thought it was worth a post.  Anyone involved in the private practice of law should take the time to read it.  It highlights an issue that is critical to achieving a client's desired results and to developing a strong relationship between a client and its outside counsel -- aligning the interests of the counsel to those of the client.  Chandler's speech resonates with me because when I was in-house, I struggled to align my outside counsel's interests with those of my company.  It seems that it should be an easy task, but many outside counsel do not get it. 

Here is an excerpt from the speech:

From the law firm think perspective, “sales” too often means a one to one relationship with a lawyer who bills by the hour. As a client, I can tell you what I want to buy is access to information, strategy, and negotiation, and, in the case of litigation, to courtroom skill as well.

There’s a fundamental misalignment at work here. Law firms cannot afford to own the business risks of their clients, have a lot of employees to pay and also have to allocate the limited resources of extraordinary star partners. On the other hand, we clients want access to information and counseling and want to pay for value received. Put most bluntly, the most fundamental misalignment of interests is between clients who are driven to manage expenses, and law firms which are compensated by the hour.

                                                                 * * *

F]irst, winners will be those who are able to standardize services to meet clients’ cost management and predictability needs where very good is good enough. Second, those who can differentiate themselves by providing the top notch of customized services, where that is needed, will also win. 

As you can see, it is very provactive.  Private practitioners should read the speech, I can assure you your clients are reading it.  For further discussion and analysis check out:

WSJ Law Blog

Legal Blog Watch

shlep:  the Self-Help Law ExPress

My Shingle

• Email This
• Print
• Trackbacks
• Share Link

In January the House of Representatives passed a bill that would establish a pilot program in five district courts to develop district court judges with patent expertise.  The program will provide judges in the five districts the opportunity to get specialized patent training.  Cases, including patent suits, in the five districts will continue to be randomly assigned, but judges without the specialized patent training will have the option to transfer the cases to one of the patent-trained judges.  Each of the five district's will also be allowed to hire patent law clerks available to help judges on patent cases.  I assume these clerks will be like habeas clerks that many district courts already have or staff clerks/attorneys at some of the regional circuits.

I expect that many district court judges will, quite reasonably, believe they already have gained the necessary experience through their own hard work, but will also appreciate the extra law clerk help and the training.  It is a very interesting proposal which many expect to be approved by the Senate and signed into law this year.  For more on the pilot program, check out Patently-O, the Infinite Monkey Theorem Blog (a new blog affiliated with www.patentmonkey.com  - both of which are worth checking out), the IP Blawg and the WSJ Law Blog (an older post, but with some good information).

• Email This
• Print
• Trackbacks
• Share Link

Yesterday the Tribune ran another article on big firm associate salaries -- .Biggest Chicago Firms Boosting 1st-Year Pay.  This story only made page 3 of the Business section, not the front page like the last article.  But unlike the last Trib article which only predicted that firms were considering responses to the New York raises, this one reported that Sidley and Mayer, Brown have both raised first-year salaries from $135,000 to $145,000.  The article also predicts that other large Chicago firms will be following suit. 

The Blog is not going to get side-tracked reporting on which firms do and do not raise, so if you are looking for more updated information check out other sources such as Above The Law and the WSJ Law Blog, which does not cover the salaries obsessively but has done several posts on this round of salary raises.

• Email This
• Print
• Trackbacks
• Share Link

As a life-long Lions fan -- yes, I did say "fan" -- it pains me to say "Go Bears", but this is a Chicago-focused blog and so, with Chicago's Bears preparing for Sunday's Big Game* I feel obliged to write the post.  In order to keep this law-related, I direct you to the WSJ Law Blog's Football Hall of Fame.  The criteria is combined football and legal prowess.  Several Bears have been mentioned, including:    Bob Thomas (Chief Justice of the Illinois Supreme Court) and Chris Zorich.  My choice would be Gerald Ford, a Captain and national champion at Michigan, Speaker of the House and, albeit briefly, POTUS. 

* It is very, very dangerous to use the NFL's trademarks, as reported by The Hollywood Reporter, Esq. Blog.

• Email This
• Print
• Trackbacks
• Share Link

Father Robert Drinan, S.J. died on Sunday.  Father Drinan was a founder of modern (post-Watergate) legal ethics and a colorful, important character in American political history, having been a member of the House Judiciary Committee during the Nixon impeachment proceedings and an outspoken critic of American activities in Vietnam and Cambodia while he was in Congress.  Father Drinan was also a professor at Boston College (actually the Dean) and then at Georgetown.  While getting my JD at Georgetown, I was blessed to spend a considerable amount of time with Fr. Drinan as an Editor on the Georgetown Journal of Legal Ethics, created by Fr. Drinan and still the only ethics journal in the country, and when I took several of his classes, including his Advanced Legal Ethics Seminar.  Fr. Drinan loved teaching and he had an endless supply of experience from which to teach. 

Despite my obvious love and respect for Fr. Drinan, I was not going to post about his passing on the Blog because I could not see how he had much to do with intellectual property law or Chicago (he was a Boston man who loved the BC sports teams, it really hurt him when he lost our friendly wager over the 98 Wolverines-BC Eagles NCAA Hockey National Championship).  But it turns out I was wrong, Fr. Drinan also played an important role in shaping IP as a member of the House IP subcommittee, according to Bill Patry.  Father Drinan will be missed.  He was a great man and an amazing teacher who brought kindness and warmth to everything he did and all he met.

You can read more on Father Drinan, among other places, at the WSJ Law Blog and Georgetown's touching page of student, staff and faculty tributes.

• Email This
• Print
• Trackbacks
• Share Link

For the last week or two, many of the big New York City law firms have been raising associate salaries -- a $15k bump for young associates and a $20k bump for more senior ones -- raising starting salaries to $160,000 for first year associates.  It has not hit Chicago directly yet, but the Tribune ran a front page article on it Sunday, Raising The Bar For Legal Salaries.  Several large Chicago firms asked to comment for the story all said "they were still discussing the issue and had not made a decision on whether to raise salaries."

If you want more information on the raises, check out the excellent coverage at Above The Law (an entertaining site by former AUSA and creator of Underneath Their Robes David Lat) and The WSJ Blog.

• Email This
• Print
• Trackbacks
• Share Link

• Email This
• Print
• Trackbacks
• Share Link