November 2007

Are You Serious, Counselor?

November 29, 2007

One of the many oddities of the legal profession is that judges have to take truly bizarre allegations seriously, and use detailed legal logic to dismiss them. This is like watching Aristotle being forced to debate John Cleese during a Monty Python revival festival. You see this most often in pro se lawsuits brought by prison inmates who are challenging their convictions or treatment during incarceration. You see it a lot less often in the rarified world of intellectual property litigation. However, a case decided earlier this year is a good example of this in just that context. Harding Earley (the Harding firm) is a law firm ouside Philadelphia. It defended a client in a case alleging trade secret misapropriation and trademark infringment, brought by Healthcare Advocates, Inc. However, by doing so the Harding firm itself attracted the wrath of Healthcare Advocates, and was sued by Healthcare for copyright infringment and various related claims. This suit garnered some attention at the time it was filed, and I wrote about it here, in a blog entry titled The Wayback Machine and the DMCA. Rather than repeat the basic facts here, I refer you to the original article. The case has now been decided by the Federal District Court for the Eastern District of Pennsylvania (Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey). The issues presented, and their resolution by the…

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Recent Cases Under the Communications Decency Act

November 27, 2007

My partner Joe Laferrera recently wrote this article on the Communications Decency Act (CDA) which provides important legal protections to internet service providers. I have written often on this topic (see here, here and here) and Joe’s article discusses two recent cases applying this important law, one protecting a web site from liability, the other refusing immunity. . . . But although Section 230 of the CDA provides broad immunity for online service providers, that does not mean that there are no legal risks inherent in the business of providing online services on the web. … continue reading

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SJC Briefs Available Online

November 26, 2007

Recently, I wrote an entry describing how ScotusBlog was making available online every brief filed in the Supreme Court (where the Court has accepted cert.). Now, the Massachusetts Supreme Judicial Court is making all briefs filed in its cases availabe on the SJC website. These resources are a windfall to practitioners, who can study the research and arguments made by other attorneys, rather than tackling difficult legal issues cold. These resources (unimaginable in the pre-Internet age) can, if used properly, make practitioners both more efficient and more sophisticated in evaluating effective legal arguments.

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Oral Argument in the Demoulas Ethics Case

November 21, 2007

This falls squarely under the “what were they thinking” category. I’ve written about the attorney discipline proceedings in the Demoulas case here and here. Oral argument before the Massachusetts Supreme Judicial Court took place on October 4, 2007. These arguments may be viewed in full here (Crossen) and here (Curry). When the SJC issues its rulings on these two appeals, the door will finally close on this scandal, ten years after it first opened. The Justices’ questioning of the attorneys for Messrs. Crossen and Curry was surprisingly gentle, and their questioning of the BBO’s attorney quite aggresive. If I were in Crossen or Curry’s shoes, I would be cautiously optimistic following this hearing.

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Angel Financing Could Do With A Little Streamlining

November 15, 2007

Investments by angel groups have become too complicated. As groups get more aggressive in pursuing profits, and seek more protection against downside risk, their deals have become as complex as venture capital deals. This complexity costs time and money, reducing the benefit to both investors and companies. By streamlining the transaction structure, angel groups could simplify negotiations, shorten the time it takes to do a deal, reduce transaction costs, put more money to work building new companies and ultimately improve their own returns. Click here to continue reading this article, by my partner Bill Contente, which was published in the November 9, 2007 issue of the Boston Business Journal. And, as long as I’m shamelessly showing off all the brilliant people I’ve been able to surround myself with, here is an article recently published by my partner Andy Updegrove in the October 26, 2007 issue of Mass High Tech: How often have you heard it said that “patents foster innovation?” That phrase rings true in pharmaceuticals, where investment requirements are enormous and failure common. But does it also apply in areas such as software? Does it really take the promise of a legal monopoly to motivate a typical founder or CTO to innovate? And what about the advantages patents give big companies over emerging ones, simply because the former can credibly threaten expensive patent litigation while the latter cannot? Click…

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"If I owned Texas and Hell, I would rent Texas and live in Hell"

November 14, 2007

This quote, attributed to General Phillip Sheridan in 1868, describes how many patent defendants feel about Texas, and particularly Marshall, Texas, which has become a patent litigation black hole, sucking in unwilling defendants from around the nation. A blog, titled the Patent Troll Tracker, closely follows events in Marshall. Here is an abbreviated excerpt from a recent post concerning patent litigation in Marshall: This is really the year of the patent troll. Last year, approximately 6,000 defendants were sued nationwide in about 2,800 patent cases. This year, the 6,000th defendant was sued sometime in early October. With the number of cases up nationwide probably 5% over last year, we’re still projected for at least a 30% increase in the number of defendants sued. More on that data in a later post. Why? It’s because of the numerous multi-defendant patent litigation cases being brought by non-practicing entities and patent trolls in the Eastern District of Texas. . . . Think about it. When else in our nation’s history have we experienced a 30+% increase in the number of patent claims in one year? Now think about why we are currently experiencing this extreme uptick in patent litigation. It’s simple: patents, at least in the eyes of the market, are overvalued right now. Damages are being awarded in patent cases without basis in reality, and out of proportion to the actual value…

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ScotusWiki

November 13, 2007

ScotusBlog is, in my view, an example of just how good a legal blog can be. A group of lawyers at Akin Gump, assisted by attorneys at several other firms and universities, provide in-depth, daily briefing and commentary on the Supreme Court of the United States (SCOTUS). If you are inclined to follow the Supreme Court, this is the first place to go. You may never need to go elsewhere. Now ScotusBlog has added ScotusWiki, a companion site that provides comprehensive information on each SCOTUS case and will, presumably, allow universal editing, a la Wikipedia. However, even in its current, nascent form the wiki is facsinating. The editors dedicate a page to each case, where they provide a case summary and links to all of the briefs, and more, for each case. For example, here is a link to the page dedicated to Stoneridge v. Scientific-Atlanta, a case that received enormous attention leading up to oral argument. The issue was under what (if any) circumstances private investors can sue accountants, lawyers, financial advisors or other businesses that allegedly participate in a scheme to violate the federal securities laws. The wiki page dedicated to this case includes the opinion below, the cert petitions, the briefs on the merits (including the many amici briefs), a summary of the issues, a link to the oral argument transcript, and articles, blogs and podcasts concerning…

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As Allen van Gestel's Tenure at Head of Business Session Draws to a Close, the Boston Globe Comments . . .

November 7, 2007

The Globe article begins: Judge Allan van Gestel dismisses the buzz that is making its away around Boston’s legal community that he is stepping down from the state’s business court that he shaped so effectively over the last seven years because he ruffled the feathers of his fellow judges and his bosses with his concerns about the future of the court. He is not, however, backing down a bit about those concerns. [click here to continue reading] To read Judge van Gestel’s letter to the the adminstrative judges (described in the Globe article) click here. To read the administrative judges’ response, click here.

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Do Androids Dream …

November 6, 2007

As the lawyer drifts off to sleep the fantasy of the “perfect” IP case drifts across his mind. Not a patent case (way, way too complicated), not a copyright case (too boring if straightforward, and too difficult if not) ), not a trademark case (surveys, secondary meaning, no thanks), but a straightforward, meat and potatoes, trade secret case: there is a trade secret, and someone stole it, case over. The lawyer falls asleep thinking about the perfect case, a big case, but a realtively easy case. After all, most cases are so hard, everyone deserves an easy case once in a while, right? In the lawyer’s dream a former former employee of the lawyer’s client (lets call the employee him Jameel Ahed, or simply Mr. Ahed) has started a competitive company. The client has obtained the competitive product, taken it apart, and concluded that Mr. Ahed very likely used the client’s trade secrets to create the product. The lawyer files suit, and hires private investigators to follow and observe Mr. Ahed after the lawsuit is served on him. A thought drifts through the lawyer’s dreams – the stakes, the stakes need to be high, very high for this to be a good case. His unconscious mind provides the answer: his client and Mr. Ahed’s company are competing for a $280 million contract to sell “tactical robots” to the U.S. military,…

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Judge Gertner's Injunction in iRobot Case

November 5, 2007

iRobot’s trade secret case against Robotic FX has attracted a fair amount of attention in Boston, and has been reported in detail by Xconomy here. On Friday Judge Gertner issued her decision on iRobot’s motion for preliminary injunction, which has been posted by Xconomy here. I’ll update this posting once I’ve had a chance to read her Order in detail.

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