May 2008

"Employee Non-Compete Agreements: Protecting Innovation or Stifling It?" – Harvard's Berkman Center to Debate Economic Implications of Noncompete Agreement

May 30, 2008

See Xconomy article here for details. Quoting from the article: Employee Non-Compete Agreements: Protecting Innovation or Stifling It? Thursday, June 19th, 3:00-7:00 pm Ames Courtroom, 2nd floor of Austin Hall, Harvard Law School There will be a panel discussion, followed by a cocktail reception. Anyone is free to attend. You just have to register by June 12 (a week before the event) by emailing your name, title and company to Amar Ashar at the Berkman Center: ashar@cyber.law.harvard.edu.

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Quick Hits: Supreme Court Arguments, Unpublished Mass Appeals Court Decisions, Trademark Law Decision

May 30, 2008

The “Oyez” web site now presents oral arguments before the Supreme Court in multimedia: As you listen to the argument you see a synchronized transcript, and a photo of the judge or lawyer speaking appears every time there is a change in speaker. This multimedia presentation makes the experience of listening to these arguments much easier and more pleasant. Link here. The Massachusetts Appeals Court has made its unpublished decisions available here. This is particularly helpful, since these decisions are difficult to obtain, and on February 25, 2008, the Court issued a ruling permitting unpublished decisions to be cited for their “persuasive value.” This modified a 23 year old court rule that unpublished decisions could not be cited as legal authority. Massachusetts Federal District Court Judge F. Dennis Saylor, IV has issued a written decision in Commerce Bank and Trust Co. v. TD Banknorth, Inc. (see below). Judge Saylor found a likelihood of confusion between “Commerce Bank” and “TD Commerce Bank,” and issued a preliminary injunction in favor of the plaintiff. While this decision is unexceptional, it is a helpful road map to trademark law in this district, and is another example of Judge Saylor’s crisp and comprehensive writing style. Commerce Bank PI Decision – Upload a doc Read this doc on Scribd: Commerce Bank PI Decision

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Dummies Guide to Understanding Subprime Mortgages

May 27, 2008

A lot of people are having a hard time understanding how the country got into the sub-prime mortgage mess, or even exactly what a “sub-prime mortgage” is. How could so many intelligent, responsible people in housing, banking, finance and government have gotten this so wrong? If you’re are one of these people, this skit may aid your understanding. Oh, and fans of the Wiley Publishing “Dummies” series, I have nothing to do with them at all. In fact, I’m a big fan. | View | Upload your own

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Judges Who Blog

May 27, 2008

Very few judges blog, but Massachusetts Federal District District Court Judge Nancy Gertner is one of the first, if not the very first. An article in the May 27, 2008 Boston Globe discusses her blogging for Slate, one of the best online magazines. If you’re interested in reading Judge Gertner’s blogs, go to “Convictions: Slate’s Blog on Legal Issues” and use the “Search This Blog” field in the upper right corner of the screen to search for “Gertner”. Judge Gertner’s first blog entry, on March 17, 2008, opens as follows: I am an unlikely blogger. I am a United States District Court judge for the District of Massachusetts. . . . Although judges are more limited than other public actors in what they can say about a host of things, like cases pending before me or even cases pending before other judges, we are permitted to speak about the administration of justice and other general legal matters. To me, the issue goes beyond what we are “permitted” to comment about and what we are not “permitted” to comment about. I think judges have a responsibility to participate in the public debate and that’s what I hope to do here — all consistent with, indeed enhancing, my “day” job. Click here for the full post.

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The TimesMachine

May 23, 2008

If you have a home delivery subscription to the New York Times (even only the Sunday Times), check out the TimesMachine — a collection of full-page image scans of the newspaper from 1851-1922. That’s every issue and every page and article, advertisements and all, viewable in their original format. April 16, 1912 To read how this was done, click here. “Using Amazon Web Services, Hadoop and our own code, we ingested 405,000 very large TIFF images, 3.3 million articles in SGML and 405,000 xml files mapping articles to rectangular regions in the TIFF’s. This data was converted to a more web-friendly 810,000 PNG images (thumbnails and full images) and 405,000 JavaScript files – all of it ready to be assembled into a TimesMachine. . . . “

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Rambus Court: "Price Raising Deception" Not Competitive Harm

May 22, 2008

The “Rambus litigation” in all its many permutations — Justice Department investigation, FTC proceedings and multiple civil cases — has been documented and commented upon widely. For a recap see Andy Updegrove’s article here. At the heart of the legal controversy is the allegation that during the 1990s Rambus, the owner of key DRAM patents or pending patents that solved the CPU-memory chip “bottleneck” problem, failed to disclose these patents to JEDEC, an important standards-setting organization (“SSO”) to which Rambus belonged. JEDEC, uninformed of the existence of these patents, incorporated the Rambus technology in its standards, which were then widely adopted in the memory chip market. Because Rambus withheld disclosure of its patents, JEDEC did not have the opportunity to exercise either of the two options open to it when a member disclosed proprietary technology: either choose another technology or negotiate industry-wide favorable licensing terms as a condition of adoption of the standard (so-called “reasonable and non-discriminatory” license fees, or”RAND” royalties). RAND royalties are negotiated and agreed-upon ex ante, that is, before the technology owner’s IP is adopted, and therefore before the technology owner acquires market power by reason of the adoption. By the time Rambus announced its patents and began demanding royalties (and filing patent infringement suits against companies that refused to pay royalties), Rambus had achieved a technical “lock-in” that made it difficult for the memory chip industry…

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Interesting Documents: "Order for Discovery of Computer Memory Devices" in ConnectU v. Facebook

May 20, 2008

Here is an example of just how complex electronic discovery can become when the stakes are high, and the lawyers are prepared to negotiate an extremely detailed discovery protocol. This document is from the ConnectU v. Facebook litigation, in which ConnectU alleges that the founders of Facebook misappropriated ConnectU ideas and technology. The Order is signed by Magistrate Collings, who is known to be one of the most experienced and sophisticated judges in the Federal District of Massachusetts when it comes to issues of electronic discovery. I’m sure that even he was challenged by this document. Order for Discovery of Computer Memory Devices – Upload a doc Read this doc on Scribd: Order for Discovery of Computer Memory Devices

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Judge Young Pulls No Punches When it Comes to Mandatory Sentencing

May 19, 2008

You may recall the brouhaha that arose last year when a Massachusetts state district court judge vacated a prior state court conviction in order to mitigate the impact that the conviction would have on the defendant under the federal sentencing guidelines in an upcoming sentencing in federal court. The defendant, Matthew West, was due to be sentenced in federal court by Judge Young later the same day. Under the federal sentencing guidelines, the existence or non-existence of a prior conviction made a huge difference in how much time West would be required to serve under the guidelines. Hence the urgency (on the part of West) in getting the earlier conviction vacated so it wouldn’t be counted against him. The whole bizarre story is described here. You may recall that after that story broke the judge was the subject of massive public criticism (think talk radio, Boston Herald). She ended up in the emergency room with chest pains, and upon recovering she changed her mind and reinstated the conviction. Wow. Being a judge in Massachusett is very stressful. (For another example of just how stressful, click here). Now Massachusetts Federal District Court Judge William Young has used his sentencing memorandum in the Matthew West case to expound his views on the legislative and judicial history behind the guidelines. This 35 page memorandum, available here, is a brilliant, exhaustively researched and opinionated…

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The Amazing Nathan Myhrvold

May 8, 2008

Caption: “The history of science is full of ideas that several people had at the same time.” Link to the full article in The New Yorker, May 12, 2008 here. Teaser: Myhrvold started Microsoft’s research division, leaving, in 1999, with hundreds of millions. He is obsessed with aperiodic tile patterns. (Imagine a floor tiled in a pattern that never repeats.) When Myhrvold built his own house, on the shores of Lake Washington, outside Seattle-a vast, silvery hypermodernist structure described by his wife as the place in the sci-fi movie where the aliens live-he embedded some sixty aperiodic patterns in the walls, floors, and ceilings. His front garden is planted entirely with vegetation from the Mesozoic era. (“If the

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Quick Hits: "In Hand" Service and Deceptive Advertising

May 8, 2008

What does it mean when a contract requires that notice be given “in hand”? Believe it or not, despite over 225 years of Massachusetts jurisprudence, until now no Massachusetts court had ever considered this question. In McMann v. McGowan, 17 Mass. App. Ct. 513 (2008), decided on April 7, 2008, the Appeals Court held that “in hand” means delivery into the hand of an authorized receipient. The Court rejected the argument that “in hand” includes delivery by hand, the position argued by the losing party. Of such things the law is built. Everyone knows that false or deceptive advertising is illegal, but a recent decision by Superior Court Judge Thayer Fremont-Smith provides a reminder of how difficult it is for a competitor allegedly harmed by false advertising to prove actual harm and damages, except in the rare case where there are only two firms in the market. Where there are more than two competitors, as Judge Fremont-Smith points out, “it cannot confidently be inferred that any customers procured by defendants’s false advertising were at plaintiffs’ expense.” While not dismissing the case outright, recovering any damages looks like a steep uphill fight for the plaintiff in this case. IDT Telecom v. Voice Distributors, Middlesex Superior Court, April 11, 2008.

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A Postcript on EDtTx

May 6, 2008

A postcript on my last posting regarding the so-called “rocket docket” in the Eastern District of Texas. Our firm is counsel for a client in a patent suit filed in Marshall, Texas (the very heart of darkness for patent defendants, some would say) on November 2, 2007. To date (more than six months later), the Court has yet to schedule the initial case management conference which, under the local patent rules, is the “kick off” event for patent cases in EDtTx. To date, there has been almost no activity in the case apart from the filing of answers and a motion to dismiss (not yet acted on) by one of the defendants.

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Popping A Bubble in Texas

May 6, 2008

“a renegade jurisdiction” Justice Antonin Scalia, referring to Marshall, Texas, during oral argument in eBay v. Mercexchange ______________________ There are all kinds of bubbles – stocks, commodities, housing, tulip bulbs, and even litigation. The Eastern District of Texas (EDtTx) has been the scene of a patent law bubble for the last seven years. However, like all bubbles, it can’t last forever, and it’s only a matter of time before this one pops. The patent litigation history of EDtTx and the causa sine qua non of its popularity in with the plaintiff’s patent bar, Judge T. John Ward, are described in detail is an excellent article in the March issue of the American Lawyer. The article, titled “Taming Texas” and written by Nate Raymond, describes how Judge Ward nurtured the patent practice in Texas with a “rocket docket” and the support of pro-plaintiff jurors who are strongly partial to the protection of property rights. Among the highlights of the story: As of 2007, there had not been a defense win in a patent infringement case the district in three years. From 2001 to mid-2006 plaintiffs had won 90% of the district’s patent trials. The flood of patent cases in EDtTx has created an economic boom in the services industries (hotels, restaurants), and of course in the legal profession. Many lawyers who formerly focused on “PI” (personal injury) now focus on “IP”…

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