October 2008

Looking for a New Job? How About Federal IP Czar?

October 20, 2008

So, you’re unhappy in your law firm job? Ready to move on to a job that has lots of responsibility but doesn’t require hourly billing and client headaches? A job that puts you in close proximity to the President and his closest advisers?  You’d like a job that provides security and good benefits? A federal pension to offset the losses in your 401K account? Well, you can thank President Bush for creating this exciting new job when he signed the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” last week. The legislation calls this the “short title” of the law. Yes, Congress does have a sense of humor. We’ll call the new law PRO-IP, which is even shorter, and tells you almost as much about the law as the slightly longer title (but still short, no disrespect meant) assigned by Congress. Copyright lawyers always get excited when the Copyright Act is amended, but as I suggested above, there is even greater cause for excitement this time: the new law creates the position of “International Intellectual Property Enforcement Coordinator.” This is a mouthful, so we’d prefer the term “IP Czar” (or perhaps simply “the Czar” to the Czar’s subordinates when they’re talking about her ourside of her hearing). This is a great job. You get to work in the Executive Office of the President, (the “EOP” as its known…

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Google Makes the Case for its Advertising Deal With Yahoo

October 18, 2008

Here’s an interesting web page from Google entitled Facts About the Yahoo-Google Advertising Agreement. There, Google “makes the case” for its proposed deal with Yahoo, which it describes as follows: On June 12, 2008, Yahoo! and Google announced an agreement that gives Yahoo! the ability to use Google’s search and contextual advertising technology through its AdSense™ for Search and AdSense for Content advertising programs. Under the agreement, Yahoo! has the option to display Google ads alongside its own natural search results in the U.S. and Canada. In addition, Yahoo! can serve contextually targeted ads on its U.S. and Canadian web properties as well as on its current publisher partner sites. Yahoo! will continue to operate its own search engine, web properties and advertising services. In addition, Yahoo! and Google agreed to enable interoperability between their respective instant messaging services bringing easier and broader communication to users. On this web page Google presents a White Paper of sorts, in web format, with links to sections such as “what the deal means for advertisers” and “why the deal is good for competition.” It’s somewhat unusual for a company under Federal antitrust scrutiny to make a public “pitch” like this, but it’s consistent with Google’s corporate personality, which tends to be more “outward facing” than more conventional corporations. Here’s the Powerpoint embedded on the Google page:

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The (now notorious) Sequoia Capital Slideshow – RIP Good Times

October 17, 2008

Hard times, hard times, come again no more. Many days you have lingered around my cabin door. Hard times, come again no more. Hard Times, by Stephen Foster, 1854 _______________________________ Sequoia Capital Slideshow – RIP Good Times – Upload a Document to Scribd Click here to read more about this presentation.

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A Great UDRP Decision Search Engine

October 17, 2008

USpeakWeType Technologies, LLC has done the trademark bar a big favor by creating a UDRP search engine. This is the first time we have had access to the enormous volume of material that has been decided in the UDRP arbitrations. An example: assume that you are involved in an arbitration that has been assigned to panelist Ian Bradshaw. A search on his name shows that he has decided nine cases, involving brands as well known as Volvo and Chivas. He has ruled in favor of the complainant (either via tranfer or cancellation of the respondent’s domain) in every case. It would be nice to know this, wouldn’t it?

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"Brandsucks.com"

October 17, 2008

Did you ever wonder how many large companies register their own “sucks” domain names (as in “microsoftsucks.com” or “AIGsucks.com”) in order to prevent someone else from doing so? Like, some unfriendly nasty that wants to use the site to bash the company? How many “CIOs” (“chief information officer,” for the uninitiated; don’t blame yourself if you didn’t know this), wish they had registered variations of their companies’ names before the “gripers” got ahold of them? Many, I suspect. Check out ebaysucks.com or alitaliasucks.com for example. Nasty stuff, for sure. Not good corporate publicity, for sure. Bet the folks at eBay and Alitalia wish they’d grabbed these domain names before they were picked up by gripers. The cost of buying “ebaysucks.com” before someone else does is close to zero. It’s just a matter of anticipation. Of course, its hard for companies to challenge the ownership of sites like these, since a clever owner can claim First Amendment protection as long as he or she doesn’t misstep and use the domain in a way that results in consumer confusion. We often tell clients to buy up all the “surrounding” names for their domain of choice. The dot-COM, dot-ORG, dot-NET top level domains, and any offensive variations.  Sometimes they do, sometimes they don’t. Occasionally, I’ve wondered how many of the large, Fortune 500-type U.S. companies create this kind of protection for themselves. Well,…

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Judge Gants' Decision in NERA v. Evans

October 15, 2008

One of the great benefits of the Suffolk Business Litigation Session (the BLS) is that the judges tend to write detailed opinions explaining their decisions. This tends to be less true elsewhere in the Superior Court. Recently-retired Superior Court Judge Allen van Gestel created a tradition of written jurisprudence while he headed the BLS, and his successors are keeping up the tradition. While these decisions are not published in an official reporter, and they are not binding precedent in the strict legal sense, they are often made available on the Internet, on legal search engines such as Westlaw and in the unofficial Mass. Law Reporter. In this way attorneys and the public are informed on how the BLS judges tend to see issues that come before them. And of course, any given judge is likely to be greatly influenced by a decision he or she has authored on a particular issue; there’s nothing better than citing a judge back to herself. The extensive and detailed opinion in The National Economic Research Associates, Inc. v. Evans, decided by Judge Ralph Gants in early September 2008, shows that the new BLS judges are continuing Judge van Gestel’s tradition of written decisions. In NERA v. Evans Judge Gants was asked to decide (on summary judgment) a claim that David Evans had violated a covenant not to compete with NERA, his former employer. The…

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Zealous Advocacy, or Abuse of Advocacy?

October 11, 2008

In the Medtronic v. BrainLab patent litigation in U.S. District Court in Colorado, Senior U.S. District Judge Richard P. Matsch has sanctioned Medtronic Navigation, Inc. and its lawyers $4.3 million, an amount which represents part of the attorney’s fees and costs incurred by BrainLab in defending this case. This order is a follow-up to his decision last February ordering that Medtronic be sanctioned, but not deciding (at that time) the precise amount of the sanction. Unusual circumstances led to this disaster for Medtronic and its counsel. As many readers of this blog know, the judge, not the jury, determines the scope of the patent claims in patent litigation. This is done by the judge before trial, in what is often referred to as a “Markman hearing.” The name of the hearing is based on the 1996 U.S. Supreme Court decision in Markman v. Westview, which held that patent “claim interpretation” is the province of the judge, not the jury. After the judge determines the scope of the patent and the meaning of the claims, he or she instructs the jury accordingly, and the lawyers are expected to honor the judge’s rulings and tailor their case to the judge’s pre-trial claim interpretation. So, what went wrong in the Medtronics case? Apparently, during the jury trial on infringement the lawyers for Medtronic (the plaintiff), argued outside of the scope of claim interpretation…

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Two Articles of Interest (by Judges) in the Boston Bar Journal: Continuity and Change in the Business Litigation Session and Lessons for E-Discovery Practitioners

October 8, 2008

Two articles in the September/October issue of the Boston Bar Journal (pdf file on BBA site) are of particular interest. In the first, entitled “Continuity and Change in the Business Litigation Session” Superior Court Judges Judith Fabricant, Ralph Gants and Stephen Neal discuss the Business Litigation Session (BLS) as this session approaches its eighth anniversary and continues its transition following the retirement of Judge Allan van Gestel, who ran the BLS for its first seven years. Some interesting statistics cited in the article: The BLS (both sessions) takes about 300 cases per year. The court has approved 95% of applications for entry. In each of the two sessions (BLS1 and BLS2) there are fewer than 500 cases pending, as compared with over 800 cases in the other civil sessions in Suffolk County (on average). As a reminder, links to the BLS Administrative Directives, “Formal Guidence” memos and Procedural Orders are here. In the second article Federal Magistrate Judge Robert Collings discusses the “discovery saga” in the Qualcomm v. Broadcom patent case in San Diego. In that case it was discovered during trial that highly relevant documents had not been produced during pre-trial discovery. After trial, it was determined that over 300,000 relevant documents had not been produced. Needless to say, when that happens the “sugar hits the fan,” with awards of attorney’s fees and sanctions to follow. Judge Collings is…

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So This Is How Jurors Think – Who Would Have Guessed?

October 7, 2008

Jurors like to be able to submit written questions during trial (who wouldn’t want that option?) Jurors like preliminary jury instructions from the judge (who wouldn’t want to be oriented on the legal issues in the case at the outset?) Jurors like interim statements by counsel, rather than waiting until the end of the case (who wouldn’t like to be told what’s going on at various points during a long trial, rather than have to wait until the end, when it may be difficult to remember the testimony of witnesses who testified weeks earlier?) All of this, and a bit more, is in the Seventh Circuit Bar Association American Jury Project Commission Report. Lets see, the commission was comprised of three co-chairs, a four-person Executive Committee, and fifty eight (58) lawyers and judges, mostly from Chicago, and took three years to generate its report. Wow, those commission meetings must have been great networking opportunities. The full two hundred page-plus pdf report is here (click at your own risk).

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Will the FTC Appeal the D.C. Circuit's Decision in FTC v. Rambus?

October 7, 2008

At least one FTC Commissioner recently stated that he would support an appeal: As I said earlier, I personally support a petition for certiorari in Rambus. I think the D.C. Circuit’s decision is wrong and given the fact that it rests on important legal principles respecting causation in Section 2 cases. I think its implications are much broader than the standard setting context. The petition is due in mid- November and it is my hope that the Solicitor General weighs in to support us on this important effort. Section 2 and Standard Setting: Rambus, N-Data & The Role of Causation J. Thomas Rosch, Commisioner, Federal Trade Commission, Oct. 2, 2008 Click here for an earlier discussion of the D.C. Circuit Court of Appeals’ decision in the FTC/Rambus litigation.

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