January 2010

Judge Young Issues Mea Culpa on Expert Witness Testimony in Patent Case, Orders a Do-Over

January 27, 2010

Massachusetts U.S. District Court William Young has been teaching evidence law for as long as I can recall, even as far back as his pre-federal court days, when he was on the Superior Court bench (Judge Young was appointed to the federal bench in 1985, and had been a Massachusetts Superior Court Judge from 1978 to 1985). So it comes as a surprise to many when Judge Young admits he made an evidence-related error during a recent patent trial, and that as a result he will order a new trial. The case is NewRiver, Inc. v. Newkirk Products, Inc.  In brief, NewRiver’s patent claimed as an invention a computer-assisted method for manipulating securities information in the SEC EDGAR database to extract only certain information, such as mutual fund prospecti.  After trial the jury held some claims to have been infringed, and others to be invalid as obvious. The issue that has attracted attention is contained in Judge Young’s decision addressing the usual tsunami of post-trial motions for judgment notwithstanding the verdict. The problem arose in connection with NewKirk’s challenge to the validity of NewRiver’s patent. On this issue Newkirk’s expert testified as follows: Q:  Dr. Szymanski, please read claim 9. This is the independent claim. It states: A system for providing access to mutual fund compliance information comprising: An obtainment subsystem for acquiring securities information from one or more database sources and…

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“$2 Million for Stealing 24 Songs for Personal Use is Simply Shocking” Says Minnesota Federal Judge, Issuing Remittitur Order

January 23, 2010

Out of more than 30,000 cases filed against downloaders by the record companies only two end-user download cases have gone to trial and judgment: the Tenenbaum case in Boston, and the case against Jammie Thomas-Rassett in Minnesota. In the second case, the jury awarded the copyright owners $2 million for downloading (and allegedly distributing) 24 songs.  The federal judge to whom the case is assigned has now lowered that amount to $2,250 per song (the legal term of the judge’s action is “remittitur”). Some quotes from the Thomas-Rassett January 22, 2010 decision: After long and careful deliberation, the Court . . . remits the damages award to $2,250 per song – three times the statutory minimum. The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music. . . . although Plaintiffs were not required to prove their actual damages, statutory damages must still bear some relation to actual damages. . . .  This reduced award is significant and harsh. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not entrusted to this Court. . . . Thomas‐Rasset argues that the ratio of the statutory damages award to actual damages in this case, when measured in songs, is 1:62,015. She bases this calculations on…

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The Boston Area Technology Sector is a Lot Like Silicon Valley/Santa Clara County …. Not.

January 22, 2010

A table from Branko Gerovac’s website, Empirical Reality compares the technology areas of Massachusetts and Silicon Valley The two areas are far more alike, on the statistical level, than I had realized.

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If the Feds Oppose Him, Tennenbaum (and Nesson) Must be Right! – Joel Fights Back

January 20, 2010

Joel’s last chance before Massachusetts Federal District Court Judge Gertner (“Joel Fights Back”) is his post-judgment motion to set aside or reduce the damages award against him on the grounds that the judgment is unconstitutional – after all, what government would punish a student to the tune of tens of thousands of dollars for a crummy mp3 download he could have purchased for less than a buck?  Ours, of course. Joel’s Harvard Prof. lawyers filed a motion – punitive and unconstitutional, said they. The DOJ disagrees.  Quite proper, say they, per brief below. It’s not for me to say, but I’m thinking that there are some pretty big egos on the defense side of this case.  Nothing wrong with that, of course ….. DOJ Tennenbaum Post-trial Brief

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The Road Goes on Forever, But the Lawsuits Never End: ConnectU, Facebook, Their Entourages

January 18, 2010

The ConnectU/Facebook legal saga is truly astounding.  Imagine a mature Oak tree.  Now give the it properties of Kudzu vine (the “vine that ate the South”).  Each branch of this tree is another lawsuit involving ConnectU, Facebook, the principals, and their lawyers. Now, a new branch has burst forth.  Wayne Chang has sued ConnectU and its lawyers in Superior Court Business Litigation Session in Suffolk County, Boston, claiming that Chang is entitled to as much as 50% of the value of the ConnectU/Facebook settlement (so called, since ConnectU has challenged the finality of the settlement). You can read about the ConnectU/Facebook saga here, or wait until the movie comes out. Here is the complaint in the Chang case, and apologies to Robert Earl Keen. Chang v. Winklevoss Complaint

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What a Phish …

January 18, 2010

A phish I received this weekend.  These are getting better and better (no typos, no foreign language malapropisms), and I can easily see some small percentage of recipients getting “caught” by this phishing expedition.  These links get shut down almost immediately, but I have disabled this link, in the same spirit that I’d be careful with an empty gun. BOA Phish

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Mister Softee Bitten By Waiver Under FRCP 50

January 18, 2010

I’ve written before about how dangerous waiver is for lawyers.  It lurks everywhere, like sharp coral just a few inches beneath the water off an inviting tropical beach. In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up on a reef with razor sharp coral when the Federal Circuit may have refused to reverse a $290 million trial verdict on what the court considered a waiver technicality. As every experienced trial lawyer knows, trials are a virtual waiver landmine – if you don’t proffer the evidence a judge excludes, you’ve waived it on appeal.  If you don’t object to jury instructions, you waive the right to challenge them on appeal.  This list seems almost endless, and there’s nothing a federal court of appeals likes more than to dismiss an argument on the grounds that it was, somehow, waived during trial. This having been said, there are a few potential waivers points that lawyers absolutely MUST keep in mind – to the point where the documents that will avoid the waiver should be prepared before trial, subject only to updating as the trial progresses and the moment of truth (or waiver) is reached.  These waivers arise under FRCP 50, and are: Before the case goes to the jury the defendant MUST move for judgment…

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