September 2006

Do Software Patents Discourage Innovation?

by Lee Gesmer on September 21, 2006

Patents. Over the last 20 years the conventional wisdom has been that patents are inimical to software innovation in the U.S. Many prominent software developers and industry luminaries have argued this position.

Here is a link to a paper by Professor Robert Merges of the University of California Law School at Berkeley arguing the contrary view: that software patents have had a negligible impact, if any, on innovation in the industry. Here is the abstract:

In the late 1980s and early 1990s, people in the software industry often said that the coming of patents would spell doom, particularly for small companies. The entry of new firms – the seabed of growth in the industry – would dry up, and only large, bureaucratic and decidedly non-innovative firms would remain. This paper concludes that these predictions were wrong. New firm entry remains robust, despite the presence of patents (and, in some cases, perhaps because of them).

Read the full article

Low Brow Lawyer Gossip!

Yes, it astounds me that there can even be such a thing. When I graduated from law school all those many years ago, if you had been able to explain to me what the Internet would be, and what a blog would be, and told me that someday there would be a blog devoted solely to lawyer gossip (things like what law students have been selected as Supreme Court clerks, lawyer weddings, lawyer sex, lawyers coming out of the closet, summer associate faux pas, interview faux pas, judges’ vacation haunts, rich lawyers, ugly lawyers, obnoxious lawyers, and more, seemingly ad infinitum … ), I would have thought you were barking, drooling mad.

Sadly, I would have been wrong. There is such a thing, at a blog called Above The Law, A Legal Tabloid. Jump at your own risk.… Read the full article

The Sum of All Knowledge

by Lee Gesmer on September 19, 2006

Technology. Do you know what Wikipedia is? Did you know that this open source encyclopedia covers 1,391,807 topics (in the English version, as of this writing)? That it may be (or soon become) the greatest collaborative knowledge gathering effort the world has ever known? That it is the 17th most popular site on the Internet, receiving 14,000 hits per second? That you can find a topic in Wikipedia by simply entering “wiki” at the end of a Google search? (e.g., Lost TV show wiki)?

If you’re interested in understanding the origins, goals and inner-workings of this astonishing phenomenon, I recommend these two articles from The Atlantic and The New Yorker, respectively:

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Litigation. Lawyers love to argue about attorney-client privilege. What could be juicier than to find out what your adversary in litigation said to his or her attorney, believing it to be covered by this privilege, a privilege that is so sacrosanct that the Supreme Court has ruled that it extends beyond the grave?

Nevertheless, the attorney-client privilege can easily be lost or waived. For example, if the communication is revealed to a non-attorney third party, it risks waiver.

The world of computer technology and email has given rise to new grist for the waiver doctrine. Most companies inform their employees (in employee manuals, for example) that communications utilizing the company’s internal email system are open to review and examination by the employer. According, it is established law that an employee who uses her employer’s email system to communicate with an attorney has waived the privilege. Most lawyers, aware of this, instruct their clients who wish to communicate from work to use an Internet-based email system, such as Google’s Gmail or Yahoo Mail.… Read the full article