May 2008

The Amazing Nathan Myhrvold

by Lee Gesmer on 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.


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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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.… Read the full article

A Postcript on EDtTx

by Lee Gesmer on 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.… Read the full article

Popping A Bubble in Texas

by Lee Gesmer on 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.… Read the full article