September 2008

. . . the Supreme Court can only decide a couple of patent cases even in a banner year. And, many important patent issues may be so obscure as to discourage its generalist judges from addressing them. The rest, necessarily, are left to us. We have the expertise and the will to resolve doctrinal problems. What we lack is mainly the opportunity. Why for example did it take a full decade to revisit State Street? Because no one asked us to until recently. The same can be said of the central issue decided in KSR. It was never simply presented to us in a petition for en banc treatment. Oddly, we receive over a hundred a year. Yet few raise such fundamental issues as eligible subject matter under §101, or the Teaching-Suggestion-Motivation test, or the proper methodology for assessing requests for the permanent injunction, or barring them, future damages.

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The department of consumer affairs and business regulation shall adopt regulations relative to any person that owns or licenses personal information about a resident of the commonwealth. Such regulations shall be designed to safeguard the personal information of residents of the commonwealth …

M.G.L. Chapter 93H: Section 2

Here is a link to the Executive Order signed by Governor Patrick on September 19, 2008.


The Executive Order applies to State agencies; the regulations apply to the private sector.

The regulations are of particular interest. They require private sector entities who keep personal information about individuals to meet “minimum” security standards for paper and electronic records. They apply broadly to “persons who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts”. They require the creation of a “written information security program” which must be “reasonably consistent with industry standards.” The most minimal requirements of such a program are (to my eye) quite extensive (and burdensome).… Read the full article

Here is the text of new Federal Rule of Evidence 502, eliminating waiver resulting from inadvertent disclosures of attorney-client privileged or work-product materials in federal litigation:

Federal Rule of Evidence 502
(signed into law September 19, 2008)

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure made in a federal proceeding or to a federal office or agency; scope of a waiver. —

When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent disclosure.

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The Laugh Test

by Lee Gesmer on September 22, 2008

[Update: decision denying Blockshopper’s Motion to Dismiss]

[Update: Jones Days’ Opposition to Blockshopper’s Motion to Dismiss]

Blockshopper.com is one of many small web sites that have sprung up to follow local residential real estate markets. So far, the site highlights purchases in upscale neighborhoods in Chicago, St. Louis, South Florida and Las Vegas. The site identifies purchasers by name, street address of the property and the price paid. Of course, this information is available in local real estate publications (like Banker & Tradesman here in Boston) or at the local registry of deeds. Blockshopper also performs an Internet search on the person, and based on what it finds identifies the purchaser’s job title and employer. When it can, the site pulls a photo of the person from somewhere on the Internet (like the purchaser’s company site), and pastes it into the item. If the home purchaser has an online bio, the site will link to it.… Read the full article