November 2008

Steve Chow at Burns & Levinson has sent me the legislation attached below, which the Massachusetts Uniform Law Commission, of which he is a member, filed with the Massachusetts House of Representatives on November 5, 2008.

This is the sixth attempt since 1995 to get the 1985 Uniform Trade Secret Act (UTSA) enacted in Massachusetts; although there was no opposition, the furthest that a prior attempt progressed was to third reading in the House. The uniform act has been adopted by 45 states and the District of Columbia. Apart from Massachusetts, the only other states that have not adopted the act are New York, New Jersey, Texas and Wyoming.

Steve Chow advises me that, because of some interest from the Joint Committee on Economic Development and Emerging Technologies and the Associated Industries of Massachusetts, there is a better than even chance that the legislation will be adopted in Massachusetts before the end of this legislative session, which ends in July 2010.… Read the full article

George Gilder on "The Coming Creativity Boom"

by Lee Gesmer on November 5, 2008

OK, I know that George Gilder is a very controversial guy, and that he lost a lot of money for his investors (and himself) in the late ’90s and early 2000s. So, he’s a lousy investor. But, that doesn’t detract from the fact that he can speak and write about the future of technology in ways that can make your head spin and leave you gasping for breath (and, if you’re not very careful, calling your stockbroker to increase your margin account).

His article in the November 10, 2008 issue of Forbes is typical Gilder – thought provoking, inspirational, optimistic and (I hope) right:

The real source of all growth is human ingenuity and entrepreneurship, which often thrive in the worst of times–and are always surprising.

Knowledge is about the past; entrepreneurship is about the future. In a crisis the world of expertise pulls the global economy ever deeper into the past, where accountant-economists ruminate on the labyrinthine statistics of leviathan trade gaps, tides of debt and deficits, political bailouts and rebates, regulatory clamps and controls, all propping up the past in the name of progress.

Read the full article

The Federal government has two antitrust enforcement authorities – the Antitrust Division of the Department of Justice and the Federal Trade Commission. These two agencies have partially overlapping enforcement authority over civil cases, and they often collaborate in setting antitrust policy. Although the federal courts are the final arbiters of the federal antitrust laws (which are statutory, and therefore originate with Congress), the business community relies heavily on the Justice Department and the FTC to provide their views on the law. Accordingly, from time-to-time the Justice Department and FTC issue detailed joint guidelines. (Examples include: Collaborations Among Competitors, 2000; Antitrust and IP Rights, 2007; and Antitrust Licensing Guidelines, 1995).

The DOJ/FTC joint reports are a big deal – they often include lengthy hearings, prepared testimony and position papers from interested parties, proposed guidelines, revised guidelines, and so on, until (drum role ….) the big day when the final report is issued.… Read the full article

In re Bilski – The Pendulum Swings

by Lee Gesmer on November 2, 2008

Those who take an interest in patents — inventors, litigants, lawyers, judges, pundits, trolls, and on and on — have been waiting with bated breath for the CAFC’s decision in In re Bilski. Is it a game changer for much-maligned “business method” patents? How far does it go in narrowing the patentability of business method processes? How will the courts apply it? How does it affect pending or contemplated cases? Is the Supreme Court likely to accept an appeal?

It seems that almost every patent lawyer in the country feels compelled to write about this decision. Tens of thousands of words will be written. Indeed, I would swear that some lawyers pulled all-nighters on Thursday night so they would be the first to write about this case by Friday morning, and get a jump on the competition.

To sort through the noise, my recommendation is that you go to the Patently-O blog.… Read the full article