April 2009

Expect a "Perilous Future for Most Business Method Patents," Saith Judge Marylin Patel

Judge Marylin Hall Patel, a federal district judge in the North District of California (San Francisco/Silicon Valley) since 1980 and Chief Judge in the District from 1997 – 2004, is a well known federal judge when it comes to intellectual property matters. For example, Judge Patel decided the Grokster case at the district court level, which eventually was affirmed by the Supreme Court, and she has decided many patent cases.  When she speaks on IP matters, one would do well to listen

Therefore, her March 26, 2009 decision in Cybersource v. Retail Decisions is of no small significance. In this case Judge Patel applied In re Bilski to invalidate two business method patent claims in U.S. Patent No. 6,029,154, titled “Method and system for detecting fraud in a credit card transaction over the Internet.” The CAFC’s decision in Bilski requires that a process either be tied to a machine or apparatus or involve a transformation, and Judge Patel held that the ‘154 patent failed this “machine-or-transformation” test.… Read the full article

In Search of the Perfect Search

by Lee Gesmer on April 3, 2009

The issues associated with Electronically Discoverable Information (ESI) hang over the legal profession like the threat of Katrina II hangs over New Orleans. Lets face it: most judges and attorneys would do anything to avoid confronting the complexities of ESI. However, judges are good at forcing lawyers to face up to bad stuff, so it’s impossible to avoid the subject.

Of course, in a huge case involving large sums of money it’s no problem hiring a consulting firm that does all the work for the lawyers, and guides them every step of the way. However, that’s only 1 case in 100, if that. What about all the “little cases,” where expensive consultants are not an option?

The answer, not surprisingly, is the “keyword search.” After all, if we can search a trillion documents using Google, why not use key word search to find documents relevant to litigation.

Sadly, key word search is not very reliable.… Read the full article

Who Watches the Watchmen?

by Lee Gesmer on April 2, 2009

Who Watches the Watchmen?

“How does the court have confidence that the public integrity section has public integrity?”
Judge Emmett Sullivan, during the trial of former Senator Ted Stevens

 

Prosecutor: I already got no proof how the victim got hold of that heroin. Now you’re saying I can’t put Hodgins on the stand? Why?
FBI Agent: You don’t wanna know the answer to that.
Forensic Investigator: Why doesn’t she wanna know?
Prosecutor: As the prosecutor in this case, I’m obliged to share everything I know with the defense.
Forensic Investigator: [starts to explain…]
Prosecutor: Whoa! Goodnight!

From TV Show “Bones”

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Prosecutors have a legal duty to provide criminal defendants with exculpatory evidence. Every criminal prosecutor knows this – it’s probably Rule No.1 for prosecutors: “YOU MUST GIVE DEFENDANT EXCULPATORY EVIDENCE.” This has been a constitutional right since the 1963 Supreme Court decision in Brady v. Maryland.Read the full article

A Blog Symposium, Hosted by Truth on the Market

Take a book: Innovation for the 21st Century, Harnessing the Power of Intellectual Property and Antitrust Law, by Michael A. Carrier.  Invite several IP and antitrust luminaries to comment on the book.  The result: a  “Blog Symposium” on the book organized by Truth on the Market.  The Symposium is described as follows:

The format will be as follows.Today we’ll have posts from Crane, Manne, Weiser, and Wright on aspects of Innovation for the 21st Century which focus on competition policy.Tomorrow, Professors Frischmann, Kieff, and Crouch will focus on the intellectual property related proposals.Professor Carrier will have the opportunity to respond to the posts Tuesday evening or Wednesday.And of course, we hope that both participants and our normal group of high quality commentators will find some time to mix it up in the comments.The participants have been given broad leeway to discuss general themes in Carrier’s work or hone in on specific policy proposals.

Read the full article