by Lee Gesmer | Sep 21, 2006 | Patents, Technology
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). Successful incumbent firms have adjusted to the advent of patents by learning to put a reasonable amount of effort into the acquisition of patents and the building of patent portfolios. Patent data on incumbent firms shows that several well-accepted measures of “patent effort” correlate closely with indicators of market success such as revenue and employee growth. Whatever the effect of patents on the software industry, this paper concludes, they have not killed it.
Here is a link to the paper.
by Lee Gesmer | Sep 19, 2006 | Miscellaneous
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.
by Lee Gesmer | Sep 19, 2006 | Technology
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:
by Lee Gesmer | Sep 18, 2006 | Business Lit. Session, Litigation
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. The theory is that since the employer doesn’t have access to these emails and the emails are protected by a user name and password, they retain their privilege.
This assumption was challenged in a recent case before Judge Gants, sitting in the Massachusetts Business Litigation Session. In this case, NERA v. Evans, the former employer argued that since, unbeknownst to the former employee, the computer used by the employee (who was now suing the company) stored screen shots of the emails, which were then technically accessible to the employer, the privilege had been waived. Judge Gants rejected this argument, but he did posit a “test” that, until something better comes along, should be viewed as highly persuasive precedent, at least in Massachusetts. Judge Gants stated:
The bottom line is that if an employer wishes to read an employee’s attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company’s Intranet, the employer must plainly communicate to the employee that:
1. All such emails are stored on the hard disk of the company’s computer in a “screen shot” temporary file; and
2. the company expressly reserves the right to retrieve those temporary files and read them.
Frankly, I don’t expect many companies to adopt such a policy, but at least there is some guidance on this issue from a well-respected Massachusetts Superior Court judge.
by Lee Gesmer | Sep 15, 2006 | Litigation
Litigation. In Pease v. Tyco Electronics Corp., decided on September 7, 2006, Massachusetts Federal District Court Judge Ponsor dismissed wrongful termination claims by a former employee of Tyco, based on evidence that the employee had lied to Tyco regarding his education (an MBA), and then modified and destroyed files on his computer to cover up his actions during the litigation. Among other things, this case shows how effective forensic examination of a computer can be in litigation, as well as the fact that federal judges simply won’t tolerate this kind of conduct.
Of course, the case also shows that when an employee brings a suit like this he had better make sure that he has no skeletons in the closet.
