Intellectual Property Alternative Dispute Resolution Lawyer & Attorney : IP ADR : The IP ADR Blog

In light of the FBI's arrest of local blogger and alleged illegal streamer of copyrighted Guns and Roses music, Kevin Cogill, I thought it would be useful to the blogging community to direct it to tips on dealing with the FBI below:  

If an Agent Knocks:  Federal Investigators and Your Rights from the Center for Constitutional Rights. 

The Constitution.  That document containing the rights Presidents swear to protect and defend. That littletechnicality.  The Constitution.

Did I say Constitutional Rights?

Here's are the categories of advice.  Click on the Agent Knocks link above to connect to any of them.   

1. What is Political Intelligence?
2. Do I have to talk to the FBI?
3. Under what laws do the agents operate?
4. What federal agencies are likely to be interested in a citizen's political activities and affiliations?
5. How does the FBI learn about citizens and organizations?
6. What if I suspect surveillance?
7. How should I respond to threatening letters or calls?
8. What rights do I have?
9. What should I do if police, FBI, or other agents appear with an arrest or search warrant?
10. What should I do if agents come to question me?
11. If I don't cooperate, doesn't it look like I have something to hide?
12. Are there any circumstances under which it is advisable to cooperate with an FBI investigation?
13. How can grand juries make people go to jail?
14. Is there any way to prevent grand jury witnesses from going to jail?
15. What can lawyers do?
 

• Print
• Comments
• Trackbacks (1)

Blogger arrested, accused of posting 9 unreleased Guns N' Roses songs

Those of you old enough to remember Woodstock in "real time" or to have attended yourself, you'll no doubt recall the magic moment when the concert producers decided to tear down the fences and make the concert free.

Then they made a lot of money on the documentary.

I suppose they could have called the local, state or national authorities to arrest the trespassers, but would that have made good business sense?  I don't think so.  When the culture is changing faster than the law, it makes far better business sense to co-opt the movement than to arrest it.   

Still, some people just don't get it.  

I'm linking you to the Los Angeles Times story on the arrest of a local blogger for streaming Guns 'N Roses.  Since I'm printing the Times article in its entirety, you may consider this a teeny tiny act of civil disobedience in the tradition of Thoreau (his Civil Disobedience here).    

But listen, guys.  Send the firemen instead of the FBI.  They're always much better looking.  

Need I say there's got to be bigger story here?  Like, selective prosecution?  Any criminal lawyer readers out there.

Below, the L.A. Times story.  Complete.

("Yes, Officer.  I did pay for the cartoon over at istockphoto.com.  I've got the receipt here somewhere")
 

Kevin Cogill, 27, of Culver City, who admitted to allowing public access to the songs on the Antiquiet blog, was arrested today on suspicion of violating federal copyright laws.

By Scott Glover, Los Angeles Times Staff Writer 

A man accused of posting nine previously unreleased songs by the rock band Guns N' Roses on a website where they could be accessed by the public was arrested at his home early today on suspicion of violating federal copyright laws, authorities said.

Kevin Cogill, 27, is accused of posting the songs, which were being prepared for commercial release, on the Internet blog Antiquiet in June, according to an arrest affidavit. The site received so much traffic after the songs were posted that it crashed, the affidavit states.

Cogill admitted to posting the songs when he was questioned by an FBI agent, according to the affidavit. He was arrested at his home in Culver City this morning and is expected to appear in U.S. District Court in Los Angeles later today, said Assistant U.S. Atty. Craig Missakian.

I'll be very interested to see what the U.S. District Court Judge does with this.  We have a very serious federal court bench here who do not like playing games with their extremely limited and extraordinarily valuable time.

For a genuine legal analysis see Citizen Media Law Project's coverage for which I'm providing a link and an excerpt:  

Update: Cogill has in fact been charged under 17 U.S.C. § 506(a)(1)(C), which implements the copyright amendments included in the Family Entertainment and Copyright Act of 2005. I've been able to locate the criminal complaint filed against him, and it charges that he "knowingly and willfully distributed a copyrighted work being prepared for commercial distribution, namely nine previously unreleased songs by the band Guns n' Roses, by making the songs available on a computer network accessible to members of the public."

(You can follow further developments in the case by going to our legal threats database entry, United States v. Cogill.)

Speaking of Woodstock . . . Jimi Hendrix' Star Spangled Banner below.

• Print
• Comments
• Trackbacks (2)

Thanks, first, to Google Reader for offering me feeds to blogs it knows I'd like but don't have (like Peter Zura's 271 Patent Blog) and then making it easy for me to add them to my Reader, which I can now read on my iPhone thanks to Apple.  Really.  I'm grateful (but could someone now please replace Outlook with a program that doesn't move at a glacial pace?)

On to the real purpose of this post with a hat tip to Peter Zura's 271 Patent Blog for this item out of Denver.   

Lofgren, D-Calif., told a crowd in Denver on Tuesday that it is crucial for Congress to pass legislation to update the U.S. patent system next year -- . . . 

Lofgren, who represents the Bay Area and is a key member of the House Judiciary Committee, said a new effort should begin with "things we know we can agree on." A proposal that would curb judicial "venue-shopping" for favorable courts is critical as is language to address patent abuses, she said. "How do you legally set a framework that prevents abuses and allows for a vigorous system that protects intellectual property?" Lofgren asked aloud. "It's not easy to come up with solutions."
 

Is talking about the things we agree upon first always the best negotiation tactic?  It's certainly helpful when you're brainstorming solutions to intractable disputes -- here -- "set[ting] up a framework that prevents abuses and . . . . a vigorous system that protects intellectual property."

When the debate is particularly rancorous, as is often the case in patent infringement litigation, dove-tailing the parties' differences -- an issue upon which they invariably agree -- is one of the best ways to locate and maximize value to both parties.  Lax and Sebenius in their must-read 3-D Negotiation remind us that "complementary differences -- pairs of high benefit-low cost items" in which one side values the point highly and the other can provide it at relatively low cost is a good place to begin.

Small talk at the commencement of negotiations -- which itself increases the likelihood of a deal -- is one way the parties can locate these high-benefit-low cost items, particularly where they haven't identified them before the negotiation begins.  What kinds of items are easily dove-tailed?  Lax and Sebenius provide us with the categories as follows:

Dovetailing Differences in Forecasts or Beliefs about the Future.

Because the settlement of patent infringement litigation invariably requires one party (or both!) to license the other, the parties' differing expectations of market success or likely technological changes that could make the IP less valuable or even obsolete, are a good place to look for the high benefit-low cost synergies mentioned by Lax and Sebenius. 

If party A firmly believes that sales are going to increase over the next five years and party B is "certain" that they will decrease, their differences in future projections can be dove-tailed by a graduated schedule of fees.  Party B -- who believes there will be minimal to no sales in year five -- can offer higher royalties in year 5+ and lesser in the earlier years.  The attempt to dove-tail these differences is also a good way to call your bargaining partner's bluff.  You'd be amazed how quickly  certainty drains from party predictions when they're asked to put their own money on the gamble.

Dovetailing Differences in Attitudes Toward Risk

I recently negotiated the settlement of a patent infringement case in which Party A and B were considering a merger of the two companies as a means of settling their disputes.  Both parties held multiple patents, a few of which were being litigated in other proceedings. Both parties' valuation of the risk of loss if the event of adverse judgments was approximately the same, i.e., there were no material differences in the parties' forecasts about the future outcome of the lawsuits.

The parties did, however, have substantially different  attitudes toward risk and differing abilities to sustain losses.  Party A, by far the richer player, was much less averse to the outside risks of the pending litigations.  Party B was concerned that the the value of the merged company -- his only real asset -- could be destroyed in the event all of the lawsuits were successful.  The parties had reached impasse on the value of B's shares and of the merged enterprise primarily because of these uncertainties.  Because Party A could weather the outside risk, it agreed to assume it (wagering not only on his ability to satisfy potential judgments but his insurance carrier's willingness to settle existing disputes over coverage).  When these uncertainties were removed from B's plate, he was willing to assign far more value to the merged company, enabling the detailed negotiations for the merger to commence.  /*

For more hypothetical examples, see the following 3-D Negotiation Risk Attitude Dovetailing sub-sections -- Selling a Restaurant; A Joint Venture of Opposites, A Public-Private Real Estate Deal and Assessment Ambiguities.

Dovetailing Differences in Attitudes Toward Time

This category of dovetailing is very like my first hypothetical.  Here, however, the differences in expectations (and desires)  concern the mere passage of time coupled with party shares in a joint venture.  Here, Party A is impatient for immediate returns on his investment, which he needs to fund a new enterprise.  Party B, who is older than A and looking forward to retirement, is more interested in creating a stream of income in the future.

In this scenario, Lax and Sebenius suggest a structure in which Party A earns a smaller share of the early profits and Party B earns a larger share of the later profits.

All of these potential solutions to intractable litigation involve high level financial planning and business forecasting that are far beyond the scope of most "pure money" disputes.  There are few patent infringement disputes, however, that couldn't be more easily resolved by dovetailing party differences.  The law firm's settlement team should be devoting as much time, thought and energy to negotiation planning as its litigation and trial team is devoting to just winning the darn thing.   

______________________

*/   Facts greatly simplified to protect the confidentiality of the mediation and to avoid discussion of unnecessarily complex financial transactions.

• Print
• Comments
• Trackbacks

Dialogues on Freedom - Volunteers needed! 

Commenorate 9/11 by engaging high students in a discussion about the tensions between liberty and security in the wake of the attacks on the World Trade Center.  These kids -- 15 through 18 -- were 8 to 11 years old a the time of the attacks.  It has defined the world they live in.  Help them see it from a different viewpoint. 

I have participated in this program for several years now and it has become one of the highlights of my year.  You can render this important public service with a half-day of training and a half-day in our local public schools.  Below, the description of the program by LACBA.

In response to the September 11 terrorist attacks, Justice Anthony Kennedy created a program where participating lawyers and judges lead discussions in public high schools, discussing the concepts of freedom, law and justice. The dialogues are not lectures. They are focused talks which challenge students to think and talk about their own perspectives and experiences regarding freedom and the state of our nation’s security.

Since its inception in 2002, this annual program, sponsored by the Los Angeles County Bar Association and the Los Angeles Superior Court in cooperation with the Los Angeles Unified School District, has become a day of remembrance and tribute, and an opportunity for lawyers and judges to impact high school students in our community.

Today’s students need input and guidance from legal professionals. Not only are these future decision-makers in need of guided discussions regarding the importance of the events since 2001, but they also need first-hand exposure to the legal profession. The Diversity Pipeline Summit held by LACBA in June 2007, revealed the enormous amount of young people interested in law and legal careers. Therefore, now, more than ever, Dialogues on Freedom is one of the best ways for students to be exposed to future careers in the law.

Please join LACBA's Dialogues on Freedom to help lead a discussion at a Los Angeles-area high school on September 11, 2008. Volunteer teams of lawyers and judges will conduct 50-minute sessions on September 11 at various Los Angeles County High Schools. Last year, teams received assignments at the following schools: Belmont, Chatsworth, Dorsey, Eagle Rock, Fremont, Hollywood, Jefferson, Lincoln, Manual Arts, Monroe, North Hollywood, Roosevelt, University, Venice and Wilson High Schools.

Trainings for judges and lawyers who wish to participate in this year’s dialogues will take place on Thursday, September 4, 5:30-6:30 p.m. at Stanley Mosk Courthouse, 111 N. Hill St., Room 222, in downtown Los Angeles or alternatively on Saturday, September 6, 10:00-11:00 a.m. at Venice High School, 13000 Venice Blvd.

If you are interested in participating as a volunteer in the Dialogues on Freedom program, please sign-up online or e-mail the following information—your name, firm/office name, firm/office address, office phone, e-mail address, and the number of 50-minute class sessions for which you can stay at a school (AM or PM)—to freedom@lacba.org as soon s possible.

Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it. ~Thomas Paine

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. ~Benjamin Franklin, Historical Review of Pennsylvania, 1759  

I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. ~James Madison, speech, Virginia Convention, 1788

Liberty means responsibility. That is why most men dread it. ~George Bernard Shaw, Man and Superman, "Maxims: Liberty and Equality," 1905

• Print
• Comments
• Trackbacks

I recently posed the following question to the IP ADR Blog's readers and to my LinkedIn network:  

Which patent infringement litigation parties (if any) benefit from the inefficiencies in the process? 

As usual, my LinkedIn Network delivers.  

The really terrific, thoughtful answers to the question below. 

Thanks to each one who answered.  I'll be following this up with an article or lengthy post soon.

Unless the litigants are disproportional in size there are no winners from these inefficiencies. One can even say that the biggest losers in this process are not even a party to the case. I'm referring to the consumer or the true bearer of the inefficiencies and related cost.

The speed of innovation, the product development, and the marketing efforts will continue to evolve into quicker and more efficient cycles. At some point the legal process will be forced to adapt. A good example of this is the Federal Rules of Civil Procedure on Electronic Discovery.

Change is good, and depending on how business is conducted, it may also be a necessity.

Francis Bueb CPA, CITP of Ueltzen & Co. 

Unless a preliminary injunction is granted, the defendant in a patent infringement case will likely benefit from a longer and less efficient process. Defendants usually want the plaintiff to have to keep shelling out money to keep the litigation furnace burning.

On the other hand, sometimes a plaintiff who is granted a preliminary injunction just wants to keep the defendant out of the market as long as possible. In such a case, the parties are likely competitors and the longer the defendant's competing product is off market the better for that plaintiff. Sometimes, even a litigation loss is a win for such a plaintiff if, say, the plaintiff's product is replaced by a newer version that is accepted by the consumers before the end of the litigation over the product that is replaced. 

Ryan H. Flax, IP Attorney, Dickstein Shapiro, LLP 

The one with more money.

Ed Green, Patent Lawyer, Coats + Bennett
 

The sad truth is that only the defense attorneys benefit from inefficiencies in litigation because they are charging by the hour. As for the litigants, the Plaintiff usually wants a trial as soon as possible. So, inefficiencies and delay benefit the Defendant, i.e. the accused infringer.

Scott C. Kinsel, Partner, Moore Landrey LLP

In fact the Plaintiff would be at lose because he/she may not get justice immediately. There is a proverb, “justice delayed, justice denied” and if the process is inefficient there would be delay and in such a situation the Plaintiff may not get quick justice. Also, if the plaintiff(s) do not succeed in getting an injunction order against the defendant(s), specifically in case of IPR matters, the Plaintiff may not be able to enforce his/her monopoly IP Right granted by the concerned IPR Office.

Ram Prakash Yadav, Manager - IPR at ACME Tele Power Ltd. Gurgaon

I'd agree with Ed on this one, deeper pockets benefit from inefficiencies.

Inefficiencies result in increased expenses. The increased expenses become a point of leverage in the dispute. I have had clients avoid exercising some of their rights in litigation because exercising their rights would have delayed the trial, which would have added expenses.

Generally, the Defendant has the deeper pockets - which I would suggest is part of the reason others have suggested the Defendant benefits.

Additionally, you do not have the number of frivolous law suits in patent litigation that you have in other civil litigation because it is so expensive to litigate patent infringement. Most patent owners cannot afford to file a complaint unless they are absolutely convinced they have a winning case.

The big loser in the process is the independent inventor or small company, who do not seek patent protection for their new ideas because they do not believe (perhaps correctly) that they will ever be able to enforce their patent, so why seek it. Ultimately, any novel products they develop that have a market will be stolen without any need for litigation.

Todd Sullivan, Managing Partner, Hayes Soloway, P.C.

Apart form the lawyers, I would say that alternative dispute arbitrators (such as the asker of this question) benefit - the inefficiencies of the legal process will drive more on both sides to use these alternative solutions. 

Between the two sides, I think either could benefit, it depends on circumstance - sometimes the patent holder benefits as a potential infringer may continue infringing while awaiting a resolution, and end up paying more when the case is settled - sometimes the infringer will benefit as they can continue profiting from their work while the case is argued, whereas if it was sorted earlier they might effectively be stopped in their tracks - I can easily see a case where both the above could be true.

Finally, the customers may benefit. New products may get developed which would never get launched if their weren't the delays and uncertainties that exist in the system.

Bernard Gore, Facilitation, Project & Programme Management

I don't think there's a simple answer to this, I'm sorry.

It depends on the country - some countries allow an ex parte interim injunction to be granted with no ability for the defendant to add evidence in an appeal. (Highly efficient or inefficient, depending on your point of view.) Either way, the inability to add evidence on appeal is inefficent, if justice is your aim.

It depends on the industry - in the pharmaceutical context, say in the US - the whole litigation procedure is skewed by the Hatch-Waxman regime. So here it even depends on the context of the particular dispute. So, if the 30 month stay is rapidly approaching with no prospect of a trial, then then innovator company will benefit from inefficiencies because they will keep the generic off the market longer, or have a good shot at an injunction in the mean time (depending, again on the patent, etc).

There are others, but this gives the general gist.

Duncan Bucknell, IP Strategist, Lawyer & Patent Attorney
 

• Print
• Comments
• Trackbacks

Lowering the Bar citing California Punitive Damages provides this comment in response to the return of Exxon to the Ninth Circuit after two decades of litigation.

In this artist's conception, the last two human attorneys finally realize they are still on Earth, that the Exxon case has still not been fully resolved, and that they will have to ask for yet another continuance because they aren't dressed for court.

• Print
• Comments
• Trackbacks

Here in California, there's no stronger rule of confidentiality than that applied to a mediation.  It cannot be impliedly waived (Simmons v. Ghaderi) like most privileges, including the near-sacred attorney-client privilege.  You cannot be estopped from relying upon it.  (Eisendrath).  And if you want your mediated settlement agreement enforced, you must strictly comply with the requirements of Evidence Code section 1123 (Fair v. Bahktiari).

Over at the Settle It Now Negotiation Blog, insurance policy-holder counsel Kirk Pasich questioned many recent interpretations of the mediation confidentiality statutues on the ground that they permit insurance carriers to use mediation proceedings to engage in acts of bad faith.  

"Why should a carrier get a license to act in bad faith in mediation," Pasich asked, adding,

Cases settled, and still settle, in mandatory settlement conferences without that same shield. I don't think a process should exist that encourages, rather than discourages, a party from acting in bad faith.

Why indeed?

If you do not understand the differences between settlement conferences and mediations, you are not alone.  My informal surveys indicate that litigators believe there's no difference whatsoever between the two and few mediators are able to distinguish them despite their training in the field. Nor have California's Courts been of any real assistance.

Though it may make no difference to counsel or the parties whether the process by which they seek to settle litigation is a mediation or a settlement conference, the  application of California's Rules of Evidence to mediations has significant potential economic consequences -- consequences so serious that mediator and litigator malpractice actions are surely looming on the horizon. 

The Parade of Mediation Horribles

What type of misbehavior can occur in a mediation?  Here are just a few examples:

1. one party can make a misrepresentation of material fact upon which the other relies in entering into a settlement agreement;
2. as Pasich notes, an insurance carrier can act in bad faith; 
3. one mediating party could tortiously interfere with a third-party's contract or prospective economic advantage;
4. the mediating parties can enter into a collusive settlement agreement, depriving the settling parties' co-defendants from learning facts necessary to challenge the settlement in a hearing to determine whether it was made in good faith (terminating the non-settling defendants' right to seek indemnity and contribution from the settling defendants)
5. even if all parties have expressed complete agreement during the mediation, which they then memorialize in a term sheet, absent strict compliance with the requirements of Evidence Code section 1123, no evidence probative of that agreement will be admissible in a California court.

If the mediating parties are engaged in a settlement conference, none of this potentially bad behavior would be protected.  If they're mediating, these proceedings can neither be the subject of discovery nor introduced as evidence. 

Given the adverse economic consequences that can flow from a mediation, California's courts have clarified the differences between the two procedures, right?

Not so much. 

In Jeld-Wen, the appellate court forbade trial courts from compelling parties to mediate (and precluded them from requiring payment to the mediator) because mediation is voluntary.  Raising form over substance, the Court concluded that trial courts could accomplish the goal of compelling settlement conferences (mediations in disguise) by appointing a referee-neutral under California Code of Civil Procedure section 639.

The differences between the two proceedings in substance?  You couldn't name them by reading the California Evidence Code.  It defines mediation as “a process in which a neutral person ...  facilitate[s] communication between the disputants to assist them in reaching a mutually acceptable agreement.”  Evidence Code section 1115(a)

So the Judge who chooses waterboarding as a means to settle the case isn't mediating.  Thanks for clearing that up.

When directly asked to distinguish between the two, our own Second District Court of Appeal  in Travelers Cas. and Sur. Co. v. Superior Court  declined.

We expressly decline to consider or clarify any differences that might exist between a mediation and voluntary settlement conference. ( Foxgate Homeowners' Assn. v. Bramalea California, Inc. . . . .)  Therefore, our decision should not be construed as holding that all voluntary settlement conferences are mediations which are subject to the rules concerning the conduct of mediation proceedings. 

Thanks a lot. 

But That's Not All, with Thottam We Throw In a Set of Ginzu Knives

The most recent wrinkle in mediation confidentiality comes to us from the Second District Court of Appeal in Estate of Thottam.  In Thottam, the Court held that an exception to an exclusion contained in a mediation confidentiality agreement expanded the scope of the confidentiality protections and then eliminated those protections when one party attempted to enforce the resulting settlement agreement.  The Court accomplished this sleight of hand by finding an express waiver of confidentiality in the exception to the expanded confidentiality protections and/or by supplementing the parties' non-compliant mediated settlement agreement with the terms of the Confidentiality Agreement itself.  If that's unclear, a full explanation of Thottam can be found here, here and here ("the big print giveth and the small print taketh away.").  

What to Do, What to Do

When the law is uncertain and the terrain dangerous, there are generally two paths for attorneys to follow:  (1)  follow the statutory requirements to the letter;  or (2) make up your own law (recognizing the dangers posed by the Thottam opinion).  

If you want your settlement discussions to be unburdened by strict mediation confidentiality provisions, you can ask the Court to appoint your "mediator" as a referee under section 639 and call the ensuing discussions a settlement conference.  Under those circumstances, your referee-assisted settlement discussions should be controlled only by Evidence Code section 1152. /**  To put both belt and suspenders on it, expressly agree that the negotiations are meant to be protected only by section 1152 and not by sections 1115 et seq.  And for heaven's sake don't use the word "mediation." 

If you want the protections of mediation confidentiality, all well and good.  But you must:

• memorialize your agreement in strict compliance with the requirements of Evidence Code section 1123(c) */
• make the accuracy of statements upon which your client relied conditions precedent to the enforcement of the agreement or, at a minimum, include them in WHEREAS clauses; and,  
• if you feel you must enter into a confidentiality agreement, limit its provisions to a recitation of the parties' intent to be bound by the requirements of Evidence Code section 1115 et seq. This should protect you against unanticipated interpretations of Confidentiality Agreement language that differs from the Code.  

Are we clear now?  Crystal!

___________________________

*/  A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied:

(a) The agreement provides that it is admissible or subject to disclosure, or words to that effect.
(b) The agreement provides that it is enforceable or binding or words to that effect.
(c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure.
(d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute.

Note that "words to that effect" pretty much means "those precise words" according to the Supreme Court's decison in Fair v. Bahktiari

**/  Section 1152, protecting communications during settlement negotiations is actually extremely limited, making "offer[s] to compromise and, statements made during an effort to negotiate a compromise of a disputes claim are inadmissible in evidence to prove liability.

• Print
• Comments
• Trackbacks (1)

This is a brief interview with Lawrence Lessig at this year's Personal Democracy Forum in New York City. Lessig answers questions about Change-Congress.org: an online, participatory tagging tool to encourage reform and transparency in the US Congress.

Click here for an audio interview with Lessig.

Here is the description of the tool from the Change-Congress.org web site:

Change Congress is a movement to build support for basic reform in how our government functions. Using our tools, both candidates and citizens can pledge their support for basic changes to reduce the distorting influence of money in Washington. Our community will link candidates committed to a reform with volunteers and contributors who support it.

Here's part of the interview where Lessig addresses internet issues and the upcoming election:

I think there's a fundamental decision that will be made in this Election about the philosophy that will guide the next generation of the internet. John McCain has signaled very clearly that he's going to continue the philosophy of what I refer to as a kind of Neanderthal philosophy that the government has no essential role in this essential infrastructure. And that means basically privatizing the infrastructure to the interest of a increasingly small number of infrastructure providers. And the Obama platform is fundamentally committed not to displacing private interest but to complimenting private interest with other interests which are also essential to the internet's future.

So social interest and public interest and cultural interest that compliment the commercial interest; and so I think that an Obama Administration will appoint people and drive for regulation that guarantees this wider range of objectives that's achieved by this infrastructure. So just like we didn't build the high--the national highway system simply to serve GM's cars or to serve Ford-cars but to build it to support a wide range of uses, some commercial, some non-commercial and the same thing with the electricity grid and the same thing with every single infrastructure we've built. That's the way I think we'll think about the internet--that it serves many different objectives--some private, some not, and the government needs to make sure it can serve all of them well.

• Print
• Comments
• Trackbacks

This lawsuit falls into the category of deterrence.  Because I live in a part of the world where "creatives" regularly refer to Disney as Maushwitz, I don't tend to think of it as the happiest place on earth.  

The question here, however, is business strategy and tactics; public image vs. strict compliance with one's demands.

Does Dumbo's mom act the bully in the marketplace to scare off all the other fleas?  Or does she cease and desist when her C&D letters obtain compliance in all but the most minute details?

Question open.  Excerpt from IP Infringement:  The Unwelcome Guest at Kiddie Parties below.  

With its $1 million trademark infringement lawsuit against the Florida couple who happened to use costumes looking like its trademarked Tigger and Eyeore characters for their party business, the company that bills Disneyland as the happiest place on earth is now possibly being perceived in some quarters as the usual big business bully. But does Disney have a point? Is the legal action justified? 

According to an article by David Wallace on disneyorama.com, David and Marisol Chaveco of Clermont, Florida, owners of a small party business, bought two costumes resembling Tigger and Eyeore from a Pervian company on eBay and promptly advertised their availability for parties on their Web site. Like other brand owners of children’s characters, Disney regularly searches the Internet for commercial use of their characters. And spotting this particular site, Disney, known for its tough approach on potential infringers of their trademarks, sent the couple three letters demanding seven items, including sending the costumes to Disney to be destroyed. 

While the Chavecos complied with six of the requests, instead of sending the costumes to Disney, they instead sent it back to the Peruvian company, pleading the need to recoups their $500 investment. Disney’s response was the $1 million lawsuit.

• Print
• Comments
• Trackbacks

Another Monday, another collection of great law blog posts courtesy of the Blawg Review.  This week, Blawg Review # 173 has been put into the capable hands of  DLA Piper IP litigator David Donoghue over at the Chicago IP Litigation Blog.

David's an old swimmer like me (well, not OLD like me, but a competitive swimmer like I used to be).  So he's organized his Blawg Review in a manner fitting for the week in which Michael Phelps won eight gold swimming medals. 

Eight.

Though I've grown weary of hearing about Phelps' ADHD, Blawg Review's celebration of his achievement is apt for a litigation blog since most of us are attention deficit disordered and oppositional-defiant as well -- the latter which turns out to be an actual diagnosis and not simply a description of teenagers -- like those kids who were hanging out in the slow lane of the West Hollywood public swimming pool today. (grrrrrrrrrrrrrrrr)  

But like all proud ADHD'ers this week, I digress.   

If you're a Blawg Review Virgin, here's the Executive Summary of the Carnival of Law Bloggers is:

Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.

If you'd like to submit one of your favorite posts to the next Blawg Review -- which will be hosted by the Texas Appellate Law Blog follow the submission instructions here.

If you're sufficiently Blawg Deranged to consider hosting the Blawg Review over at your Blog Shop, read the hosting instructions here.

Thanks David for giving me an excuse to put a little cheesecake in the IP ADR Blog.

• Print
• Comments
• Trackbacks

Now that my step-son is no longer my legal assistant (sniff) but an IP litigator with one of the best IP firms in the country (Irell & Manella) he's a source!!

Yesterday I asked him this question:  which patent infringement litigants benefit from the inefficiencies of the patent litigation process -- particularly those who are involved in protracted litigation like those lawsuits recently settled by Nokia and Qualcomm.

"Other than parties with frivolous lawsuits," I said, thinking that only marginal (but well-heeled) players might benefit from a system that was procedurally encrusted; unpredictable; costly; and, time consuming.

I've asked Adam to just allow the question to bounce around in his head for awhile as he litigates one of those infringement monsters that the Big Kids litigate.  Though he's new to the profession, it's often the young attorneys who see the process in unconventional and innovative ways because they haven't been doing the exact same thing for 25 years.  At least that's how it felt to me coming into the profession nearly 30 years ago.

Now I'm asking the same question of my readers -- how do the inefficiencies of patent infringment litigation benefit the parties?

To help prime the pump, I'm passing along without comment this article on the use of litigation to extract license monies from companies making products by one that doesn't as reported by the Communications and Technology Blog on Rates Technology Inc.   Excerpt below.

Rates Technologies has sued Nortel, Sharp Electronics and others. Apparently in 1998 the Wall Street Journal quoted Mr. Weinberger in an article titled "Payoff Pending," on December 7, 1998:

In the end, Mr. Marshall might have to sue some company for patent infringement -- and do so successfully -- before the industry takes his rights seriously. Mr. Marshall "had better be prepared to spend more than $1 million on prosecution, because that's what would be required," says Gerald J. Weinberger, president of Rates technology Inc., a Hauppauge, N.Y., company that says it has gone to court six times to prosecute patents in the telecommunications field. Mr. Weinberger says an aggressive stance in court is crucial to any enterprise based on patent licensing. "You don't get any licensees unless the parties become convinced that you will litigate," he says

Jerry Weinberger [of RTI told]  . . . . me that [h]e has agreements in place with 76 large companies such as Huawei Technologies, Lucent, and Cisco at this time. He says the larger companies understand how intellectual property rights work in the US while the smaller ones usually don't.

The following are statements from an e-mail from Jerry Weinburger:

When an infringer will not discuss their alleged patent infringement with RTI, there is little else that RTI can do except to pursue its remedies for the (willful) infringements in a court of competent jurisdiction. The remedies which RTI then seeks include damages, treble damages, a permanent injunction against further making, using, selling, offering for sale, and importing of the infringing products and services for the remaining lives of the Patents, payment of RTI's legal fees, and a product recall of all examples of those infringing items.

Although infringement is based upon a specific evaluation of a company's product(s) the '085 and '769 patents generally apply to hybrid cellphones, gateways, IP Phones, IP PBX's, edge routers, core routers, PC computers, ITSPs, and VoIP products, services and technologies, among several other telecommunications products, services and technologies.

Companies who decide to be covered under RTI Covenant Not Sue ("CNS") agreements are making a combined business and patent determination. The larger companies are easier to deal with, because they have many in house patent attorneys, and they do not feel that they are being roughed- they are making an informed business decision. Smaller companies tend to not respect the intellectual property of others. All makers, users, sellers, and importers are responsible for an infringement, and infringement is determined based upon direct, induced and contributory infringement; all allowing for interpretation of the Patents claims under the Doctrine of Equivalents. 

In total [RTI has] agreements in place with 700-800 companies and have litigated 25 times in 15 years.  . . . . Occasionally [says Weinberger] smaller companies want to negotiate and/or sue. Litigation he says costs about 2 million dollars.

 So how does it work? Generally his company contacts your company and shows you their patents. Your company then checks with its patent attorneys to see what infringes and what doesn't. If you want to be covered, you pay a one-time fee based on five tiers -- according to highest parent companies' worldwide sales... They do not deviate from these tiers. In exchange you get a covenant protecting you from a lawsuit.

• Print
• Comments
• Trackbacks

I've lived long enough to remember the Empire of the American Car Industry, 25 cent a gallon gas and 35 cent packs of cigarettes (I should have quit when prices reached the half dollar mark).

In the mid-80's Pulitzer Prize winner David Halberstam wrote a scorching indictment of the way the Detroit Auto Giants all but handed over the keys to their market dominance to the Japanese for whom the battle of Detroit and Toykyo looked more like taking candy from the hands of oblivious monster-car babies.  The Reckoning remains must-reading for anyone who does not wish to see Ozymandias /** written on the feet of a torso-less Statute of Liberty by the end of the 21st Century.  

I'm certain we're not the only civilization to cling to what we know; and, who, in the face of the almost certain market loss simply continue to do things the way we have always done them.

Which brings us to the recording industry, which has intimidated, bullied and sued its own market on its way into almost certain commercial oblivion now that capitalism has made possible that which Marxism failed to accomplish -- putting the means of production (and distribution) into the hands of the people. 

This morning, however, the New York Times Business section brings us Now Playing on YouTube:  Clips with Ads on the Side  -- the first indication we've seen of a Media Mogul Epiphany.  

After years of regarding pirated video on YouTube as a threat, some major media companies are having a change of heart, treating it instead as an advertising opportunity.

n the last few months, CBS, Universal Music, Lionsgate, Electronic Arts and other companies have stopped prodding YouTube to remove unauthorized clips of their movies, music videos and other content and started selling advertising against them.

CBS may be the most surprising new business partner in that its sister company, Viacom, is still pursuing its acrimonious billion-dollar copyright lawsuit against YouTube’s owner, Google.

So far, the money is minimal — ads appear on only a fraction of YouTube’s millions of videos — but the move suggests a possible thaw in the chilly standoff between the online video giant and media companies. Getting into the good graces of media entities is seen as critical to the future of YouTube, which has struggled to show appreciable revenue for video ads.

To read the full article, click here.

Quite the time for the members of the RIAA to rethink their market strategy in light of this development in its campaign to bully grandmothers, teenagers and disabled single mothers. 

From Slashdot:

 Phase I of the RIAA's misguided pursuit of an innocent, disabled Oregon woman, Atlantic v. Andersen, has finally drawn to a close, as the RIAA was forced to pay Ms. Andersen $107,951, representing the amount of her attorneys fee judgment plus interest. But as some have pointed out, reimbursement for legal fees doesn't compensate Ms. Andersen for the other damages she's sustained. And that's where Phase II comes in, Andersen v. Atlantic. There the shoe is on the other foot, and Tanya is one doing the hunting, as she pursues the record companies and their running dogs for malicious prosecution."

(empahsis mine)

Merrily, merrily, merrily, merrily life is but a dream . . . . . 

_________________________

**/  For non-Lit majors, Ozymandias by Percy Bysshe Shelley below.

I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shatter'd visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp'd on these lifeless things,
The hand that mock'd them and the heart that fed.
And on the pedestal these words appear:
"My name is Ozymandias, king of kings:
Look on my works, ye Mighty, and despair!"
Nothing beside remains: round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away

• Print
• Comments
• Trackbacks

Item:  China, one of the world's largest and most promising markets, has seen a 20 percent annual increase in patent application filings over the last fifteen years.

Item:  In 2007, the State Intellectual Property Office (SIPO) of China received 694,153 patent applications, an increase of 21.1 percent over the previous year

Item:  As of May 2008, China is currently third in the world for the generation of invention patents behind the United States and Japan.

Item:  If patent filings in China continue to grow at the current rate, the SIPO will overtake the USPTO (United States Patent and Trademark Office) by 2012.

Item:  More than four million patent applications were filed with SIPO from early 1985 to December 2007.

Item:  In 2005, 2,947 patent-related cases were filed in Chinese courts, representing an increase of 15.6 percent from 2004.

Item:  Patent-related lawsuits involving international companies such as Pfizer, Honda, Philips, and 3M have increased by 77.5 percent over the past year.

Get the picture?  Yes, we see.  To be among the leaders of the IP pack, companies with substantial patent portfolios need to know how to negotiate with the Chinese. 

Here are some resources: 

Negotiating in China:  Trust is Just the Beginning (h/t China Law Blog's post which adds the following advice to that provided in Trust):

Go into your negotiations prepared. Far too often my firm has had Western clients who insist on a particular term from their Chinese counterparts that no Chinese company can give or ever gives. If every manufacturer of widgets in China requires at least a 60 day turnaround time, you are wasting your own time and money by insisting on 10 days for you.

[Use] an already tested contract to gage the bona fides or good faith of a Chinese company. For instance, my firm has been using a non-disclosure agreement for so long in China that we can in large measure gage the legitimacy of Chinese manufacturers just by how they react to it. Legitimate Chinese companies always eventually agree to it (usually rather quickly, but sometimes with reasonable modifications). The illegitimate company refuses to sign, usually claiming such agreements are "never" signed in China or are "illegal."

Further negotiation advice from the China Law Blog

Negotiating in China
quoting an article of the same name from Harvard Business School Working Knowledge on the eight important elements underpinning "the Chinese negotiation style:"

Guanxi (Personal Connections)
While Americans put a premium on networking, information, and institutions, the Chinese place a premium on individuals social capital within their group of friends, relatives, and close associates.

Zhongjian Ren (The Intermediary)
Business deals for Americans in China don't have a chance without the zhongjian ren, the intermediary. In the United States, we tend to trust others until or unless we're given reason not to. In China, suspicion and distrust characterize all meetings with strangers.

Shehui Dengji (Social Status)
American-style, "just call me Mary" casualness does not play well in a country where the Confucian values of obedience and deference to one's superiors remain strong. The formality goes much deeper, however unfathomably so, to many Westerners.

Renji Hexie (Interpersonal Harmony)
The Chinese sayings, "A man without a smile should not open a shop." and "Sweet temper and friendliness produce money." speak volumes about the importance of harmonious relations between business partners.

Zhengti Guannian (Holistic Thinking)
The Chinese think in terms of the whole while Americans think sequentially and individualistically, breaking up complex negotiation tasks into a series of smaller issues: price, quantity, warranty, delivery, and so forth. Chinese negotiators tend to talk about those issues all at once, skipping among them, and, from the Americans' point of view, seemingly never settling anything.

Jiejian (Thrift)
China's long history of economic and political instability has taught its people to save their money, a practice known as jiejian. The focus on savings results, in business negotiations, in a lot of bargaining over price - usually through haggling. Chinese negotiators will pad their offers with more room to maneuver than most Americans are used to, and they will make concessions on price with great reluctance and only after lengthy discussions.

Mianzi ("Face" or Social Capital)
In Chinese business culture, a person's reputation and social standing rest on saving face. If Westerners cause the Chinese embarrassment or loss of composure, even unintentionally, it can be disastrous for business negotiations.

Chiku Nailao (Endurance, Relentlessness, or Eating Bitterness and Enduring Labor)
The Chinese are famous for their work ethic. But they take diligence one step further - to endurance. Where Americans place high value on talent as a key to success, the Chinese see chiku nailao as much more important and honorable.  

And if you're looking for a China-knowledgeable IP litigation team, you couldn't go wrong by hiring Irell & Manella and asking them to include on that team new IP attorney and Mandarin-fluent Adam Goldberg   (who does not  "share my DNA" but is my step-son).

And if you're doing business everywhere in the world, What About Clients says of When Cultures Collide:  Leading, Teamworking and Managing Across the Globe buy it, read it, refer to it and link to the blog.

Done. 

• Print
• Comments
• Trackbacks

Though the headline -- Cybersex Patent Case Leads to Bad Vibes Between Firm, Client -- may draw you in, it's the hyper-compounded conflicts of this litigation that will make your eyes roll.  You don't even need to understand who's who or what's what to get a good taste of the procedural nightmare playing out here:  

Calling the heated struggle with Piccionelli a conflict of interest that threatened the firm's loyalty to Internet Services, Keker filed a motion to withdraw from the case, saying it could no longer represent Internet Services under State Bar Rule 3-700(b), which addresses mandatory withdrawal. The Keker lawyers also argued that there had been a breakdown of the attorney-client relationship with Internet Services.

The company protested vehemently, hiring Timothy Dillon of San Diego's Dillon & Gerardi to handle the battle with Keker. Internet Services argued that there was neither a breakdown nor a real conflict of interest with Piccionelli. They accused Keker of trying to get off the case because it wasn't getting paid as expected.

Internet Services President Layne Britton suggests in a declaration that Keker had been hoping for some kind of contingency fee, and in a heavily redacted section about the firm's retainer agreement, Britton says the dismissal of all of Internet Services' claims left "no possibility that [Internet Services] will have a 'recovery' in this case."

The company's opposition to Keker's second motion to withdraw -- Judge Wilken denied the first -- was titled "[Keker's] Alleged Conflicts of Interest Are a Pretext For Its Inability to Receive Fees."

Keker prevailed in late June, when Wilken let the firm off the case. Citing Rule 3-700(b) in her brief order, she wrote that "a conflict of interest has arisen that requires" Keker to withdraw from Internet Services LLC v. Immersion Corp., 06-02009.

MOVING ON

Internet Services has a new law firm, Los Angeles' Spillane Shaeffer Aronoff Bandlow, ironing out remaining counterclaims by Immersion.

Outside the courtroom, no one seems to want to talk about the fractious teledildonics case. The new lawyers declined to comment, as did Internet Services' Britton and attorney Piccionelli. Keker's Durie did not return phone calls seeking comment and Kamber declined to comment.

Lemley wouldn't discuss the dispute with the client, but he said he thinks the courts got the patent and contract issue wrong. He also said he doesn't regret having taken it to start with, even if the subject matter may seem less refined than the Keker firm is used to.

"My view is, those sorts of patent issues are sort of interesting issues no matter who raises them," Lemley said.

Interesting?  This is one of those reports that would make any lawyer ask "What About the Clients?"

• Print
• Comments
• Trackbacks

I try not to stray into political waters, but the rule of law is what we honor here even when we're trying to settle cases instead of trying them.  So we're directing you to a Seattle Times article -- Personal test of principles -- about Perkins Coie IP attorneys Joe McMillan's and Harry Schneider's representation of the first alleged terrorist tried by American authorities.

Thanks guys for reminding us that the constitution should follow the flag even when it's off-shore at at Gitmo. 

(photos:  McMillian top; Schneider below)

Excerpt from Seattle Times article below:

It started as a lofty exercise in constitutional law. It ended with a hug.

That the bear-lock was laid on a starch-shirted Seattle corporate lawyer by none other than Osama bin Laden's former chauffeur — now convicted of supporting al-Qaida — sums up the surreal scene last week at the first American war-crimes trial since World War II.

"A wild experience," says Joe McMillan, who normally fights intellectual-property battles for Seattle's largest firm, Perkins Coie.

"Journey of a lifetime," echoes Harry Schneider, also a corporate litigator for Perkins, and the one who got the hug.

For four years, Schneider and McMillan have worked free of charge on behalf of a Yemeni man, Salim Hamdan, held since 2001 at the infamous Guantánamo Bay prison. Hamdan was the personal driver for terrorist mastermind bin Laden at the time of 9/11.

The story of how an elite Seattle law firm ended up among the first to challenge the trampling of the rights of detainees has been told before.

I continue to find it extraordinary that it wasn't only lefty ACLU types who took on this issue. Perkins Coie was the first, but now dozens of U.S. blue-chip firms represent Gitmo detainees, free of charge.

To do so, they have sued their own government in a time of war, all because they think it's un-American to deny anyone a fair trial. Even terrorists.

McMillan and Schneider saw their patriotism questioned a few times. But the work was initially far removed from any actual terrorists.

"We were thousands of miles from Guantánamo, arguing lofty principles before the Supreme Court," Schneider laughs. "Then they call us up and say, 'OK, now they're going to try him. Will you defend him? Are you still on board?' "

The lawyers said yes. The first time they met Hamdan, in his Gitmo cell with his leg shackled to the floor, Schneider admits he had doubts.

Continue reading here.

• Print
• Comments
• Trackbacks (1)

So how about reverse engineering the litigation?  What steps were actually necessary to achieve the settlement?  Was it something more than just wearing one another out?  Were early summary judgment or adjudication motions needed before the situation could be clearly sized up?  Were the legal issues or the business issues more prominent?  Where were the carrots and where were the sticks? 

     This lawsuit was filed five years ago.

Does someone in-house rigorously analyze the data in the wake of a settlement like this?  Because this is how most patent infringement lawsuits will end.  Cross-licenses.  Dismissals.  Licensing fees.  A rise in share price.

Was this a business problem burdened by legal issues or a legal problem burdening commercial interests?

Settlement details below from Veeco Settles Patent Suit with Asylum Research (h/t to the AmLaw Daily -- Settlement Reached in Teeny-Tiny Technology Case)

Veeco Instruments Inc. said Monday it has settled a patent infringement lawsuit that it filed in 2003 against Asylum Research Corp., a private company founded by former Veeco employees. Under the terms of the settlement, Asylum will pay Veeco an initial license fee as well as ongoing royalties under a five-year cross-license agreement of the two companies' patents. Financial terms were not disclosed. . . .

Veeco . . . makes metrology tools used to measure at the nanoscale level and process equipment tools used to create nanoscale devices. . . . . In the suit, Veeco alleged that Santa Barbara, Calif.-based Asylum's MFP-3D atomic force microscopes infringed on Veeco's patents.

Veeco's shares rose 47 cents, or 2.7 percent, to $17.75 in morning trading

• Print
• Comments
• Trackbacks

Get ready for a radical new idea.  One that:

• suggests the search for accuracy should trump a fully adversarial process;
• would wrest some control of the litigation and trial process from the hands of the attorneys; and into the care of the experts; and,
• just might focus IP litigants on the fact that they have a business problem burdened with justice issues rather than a legal problem that frustrates business operations.

(image from Wikimedia Commons)

Not surprisingly, a litigation process that threatens or promises these results does sound like litigation at all -- you know -- battle, war, fight.  Rather, it sounds like a summer spent in Big Sur among the redwoods, sitting on the edge of the Pacific Ocean with the parties, the judge, the jury and the attorneys in a . . . . HOT TUB!?!?!?!

My (fabulous) new iPhone New York Times app this morning delivered the following paradigm busting proposal -- a "preferred a new way of hearing expert testimony that Australian lawyers call hot tubbing."  In American Exception -- In U.S., Experts are [gasp!] Partisan, Adam Liptak explains:

In [a] procedure . . . called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues. In the Wilkins case, by contrast, the two experts “did not exchange information,” the Court of Appeals for Iowa noted in its decision last year.

Australian judges have embraced hot tubbing. “You can feel the release of the tension which normally infects the evidence-gathering process,” Justice Peter McClellan of the Land and Environmental Court of New South Wales said in a speech on the practice. “Not confined to answering the question of the advocates,” he added, experts “are able to more effectively respond to the views of the other expert or experts.”

What kind of cases has this process been used for?

In a dispute over the boundary of an Australian wine region, for instance, “there were lots of hot tubs — marketers, historians, viniculturalists,” said Gary Edmond, a law professor at the University of New South Wales in Sydney.
 

The Drawbacks? 

Professor Edmond said hot tubbing in Australia had drawbacks and was “based on a simplistic model of expertise.”  Judges think that if we could just have a place in the adversarial trial that was a little less adversarial and a little more scientific, everything would be fine,” Professor Edmond said. “But science can be very acrimonious.”

The Systemic Response Elsewhere?

Though no one expects this process to be imposed upon the American legal process, experts in the Mother Land are calling for "radical measures" to

to address “the culture of confrontation that permeated the use of experts in litigation.”

The measures included placing experts under the complete control of the court, requiring a single expert in many cases and encouraging cooperation among experts when the parties retain more than one. Experts are required to sign a statement saying their duty is to the court and not to the party paying their bills.

Just as you were saying "American lawyers wouldn't allow it," Liptak reports that

[t]here are no signs of similar changes in the United States. “The American tendency is strictly the party-appointed expert,” said James Maxeiner, a professor of comparative law at the University of Baltimore. “There is this proprietary interest lawyers here have over lawsuits.”

But we're fooling no one, particularly not ourselves.  It was Melvin Belli, after all, who once said “[i]f I got myself an impartial [expert] witness I’d think I was wasting my money.”

It's no surprise to us that

Judges and lawyers agreed, in separate surveys conducted by the center in 1998 and 1999, that the biggest problem with expert testimony was that “experts abandon objectivity and become advocates for the side that hires them.”

The Academic View from My Own Backyard?

Jennifer L. Mnookin, a law professor at the University of California, Los Angeles, who recently wrote about expert testimony in the Brooklyn Law Review, [said] “neutrals risk being a sort of false cure” because “there are often cases where there are genuine disagreements.”

The future, Professor Mnookin said, may belong to Australia. “Hot tubbing,” she said, “is much more interesting than neutral experts.”

Interesting to a law professor perhaps, but interesting is not what litigators and trial attorneys are looking for.

For further coverage and comment by the usual suspects over at the Wall Street Journal Law Blog read Experts in Hot Tubs?  Not Here in the U.S. of A.

• Print
• Comments
• Trackbacks

Mr. Thrifty is not a summer Olympics fan, though I am, but neither of us is much impressed by half-time shows (even when they include Janet Jackson's bared breast).  We were, however, quite genuinely and completely blown away by the Opening Ceremonies in Beijing. 

And we think you'll be blown away by this week's Olympic-themed Blawg Review -- which is far less dense and far more exemplary of the Chinese value of simplicity than last week's BR, which, unchecked, threatened to create a hostile environment for all right-thinking people in the Blawgosphere.

To add yourself to the Blawg Review hosting ranks, mosey along to the Blawg Review site during the Olympic intermissions.

Cheers! to Kohrman Jackson & Kratz for a job well done!

• Print
• Comments
• Trackbacks

In his recent New Yorker article, The Permission Problem, financial reporter James Surowiecki reviews Columbia law professor Michael Heller's new book, “The Gridlock Economy.”

TGE decries the development of an "anti-commons" in a business climate possessed by the demon of possession.  As Surowiecki explains:

Property rights (including patents) are essential to economic growth, providing incentives to innovate and invest. But property rights need to be limited to be effective. The more we divide common resources like science and culture into small, fenced-off lots, Heller shows, the more difficult we make it for people to do business and to build something new. Innovation, investment, and growth end up being stifled. 

. . .  The effects of overuse are generally unmistakable—you can’t miss the empty nets of fishing boats working overfished oceans, or the scrub that covers an overgrazed field. But the effects of underuse created by too much ownership are often invisible. They’re mainly things that don’t happen: inventions that don’t get made, useful drugs that never get to market.

In theory, one should be able to break a gridlock by striking a deal that would leave all sides better off. Sometimes that happens. Just the other week, for instance, Nokia and Qualcomm settled a three-year-long patent battle, which could accelerate the spread of third-generation cell-phone technology here and in Europe. . .  

One reason deals founder is that there are simply too many interested parties. If, in order to create a new drug, you have to strike bargains with thirty or forty other companies, it’s easy to decide that the price is too high. But often things go awry because owners won’t make a deal at a reasonable price. . . .

Why are deals with so many potential patent holders difficult to impossible?  Surowiecki explains:

Recent experimental work by the psychologist Sven Vanneste and the legal scholar Ben Depoorter [demonstrate that] [w]hen something you own is necessary to the success of a venture, even if its contribution is small, you’ll tend to ask for an amount close to the full value of the venture. And since everyone in your position also thinks he deserves a huge sum, the venture quickly becomes unviable.

So the next time we start handing out new ownership rights—whether via patents or copyright or privatization schemes—we’d better try to weigh all the good things that won’t happen as a result. Otherwise, we won’t know what we’ve been missing. 

For the full article, click here (emphasis added).  For further coverage on Heller's book, check out Tim Wu's review at Slate and the WSJ Law Blog's coverage here. 

 

• Print
• Comments
• Trackbacks

If intellectual property had a theme song it would have to be "Like a Virgin." 

Why?

Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.The restrictions of "how we've always done things" fall away and the numbing repetition of days become vibrant.   The rest, of course, is work.  Trial and error.  Success.  Failure. Rearranging the disaligned.  Completion.  

Then