IP ADR Blog

(why do these guys look so happy?)

(for a thorough analysis of the ruling and comments pro and con, see the New York Times article, Microsoft Ruling May Bode Ill for Other Companies. 

The comment of greatest interest to us here at the IP ADR Blog is the note that "antitrust enforcement [is] too slow to grapple with fast-moving high-technology markets," so that market forces, rather than the rule of law, prevail.  For full NYT article click here.

If those market forces are controlled by a monopoly, we may have to begin looking for other ways to balance the forces of competition, innovation, and consumer interests).

Yesterday's Post on Tension Between Consumer Protection and a "Free" Market

I think most creatively on the freeway.  Well, on the freeway and in the shower. And on an elliptical trainer.  These are all places I'm not supposed to be thinking so I park my brain in neutral and it performs wonderful tricks for me. 

It's pretty damn creative, actually.  It grabs odd trails of thought, puts them together and then taps me on the shoulder and asks How about this?

It's particularly helpful to have Mr. Thrifty in the car for a long drive because I'm a chatterer.  A world class stream of consciousness natter-er.  This should make you happy not to be married to someone like me.

Anyway, as I was nattering on the 405 between Sunset and the 118 on Sunday, driving to my Dad's house in Northridge, I said this:  Why doesn't someone load a laptop with the best programs available, make them COMPATIBLE and then sell the loaded laptop?

My brain gave me that nugget as I was complaining about the new Vista Operating system.  Since I know nothing whatsoever about software or hardware, I have no clue whether it's a good idea or not.  I only know this:  I purchased a new laptop with a Vista Operating System on it and NOTHING is compatible with anything else and it really $%#^%$'es me off.

So I must report that I'm happy with the Judgment of the European Court of First Instance in Case T-201/04 Microsoft v Commission.

Since I'm a devotee of Sun Microsystems CEO Jonathan Schwartz's rallying cry Innovate Don't Litigate, I wish the software industry would spend its money innovating around Microsoft rather than litigating against it.  (and yes, Jonathan, we'll forgive you for partnering up with Microsoft here because we think you might help make its products better -- at least we're counting on you so please don't disappoint us). 

Nevertheless, I'm happy to see good work being done for the consumer on all fronts, including the European Court of First Instance which just held as follows:

• Microsoft abused its dominant position by refusing to supply interoperability information to competitors for work group server operating systems. 
• Microsoft abused its dominant position by bundling the Windows media player with its Windows PC operating system. 
• The Commission did not err in assessing the gravity and duration of the infringement and did not err in setting the amount of the fine. The €497 million fine imposed on Microsoft stands.

Still, I'd really like to see someone launch that compatible laptop.  I'm first in line and will pay a very good price for it.

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The IP ADR Blog is pleased to announce that we are being joined in our IP blogging venture by John Leo Wagner, Federal Magistrate (Ret.).

Judge Wagner is a colleague of Mike Young's and mine at the Southern California ADR firm Judicate West.  His impressive credentials will soon be posted in the "About" section of the blog (up at the top there).  We provide only the highlights of his judicial and private practice career below.

Welcome John!!  We know that our IP ADR Blog readers will greatly enjoy hearing your thoughts on the negotiated resolution of IP disputes.

ABOUT JUDGE WAGNER

Judge Wagner has been engaged in the settlement and trial of intellectual property disputes for over 20 years. He is currently a full-time neutral with Judicate West Alternative Dispute Resolution, where he mediates and arbitrates all manner of patent, copyright, trademark, trade dress and trade secret disputes.

John was formerly Of Counsel with the Los Angeles-based law firm of Irell & Manella LLP, where he was the head of the firm’s ADR practice group and Director of the firm’s Alternative Dispute Resolution Center. He worked for over seven years as one of the ADR Center’s primary neutrals, settling a myriad of difficult intellectual property disputes.

Before joining Irell & Manella, John served for over twelve years as a United States Magistrate Judge in the Northern District of Oklahoma, where he founded and administered the Court’s mediation program, and served as the resident expert in settling IP disputes.

John has mediated and arbitrated thousands of cases and was recognized as a Southern California Super Lawyer in the field of Alternative Dispute Resolution in 2007. He has also been selected for inclusion in he 2007 edition of The Best Lawyers in America in the specialty of Alternative Dispute Resolution.

John is the President-Elect of the International Academy of Mediators, a Fellow of the American College of Civil Trial Mediators, a Member of the CPR International Institute for Conflict Prevention and Resolution’s Panel of Distinguished Neutrals and a Diplomate Member of the California Academy of Distinguished Neutrals.   John is also a member of the Board of Directors of the Federal Bar Association's ADR Section.

John has been active in guiding national ADR policies and practice for over two decades. He was appointed by Chief Justice Rehnquist to serve on the Court Administration and Case Management Committee of the U.S. Judicial Conference, where he helped to formulate rules and policies governing ADR programs in the Federal Courts. He also served on the CPR Advisory Committee dealing with Mediation Procedures and the CPR/Georgetown Commission on Ethics and Standards in ADR.

Judge Wagner frequently teaches and lectures on ADR topics.  

We're happy and proud to have him join us here.

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Take it or Leave It?  (cartoon by Charles Fincher at LawComix.com) 

Don't get caught making unproductive settlement moves, learn from some of the best in the U.K., L.A. and Half Moon Bay in October and November. 

For our U.K. readers, Victoria Pynchon will be speaking on IP ADR in the USA: Big Ideas and Fresh Perspectives on 8 October 2007 at the Hatton Conference Centre in London.  Click here to see the day-long schedule and to sign up for early-bird discounts.  A downloadable .pdf of the conference schedule is in our sidebar to the left.

For our Southern California readers, a full-day seminar on Settlement Techniques that Give You the Winning Edge with IP ADR Bloggers Victoria Pynchon and Les J. Weinstein; Judges Alexander Williams, III (full-time settlement Judge) and Victoria Chaney (Ass't Supervising Judge of the Los Angeles Complex Litigation Court); and neutrals the Hon. John Leo Wagner (Federal Magistrate, Retired) and Jay McCauley, will take place at the Wilshire Grande in downtown Los Angeles on November 13, 2007.  Sign up here.  

If your practice crosses over with employment issues, join us for ALFA International's Labor & Employment Practice Group Seminar entitled "Employer of the Year" or "the Office": Which One Are You? (.pdf of the event brochure) at the Half Moon Bay Ritz-Carlton on October 3-5, 2007.

Once again, Victoria Pynchon will be speaking, this time with Joshua Frank, Senior Legal Counsel to DHL (moderated by James M. Peterson of San Diego's Higgs, Fletcher & Mack, LLP) on the Pro's and Con's of Employment Arbitration.

You'll have to get up early for this one -- it's scheduled from 8:45-10:00 a.m. on October 3 -- but we promise you a lively debate and fresh perspectives on an issue that might make corporate and litigation counsel want to rip those arbitration clauses out of their and their clients' employment agreements. Then again, you might just decide to rewrite those ADR Clauses altogether so that you get the best possible dispute resolution mechanism for your and your clients' work-force.

Either way, the time is ripe for reconsidering and revising the way in which you and your clients handle disputes with their employees.

JOIN US!!

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Les Weinstein, who remains affiliated with the law firm of Shelton Mak Rose Anderson PC while arbitrating national and international intellectual property cases with the American Arbitration Association, was my boss, mentor and teacher more than twenty years ago (yikes!) when we practiced together at Pepper, Hamilton & Scheetz.

It's a pleasure and privilege to welcome Les as one of the contributors to the IP ADR Blog.  Since meeting one another again in the ADR world, Les and I have co-mediated copyright and patent infringement cases and I have assisted him with some of the most sophisticated and complex arbitrations, including a billion dollar infringement case between two IP industry titans. 

Les has over 40 years of experience as a trial, counseling and appellate lawyer specializing in patent, copyright and trademark law, as well as the law of competition (antitrust, trade secrets, unfair competition and unfair trade practices). Mr. Weinstein's knowledge of patent law and practices is particularly deep.

He is not only registered to practice before the U.S. Patent and Trademark Office, he had early experience as a Patent Examiner, before which he worked as an engineer to ITE Circuit Breaker Co.

No stranger to the courtroom, Mr. Weinstein worked for the U.S. Department of Justice in Washington D.C. under an appointment to the Attorney General's Honor Program. It was there that Mr. Weinstein earned his trial stripes before going on to a long and distinguished private career as a partner with McKenna, Conner & Cuneo; name partner with Bleecher, Collins & Weinstein, and Senior Partner with the law firms of Pepper, Hamilton & Scheetz, Graham & James LLP, Squire Sanders & Dempsey LLP and Sheldon Mak.

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