The IP ADR Blog

Larry Lessig on Congressional Reform, Internet Policy and the Upcoming Election

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 19 Aug 2008 12:17:52 -0800

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.

Cease and Desist at Pooh Corner

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 19 Aug 2008 09:00:49 -0800

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.

Blawg Review #173 at Chicago IP Litigation is Swimming

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 18 Aug 2008 20:25:50 -0800

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.

Do Patent Infringement Litigants WANT an Inefficient Dispute Resolution Process?

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 18 Aug 2008 09:26:18 -0800

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.

As We Were JUST saying . . . . last YEAR, Innovate, I mean ADVERTISE

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 16 Aug 2008 09:17:16 -0800

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

An Olympic Moment: Negotiating IP Licenses and Disputes with Chinese Nationals

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 15 Aug 2008 09:10:31 -0800

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.

Involved in Contentious IP Litigation? Check Out This Cluster #$%@#

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 14 Aug 2008 15:35:28 -0800

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?"

IP Litigator Rule-of-Law-Heroes from Perkins Coie

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 13 Aug 2008 19:40:13 -0800

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.

This is Where the Patent Litigation Ends: Cross-Licenses & Share Prices Up

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 13 Aug 2008 08:56:05 -0800

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

Settle Your IP Dispute in a Hot Tub

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 12 Aug 2008 08:20:47 -0800

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.

Blawg Review #172 is Up at the Ohio Employers Law Blog

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 10 Aug 2008 11:00:31 -0800

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!

Are Too Many Patents as Bad for the Economy as Too Few?

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 07 Aug 2008 11:20:09 -0800

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.