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In an apparent attempt to corner the market on the upcoming Easter festivities, several inventors have successfully patented their own little corner of the holiday. I never realized Easter veneration was such big business that people apparently feel the need to enlist the government's help in defending their Jesus kitsch against devilish infringers.
Dolls formed in the likeness of the Lord Jesus with a movable head and extremities. Patent Number 5456625 The doll is provided with electrically conductive nails which when inserted through apertures in the hands of the doll, mount the doll to a provided cross and close an electrical circuit which illuminates the cross. I am just curious to know at what point this sounded like a good idea.
Musical religious doll and singing bible nightlight US Patent Number 5957747 A doll in the likeness of The Lord Jesus clothed in a white silky robe, with a red silky sash and brown leather-like sandals. A heart shaped locket is attached to the chest of the doll at a point which approximates the location of the doll's heart. The user may add and remove things from the heart shaped locket. Just what does one fill Jesus' heart with? Doll having internal religious image US Patent Number 6371825 A doll includes an internal religious image such as an image of Jesus Christ to convey to children the idea that God or Jesus Christ exists inside all children. The religious image is preferably a hologram. The image is located in the chest portion of the doll. I am the first to recommend teaching toys for children. I suggest, however, weighing the anticipated educational benefits against the likelihood the toy just might emotionally scar the child for life.
Tomb basket US Patent Number 6021900 A repository device, useful as a collection container, a religious instructional tool and a religious decorative item is disclosed. The repository device consists of a completely enclosed, ovoid-shaped basket having a conventional handle and having a moveable side entry closure in the top portion of the basket. The entry closure is designed to assimilate an ancient tombstone used in ancient times to seal burial tombs. A burial tomb Easter basket? Now what kid would not be beside himself with excitement opening up something like that on Easter?
I am honored to be one of the presenters tomorrow for Strafford's continuing legal education program - Ethical Risks of Online Communications by Law Firms, Websites, Blogs and Online Networking:Staying on the Right Side of the Ethics Line. Two other panelists will be joining me for the live 90 minute presentation tomorrow at noon:
John Steele, Ethics and Conflicts Director and Special Counsel, Fish & Richardson, Silicon Valley, Calif. He is responsible for conflicts of interest and ethics particular to IP law practice. He is a lecturer in legal ethics at Boalt Hall School of Law at the University of California–Berkeley.
Diane Karpman, Partner, Karpman & Associates, Los Angeles. She defends lawyers in attorney discipline and regulatory proceedings before the state bar and in court. She is frequently retained as an expert witness in legal malpractice actions.
Even more important than the panel presentation will be the live question and answer session connecting over fifty different law firms from around the country. For more information or to sign up to listen to me over lunch, visit Strafford's website.
[Remember, for the most recent BlawgIT postings, visit www.blawgit.com]
Attorney Eric Menhart, the guy who tried to register the trademark CyberLaw, does not appear to the only trademark altruist out there. According to bit-tech.net, Finnish game developer Futuremark Oy is attempting to register the trademark pwnage.
To be fair, they are only trying to monopolize the trademark as used in association with:
Computer game software for communication devices; computer game software and computer game programs enabling users to play games with mobile phones and personal digital assistants; computer software and programs enabling users to communication devices to simultaneously access databases and global computer networks; software enabling transfer of data between mobile communication apparatus; computer game software; computer game programs; computer game discs; interactive multimedia computer game program; downloadable ring tones, graphics and music via global computer network and wireless devices; cases for mobile phones; computer application software for mobile phones; multimedia software recorded on CD-ROM featuring fictional characters and computer games; pre-recorded DVD's, video tapes, laser discs featuring movies about fictional characters, and pre-recorded compact discs featuring music; motion picture films on fictional characters
Entertainment services, namely, providing online computer games provided via network between communications networks and computers; providing on-line computer games; providing on-line games; providing temporary non-downloadable use of interactive games and video games from databases on web sites, a global computer information network, and from mobile and cellular phones and personal digital assistants
and, don't forget, Computer software development
Jukka Mäkinen, executive producer at Futurmark assured everyone however, that Futurmark's intention in filing for the monopoly was not to "charge money or stop people from using the expression." Futurmark merely wants to stop some other company, which may not be nearly as altruistic and kind as Futurmark, from registering the trademark and stopping Futurmark from using the word. Futurmark also stated they will "charge anyone that seeks to make money from the word." [insert whiplash inflicting head swivel here]
Somehow I picture this guy wearing a dusty robe in a landspeeder waving his hand slowly while saying "These are not the droids you are looking." At least then he would get some points for panache. As it stands, he merely gets points for chutzpah, and still only manages silver. Maybe by Beijing he will be ready to challenge Mr. Menhart for the gold.
[Remember, for the most recent BlawgIT postings, visit www.blawgit.com]
You buy a Ferrari and its yours right? Not according to Ferrari. Limousine builder Dan Cawley not only purchased a Ferrari 360 Modena, but he claims when he asked Ferrari if they cared if he modified the street legal race car into the fastest limo on the planet. Cawley says Ferrari told him he could do what he wanted, the car was his.
£200,000 in modifications later, Ferrari is now arguing that to keep the Ferrari badging on the car is an infringement of Ferrari's trademarks. This should come as quite a shock to all you tuners and modifiers out there. Ferraris are apparently more like a porcupines than anyone previously thought.
Due to a minor glitch in switching this blog over from Blogger to WordPress, I inadvertently cross-referenced the "Does your Lawyer Trust You?" post with the "Who Surfs This Much Porn?" post. As a result, a Google search for the term patent lawyer porn now lists me as the number one search result. I would, therefore, like to apologize to any of you arriving here actually looking for patent lawyer porn. As a consolation, however, I have already submitted you for inclusion in the next edition of the Diagnostic and Statistical Manual of Mental Disorders.
As conditions of my parole release prevent me from posting anything that even remotely approximates patent lawyer porn, the best I can do is to direct you to this list of rather strange patents. I would also like to recommend several of this week's Blog Carnivals, all of which include patent attorneys. I can just imagine their excitement over their carnival's affiliation with a post on patent lawyer porn. Notwithstanding, here they are:
Our favorite fiduciary and global intellectual property strategist, Duncan Bucknell of the IP ThinkTank Blog hosts a The Carnival of Trust where he has handpicked this month's most trustworthy blog posts from around the world.
I just wanted to offer a hat tip to those bloggers taking the time to selflessly serve up a collection of competing opinions for the benefit of their loyal readers.
Seems like a strange question Everyone talks about whether they can trust their lawyers, but who ever hears lawyers talking about trusting their clients? One reason you do not hear much about it is that you do not spend enough of your free time hanging around lawyers (you may want to consider taking up polo and/or Alpine skiing). Another reason is that even if a lawyer does not trust a client, the attorney/client relationship prevents disclosure of the sordid details. Still another reason is that some lawyers see not being able to control a client as a sign of weakness. Probably the biggest reason why you do not hear much about it, however, is that either way, it is the client, and not the attorney that bears the brunt of the distrustful relationship. You do not want to be distrusted We are not talking about lying. If you blatantly lie to your attorney, your attorney finds out and decides to keep you as a client, I would have serious reservations about continuing to engage a lawyer who condones lying. What are the odds the lawyer will not lie to you? Instead, what we are talking about is clients acting in an unanticipated fashion: flying off the handle, writing angry letters to the opposing party, failing to pay, drafting their own contracts, filing their own patents, etc. On one hand these types of client do provide job security. On the other hand, they end up paying a lot more in legal fees for far worse results.
Keep your lawyer happy Early on in my career I was far more concerned with the quantity of clients, rather than the quality. I mean, how can someone paying you $200/hr be bad? The problem is that the same type of clients that ignore lawyerly advice and take matters into their own hands are precisely the type of clients most apt to harangue their lawyer when bad things inevitably begin to happen. Thankfully, I am at a point in my career where I can pick and choose my clients. Selecting only clients I trust and letting the other ones go has been the one thing that has had the greatest impact upon my continued enjoyment of the practice of law. I still enjoy every day, and the fact that I actually like all of my clients motivates me to constantly improve the service I provide them.
Stereotyping Thankfully, problem clients are fairly easy to spot. Lawyers recognizing any of these signs during an initial meeting, should think long and hard whether these are the problems they want for the next several years. Clients recognizing aspects of themselves need to do some long hard navel-gazing.
Signs you may be a problem client While I am no expert on the matter, there are several types of potential new clients that give me the heebie geebies:
1) The Complainer. Will not stop complaining about his or her last two lawyers. Fearful of becoming number three on the list, I ask them more about the last two lawyers. If the problems seem to be client-driven, I typically assist them with finding an attorney more suited to their temperament.
2) The DIY guy. They want to do all of the work and just have me look over their shoulder. While there is some legal work a client can do as well as an attorney, most things they cannot. The problem is that the DIY guy does not realize his folly until several months, or even years, later. Clients that demand to draft things like their own patent and just have me "look it over" I typically shuffle toward the door.
3) Ms. Sun and the Moon. She wants five patents, three lawsuits and two new businesses incorporated. One thing though, she is going to have a little trouble raising the $1,000 retainer. Strangely the slow pay/no pay client is often the one requesting the most legal work. Ms. Sun and the Moon continues to fall in arrears until the point when she tries to argue a bad outcome merits a hefty discount on her outstanding balance.
4) The Amnesiac. You tell them one thing and they do another. Luckily you can usually spot these clients in the initial interview. They ask advice, you give it to them. Then, five minute later, they say something that indicates that they intend to completely ignore your your advice.
5) The Bully. Every attorney/client relationship is different, or at least it should be. The problem arises when the bully client demands you start pushing the envelope as to what is ethical or legal. This relationship cannot help but end badly. This is one relationship that can actually end quite badly for the attorney as well as the Bully.
While many attorneys proffer advice on how to fire these types of untrustworthy clients, it is far preferable not to be hired in the first place. For you clients out there recognizing yourselves in any of these stereotypes, if your legal woes never seem to end, it may be time to change your untrustworthy ways. Having an attorney whom you trust AND who trust you, is the most important aspect of any attorney client relationship.
My last Who Owns Your Website post was very well received. The jist of that post was that unless your website was created by your employee in the course of employment OR you obtained a written assignment of all rights in the website, you probably do not own your website. That post covered those parts of your website that you honestly thought you owned, but as it turns out, you do not. This post covers things you probably knew you did not own, but thought you could use without getting caught.
Here are the excuses I hear when people get sued for infringing someone else's website design. I thought it was okay because:
They Gave Me an Inch You paid a designer for work on a website. Now you want to replicate that design across several websites, and possibly even license it to others. Although you paid the designer for the work, you do not own the work. You merely have an implied license to use the work for its intended purpose. Whether that "purpose" includes use in other projects and/or sublicensing is a question for a judge or jury to decide. To avoid getting to that point, obtain an assignment of copyright up front, or at least detail in writing exactly what you can and cannot do with the design.
BadgerMan69 Said it Was Okay Often an employee or a message board commenter will attest to the availability of design material for public consumption. "Fair use", "public domain" and/or "I am the author", are all common justifications. The problem is that the person authorizing the use typically has little or no knowledge about intellectual property laws. While you might possibly use this "authorization" to convince some judge you were an innocent infringer, this defense merely reduces the punitive damages and other side's attorney fees you might have to pay. Even an innocent infringer still has to pay compensatory damages and their own attorney fees.
All My Friends Jumped Off the Bridge . . . A lot of website infringements stem from the perception that since everyone else is doing it, it must be okay. This can easily get out of hand. Say a website owner licenses a particular design. An unscrupulous competitor then sees the design and steals it for his or her own website. A third ethical, but non-intellectual property savvy, competitor sees the other two designs and assumes the design is fair game. The process continues until everyone but the original licensee is in federal court defending themselves against claims of copyright infringement. BTW/if you find yourself in this position, resist the strong temptation to explain to the judge that you only broke the law because everyone else was doing it too.
I changed 25% of the Design I have no idea from where these urban legends originate. There is no law which allows you to copy something if you change "x" percent of the design. If it is substantially similar, you better rethink using it. This can be a big concern in the situation where the designer based the design on a pre-existing copyrighted work, merely creating a "derivative" from the original. The designer truly believes he or she owns all rights in the new work when they subsequently license the work to you. To avoid this problem, stick with seasoned designers, more likely to know what they can and cannot do with other people's work.
It Did Not Have a Copyright Notice In the past, if you published a work without proper copyright notice, the work went into the public domain. No longer. With the advent of the Internet, people are constantly stealing other people's works and posting them online without proper copyright notice. The absence of a copyright notice merely provides you the opportunity to throw yourself on the mercy of the court and claim innocent infringement. You still have to stop using the work and you still have to pay stiff damages and your attorneys, you just might be able to avoid paying punitive for punitive damages and their attorneys.
I am Not Making Any Money From It/Giving the Author Free Publicity I believe this line of thinking originates with a misunderstanding of Fair Use. While monetary gain on your part and loss of income on their part are indeed factors to be considered in rendering a determination of whether a use is indeed "fair use", the rules are much more complex and their application mercurial. Remove "fair use" from your mindset; act like it does not exist. If you absolutely need to use something in a manner you believe is fair use, obtain a written opinion from a copyright attorney first. Even if the attorney determines the use is not allowed, he or she might be able to suggest legal alternatives.
Now, go off and infringe no more.
Oh, I almost forgot about the Chinese. Wu Ying of Woogle's Blawg has translated my Who Owns Your Website post into Chinese. You can check out the translation here. Personally, I do not think I come across nearly as
Last week’s superb Blawg Review #147 by the world’s foremost authority on North American badger law left me rather intimidated. Realizing the challenge of following my good friend Rushwith a post of similar caliber, I nearly threw in the towel and moved to French Polynesia. Fortunately, Rush talked me down from the precipice and convince me to give it a try.
While considering a theme for this week’s Blawg Review, it struck me that lawyers do not spend as much time aimlessly meandering the web as would, for instance, a typical air traffic controller. As a result, most lawyers are woefully detached from the Zeitgeist embodied in the lowly Internet meme. An Internet meme is any amusing video, email, picture, audio clip or other material that spreads virally across the internet. Unlike computer viruses, which spread based upon how many paint chips the people opening them consumed in their youth, Internet memes spread based upon how entertaining viewers find them.
Although blawgers are more aware of Internet memes than your average lawyer, blawgers still find there are not enough hours to stay up to date with each new version of someone reenacting the Thriller video at a wedding. To save you from this critical legal research, I assiduously complied several of the most popular memes for you. While the list might not necessarily "make" your day, at least it might maintain your work/life balance in sufficient equilibrium to stave off the rubber room for another week. The list is not comprehensive, but it is the best I can muster without being served pre-marital divorce papers. For those of you true professional Internet slackers, swing by memelabs and test your meme IQ.
Without further ado, the Blawg Review List of Internet Memes:
As Cool as Intellectual Property – You’ve Been Rick Rolled
One of the most interesting recent online intellectual property events was Eric "Wile E. Coyote Cybergenius" Menhart capitulating his quixotic attempt to trademark the term "cyberlaw" out of the public domain. Admittedly, as that is also the title of my latest book, I had a little skin in the game. Thankfully, many seasoned cyberlawyers joined Eric Goldman and Ron Coleman in gang-tackling Mr. Menhart before he scored his trademark registration. Tricia Bishop of The Baltimore Sun even quoted your humble narrator in her documentation of Mr. Menhart's online implosion. Now what was that about no publicity being bad publicity?
The last decade and a half of my days have been filled with providing clients patent advice. Strangely, one suggestion I never considered giving a client was to donate a large sum of money to their Senator to avoid liability for patent infringement. Michael Gorman of the Tech Law Forum reports that Alabama Senator Jeff Sessions is sponsoring a bill to make his donors immune from the repercussions of a pending patent infringement lawsuit. A hundred grand or so (plus any last vestige of your integrity) seems like a small price to pay for several billion dollars worth of immunity.
For those of you juris doctorates looking to get in on a little of this political largess, check out Robert Ambrogi's post on how the practice of law prepares you for public office.
Looking for another lawyer to do the heavy lifting for you? Check out the manonfyre's diary over at the Daily Kos, highlighting copyright guru Lawrence Lessig's potential run for Congress. Don’t worry; this is not all some sort of master plan by intellectual property attorneys to take over the world. But then again, would I tell you if it was?
Growing Lack of Civility - Don’t Tase Me Bro
According to The Word on Employment Law with John Phillips, bullying in the workplace is not against the law. Well, that is unless the bullying is tied to race, sex, national origin, religion, age or disability. I think they call this the you-can-only-bully-Brett-Trout rule. Apparently, several states are considering making all workplace bullying illegal. That despite the fact that such laws would extinguish the sole morsel of joy my legal assistant currently extracts from her current employment.
Al Brophy of The Faculty Lounge has an interesting post on what appears to be a shift in sympathy of first year law students. For the first time ever, male students appear inclined to award higher damages to female victims than do female first years. I guess the question remains whether this portends warmer, fuzzier male attorneys down the road, or merely more female juris doctorates entering the political arena.
Just in time for the latest crop of graduating law students, Ted Frank of Overlawyered has complied a list of things not to do after you pass the bar. Oh Ted. If only you had been blogging back in 1992. You could have saved me a whole lot of grief.
Geek Celebrity - Star Wars Kid
Dan Solove, Deven Desai and David Hoffman of Concurring Opinions landed an interview with Battlestar Galactica creators Ron Moore and David Eick. The interview covers how legal systems morph as extreme military pressures begin to stress our civilization. Now you can get your USRDA of bloggers, lawyers, politics and science fiction all in one convenient location.
Jack Balkin offers kudos to those niche academic legal bloggers who actually add to the collegiality, professionalism and collective knowledge base of the legal community. Balkin notes that the most popular law prof blogs drive readership through political punditry, gossip, entertainment, blog scraping and cultural commentary, basically everything short of actual legal scholarship. Balkin salutes niche bloggers for conveying interesting and important legal concepts to an audience which extends beyond the traditional "legal academy."
The Beat of a Different Drummer - I Like Turtles
Andrew Scott-Howman of Life at Work lets us in on a little secret about flatulence in the UK. According to an English Employment Tribunal, excessive flatulence does not qualify as a disability. Apparently, they are not talking to the same people I am talking to.
Susan Cartier Liebel of Build a Solo Practice explains that the best way to stay competitive is not to try to beat your competition at their own game, but to attract clients by differentiating your practice. For example, if there are several large firms in your area offering badger law services, try promoting your one-on-one service, rather than simply trying to undercut them on price.
Carolyn Elefant at Legal Blog Watch takes a look at what lawyers envision as the law practice of the future? Strangely, it looks a lot like my practice right now. Only with more robots.
Marc Randazza of the The Legal Satyricon analyzes the ethics of 800lb intellectual property gorillas slapping around the little guy. Instead of a rock, Professor Randazza points out, the David in this case appears to have his sling brim full of intellectual property insurance.
The Situationist takes up the issue of Lawyers using brain scans to argue defects in their clients' brains means the clients are not liable for their crimes. I wonder if that argument works with forgetting anniversaries.
Lyle Denniston of SCOTUSBLOG walks us through the Supreme Court's recent ruling allowing individual states to determine the retroactive applicability of Supreme Court rulings on criminal procedure. For more on this, check out Kent Scheidegger on Crime and Consequences and Doug Berman on Sentencing Law and Policy. Just something you might want to discuss with some of your less savory clients prior to their next criminal enterprise.
From the "It's only unconstitutional when YOU do it" category, Marc Edelman form Above the Law discusses Florida Marlin Owner Jeffery Loria's threat to take his team to Vegas if Miami-Dade County does not cough up around $300M for a new stadium. While such an outlay appears to be unconstitutional under Florida law, that does not seem to be the problem. The problem is convincing Florida taxpayers to line the pockets of much maligned Mr. Loria with their hard-earned moolah. On the bright side, it appears Miami-Dade County residents are getting the shaft either way. From that vantage, it is clearly a win-win. Another bright note is that the Marlins have provided a loophole which the selfless captain of our new Iowa Volunteer Lawyer's for the Arts Project and I may just be able to exploit to finally take the field for a Major League Baseball team next year.
Binary Law discusses delving into your own navel to answer the age old question of "What Makes a Great Blawg." While I did not necessarily find that answer, I did locate a lintbunny the size of a Weeble.
PrawfsBlawg is holding a contest no one wants to win. They are looking for the "Most Screwed Victims in Caselaw History." For those of you practicing outside your area of expertise, I believe the rules allow submitting your own clients for this admittedly dubious distinction.
For the avoidance of doubt when drafting contracts, check out this post on the strange language of lawyers over at Naked Law. Sorry Rush, no pics on this one.
Give Them a Hand – Daft Hands
Scott Greenfield of Simple Justice takes issue with trolls and complainers griping about blawgs just to hear themselves gripe. Scott also has a nice take on one of my particular pet peeves, anonymous bloggers. I appreciate those anonymous bloggers who merely collect and collate the latest news for my lazy perusal, but I give anonymous blogs and comments very short shrift. I guess I just demand a little more principle behind my blogs. Plus, how do you expect me to argue your point online if I can't track you down and physically assault you when I lose?
This week, the anonymous intellectual property Patent Troll Trackerunmasked his alter ego, Rick Frenkel. Crime fighter by night, mild mannered in-house counsel at Cisco by day. Apparently, the $15,000 bounty on Rick's head was simply too much for someone to resist. Although I don't particularly care for anonymous bloggers, I really do not care for anyone who would serve up a blogger on a plate like this for money. Perhaps someone should put a bounty on that guy's head. In keeping with the tone of this post, and as a special prize for all you Blawg Reviewers, I have decided to reveal the true identity of Blawg Review's Ed. Out of respect for those of you who do not wish to know his real identity, I have posted the details at this link.
Small Business Trends' Anita Campbell had a former embezzler on her show to explain to her listeners how to avoid being the victim of embezzlement. Now that authorities have charged the guest with conducting a new embezzlement scheme, Ms. Campbell wants your input on whether she should take that particular show off of her website. Perhaps the brain surgeon that hired this guy to watch the corporate finances years AFTER he had already served time for embezzlement, may want to consider subscribing to Ms. Campbell's blog feed to prevent these kinds of things happening in the future.
Finally, if you ever wondered why you seem to be working more, but enjoying it less, these sock puppets over at Balkinization spell it out in no uncertain terms. Oh yeah, there will be a quiz over this material on Friday.
I am a patent attorney, but the ramblings to your left are not legal advice. Peculiarities of the law, the facts, the client and the lawyer (mostly), make every case unique. If you feel this blog speaks to you, you must seek professional help (heck, why not talk to a patent lawyer while you are at it).
If you see something you like, join in the conversation. The chance I might be wrong is merely theoretical at this point, but feel free to point out any monkeys you see waxing Bard-like in my posts. I am too old to admit a mistake, but I will enjoy the discussion. No information you send me or post is confidential. By posting or sending anything to me, you authorize me to use it for ANY purpose I desire, including, but not limited to, folding origami ballerinas for my Nutcracker diorama.
If the postings can’t placate your Internet law jones, check out my book Cyber Law or check out Lawpportunities. You can also visit my Iowa Patent Lawyer website or stop by our offices at 516 Walnut, Des Moines, Iowa.
Thanks to a little gentle nudging by one of my Twitterer Tweeps, Susan Cartier Liebel of Build a Solo Practice, Internet Guru Extraordinaire Guy Kawasaki has just added law blogs to his popular Alltop.com franchise.
