Opening Statements Delayed in Microsoft Case

I just returned from listening to preliminary jury instructions in the Iowa Microsoft case. After hours of pretrial instructions being read and with many more left to read, Judge Scott Rosenberg dismissed the jury until tomorrow. While more than a couple people in the audience were bobble-heading, the jury appeared attentive and eager to get started. Opening statements should be quite impressive.

For more of my opinion on the case, check out the podcast of my appearance on the David Lawrence Show. For a differing view, check out Rush Nigut's blog.

Brett Trout

Other Related Topics:
Microsoft, Iowa, Antitrust, Roxanne Conlin, Des Moines

Don't fling me in that briar patch

Oral arguments in the Supreme Court patent case of KSR v. Teleflex (Supreme Court 2006, Oral Arguments)yesterday revolved around the test for determining whether an invention is "obvious" and therefore not patentable. The current test for obviousness has developed over a number of cases over the last twenty plus years. The test requires that to show an invention is obviousness, and therefore not patentable, one must point to some teaching, suggestion or motivation (TSM) in the prior art (old patents and publications).

Proponents of the current TSM rule, like all of the major patent bar associations, argue that the current rule has worked well for decades and that any change in the test would place the validity of hundreds of thousands of patents in jeopardy. Opponents of the TSM rule, such as the software industry, argue the current standard allows too many patents to issue.

One surprising comment in yesterday’s oral argument before the Supreme Court came from Chief Justice Roberts. Responding to the comment that every single patent bar in the country sides with maintaining the certainty associated with the current rule, the Chief Justice responded “That just indicates that this is profitable to the patent bar.”

I do not believe amici briefs filed by the major patent bars are motivated by money. In fact, changing the rule will increase fees paid to patent attorneys. Admittedly, a change in the rule may slightly decrease the fees patent attorneys collect for drafting patents, as a change may dissuade a small number of independent inventors from seeking patents.

Overall however, a change in the rule cannot help but significantly increase fees paid to patent attorneys. Fees associated with prolonged obviousness arguments before the United States Patent and Trademark Office and litigation over the formerly unassailable obviousness of a mountain of patents cannot help but provide patent attorneys job security and increased fees for at least the next twenty years. While I cannot quibble with making more money, I would prefer not to do it on the backs of independent inventors.

Brett Trout

Other Related Topics:
KSR, Patent, Obviousness, Supreme Court, Patent Validity

A World Without Lawyers

A world without lawyers? Say it is not so. Ever since multiplayer video games hit the Internet, the application of real world laws to virtual games has fascinated me (sorry ladies, I am already spoken for). I envisioned problems such as online fraud, theft, murder etc. I waited and waited for the cases to hit the courts. They did not and I was heartbroken. Was the world indeed better off without lawyers?

Well you can now rest easy. Turns out the reason no one was suing anyone was that the damages were not large enough to justify a lawsuit. If you contractually agree in your end user agreement that your car, lover, or sword of destiny has no real value, a lawsuit is simply not worth the effort. Place some real world value on those things however, and lawyers are the only ones who can protect you.

Enter the game Second Life. Since its introduction in 2003, Second Life has grown to over a million and a half users around the world. Like in other massively multiplayer online role playing games (MMORPGs), Second Life players create their own characters and then interact with other characters. The difference with Second Life is that the players purportedly "own" in real life, all of the property they own in the game. Online tycoons like Ailin Graef (aka German schoolteacher Anshe Chung) have already amassed online fortunes worth seven figures of real world cash.

A MMORPG like Second Life is a Utopia of sorts. No real houses, cars or property. No real lawyers or law. Just a large real world corporation unilaterally laying down virtual law pursuant to a non-negotiable end user agreement. While such a system of government may work well when damages for any crime is de minimus, the system may begin to break down when the bad guys take notice six figure booty.

Second Life has a police blotter of online "crimes" and, like other MMORPGs, has issues with pornography, gambling, compromised account information, theft and favoritism. Unlike other MMORPGs, however, problems compound with money at stake. Take the instance of attorney Marc Bragg who apparently exploited a flaw in Second Life. Mr. Bragg found a way to trigger online land auctions early, making himself the only bidder and winning the auction for the minimum starting price.

Instead of merely correcting the flaw or demanding the return of the ill-gotten gains, Second Life owners shut down Bragg’s access to all of his Second Life assets. Bragg sued. While the court has not ruled as to whether Bragg was at fault, having an online judicial system where the judge could take every piece of property you own for running a red light, would leave me a little wary of his or her objectivity.

I can tell you one thing, If I had a million dollars in real world value sitting in Second Life, I might seriously consider moving it somewhere where an overly aggressive interpretation of an end user agreement might leave my million bucks buying gold painted diamond speedboats for Linden Lab’s wakeboard team.

Brett Trout

Other Related Topics:
Second Life, Marc Bragg, MMORPG, RPG, Linden Lab

Patent Offices Kills Document Disclosure Program

As of February 1, 2007, the United States Patent and Trademark Office will no longer be offering the $10 document disclosure program. Given the benefit (or lack thereof) the program offers inventors, it appears the program was actually significantly overpriced. Just like the old wives tale of protecting your invention by sending yourself a letter with the invention disclosed therein, the document disclosure program apparently gave some inventors a false sense of security that the document disclosure program afforded them something more than a conception date. According to the Patent Office, some inventors erroneously believed the document disclosure program was the equivalent of filing a patent. Finding that the document disclosure program provides little in any benefit to inventors, the Patent Office has discontinued the program.

If your only concern is obtaining a date of conception, a provisional patent application will provide the same protection. If you are actually interested in protecting your invention though, a regular patent is still, by far, the best option.

Brett Trout

Other Related Topics:
patent, inventor, invention, document disclosure, patent lawyer

Iowa Inventors’ Group

Inventor extraordinaire Michael Hill is the founder of the Iowa Inventors' Group. The Group is a non-profit group of inventors looking to share ideas about inventions and entrepreneurship. The Iowa Inventors' Group's website has all kinds of valuable information, including helpful links for new and seasoned inventors alike. Whether it is getting a patent or marketing a product, the Iowa Inventor’s Group has the answers.

Created to "assist, disseminate and promote services, education and networking opportunities to independent inventors" the Iowa Inventors' Group meets every second Monday of the month at 7:oo p.m. Most of the meetings are in Cedar Rapids, Iowa, but I will do what I can to bring one down to Des Moines. If you are interested in a Des Moines meeting, drop me a line and let me know what month would be best for you.

The Iowa Inventors’ Group is a fantastic opportunity to meet with other inventors and to share ideas about what works and what does not in getting your invention out of your head and into the marketplace. The newly updated website includes a blog , as well as an interesting article from Inventors’ Digest on the Ten Commandments of Invention (you have to like any article that speaks of patent lawyers with such high regard). If you are an inventor, or are even thinking about becoming one, make sure the next Iowa Inventors' Group meeting is on your calendar.

Brett Trout

Other Related Topics:
patent, inventor, invention, Iowa Inventors’ Group, patent lawyer

California Supreme Court insulates bloggers from defamation liability

Rush Nigut scooped me on a big blog-related lawsuit I should have been following. Thanks to Rush for the heads up. Although the facts of Barrett v. Rosenthal do not involve bloggers, the ruling of the California Supreme Court in that case surely does. Yesterday the California Supreme Court ruled that 47 USC 230 not only insulates Internet service providers from liability associated with defamatory comments posted by third parties, it also insulates ordinary Internet users who repost defamatory material.

While the ruling does nothing to protect bloggers who aid in the creation of the defamatory material, bloggers can rest easy that, at least in California, they will not be liable for the defamatory nature of information they reprint from somewhere else. Keep a close eye on this District of Columbia case, however which threatens an opposite ruling which could put bloggers' heads on the chopping block. While this new California ruling protects bloggers from liability associated with defamation, neither this ruling, the anticipated DC ruling or 47 USC 230 limits blogger liability for patent, trademark or copyright infringement, other intellectual property laws, criminal laws, state laws, or communications privacy laws. Be sure to check out Eric Goldman’s Technology and Marketing Blog for the latest 47 USC 230 case law updates.

Brett Trout

Other Related Topics:
Defamation, 47 USC 230, Blog Liability, Barrett, California Supreme Court

Link Love – With Some Spanking

Recently, I have been lecturing quite extensively on lawyer blogging. Inevitably, the question comes up as to whether there is any liability for merely linking to another website. Until last month, my answer has always been no.

The Internet is linking. To make linkers liable, either criminally or civilly, for linking would undermine the entire premise of the Internet. To have content providers looking over their shoulder or second guessing themselves about posting a link would steal not only the heart and mind of the Internet, but its soul as well.

So important is this premise to the very backbone of the Internet, Congress has passed a law insulating service providers from liability resulting from the posting of information by a third party. 47 USC 230 provides, in part:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Although this language has defended Internet service providers, message boards and websites, no court has yet enlisted it in defense of bloggers. A recent case, however, threatens to force the issue. Eric Goldman, author of the Technology & Marketing Law Blog reports that bloggers may soon be in jeopardy if a District of Columbia court carves bloggers from the “safe harbor" 47 USC 230.

The case of Steinbuch v. Cutler involves Jessica Cutler, a political intern, allegedly involved in an affair with Robert Steinbuch, staff attorney for Senator Michael DeWine. Cutler relayed details of her encounters with Steinbuch and others in her Washingtonienne blog. The blog detailed not only “RS’s” spanking, but several other sexual exploits as well. Robert Steinbuch promptly sued Culter for invasion of privacy and intentional infliction of emotional distress.

The problem lies, however, in a 10/30/06 order by the court allowing the addition of Ana Marie Cox of the blog Wonkette as a defendant. The court allowed Robert Steinbuch to add Ana Marie Cox to the lawsuit for allegedly linking to the Washingtonienne, reposting material from the Washingtonienne and allegedly working with Cutler to invade Robert Steinbuch’s privacy.

Although sordid, the facts underlying the privacy issues to not threaten to make any new law. The blogger linking liability issues, however, threaten to spank the Congressional protection of bloggers right out of existence.

Brett Trout

Other Related Topics:
Wonkette, Robert Steinbuch, Ana Marie Cox, Washingtonienne, Blog Liability

Justify Your Sample

We already have patent trolls and trademark trolls. Are we ready for copyright trolls? Just as patent and trademark trolls are wreaking havoc on businesses, copyright trolls are now wreaking havoc on entertainers. According to Columbia Law School professor Tim Wu, copyright trolls acquire portfolios of old copyrighted songs, sometimes even using fraud and deception to grow their catalogs. Copyright trolls then search for, and sue, entertainers incorporating samples, no matter how small, of the old songs in their new songs.

In his article in Slate, Professor Wu describes a recent case where Bridgeport Music Inc., a one man shop, has accused recording artist Jay-Z, of infringing Madonna's "Justify My Love," with his single "Justify My Thug." How can a small company like Bridgeport, without any employees or reported tangible assets, take on a Goliath in the recording industry? Well, Bridgeport does have a rather impressive portfolio of copyrights, and it has been using these copyrights much to the benefit of its pocketbook and the chagrin of entertainers.

Will copyright trolls forcing entertainers to constantly look over their shoulders and seek pre-approval of copyright lawyers may stifle creativity? Only time will tell.

Brett Trout

Other Related Topics:
Copyright, Copyright Troll, Jay-Z, Bridgeport Music, Madonna

Keep Your Nose Off My Smell

The global marketplace comprises thousands of languages. Thankfully intellectual property protection for sounds and smells now transcends polyglotonomy (ok I just made that word up). The race to protect sounds and smells with trademarks and copyrights is definitely heating up. Countries like China are filing new trademark applications in record numbers, looking to snatch up heretofore unprotected intellectual property such as sounds and smells.

Last March, Member States of the World Intellectual Property Organization (WIPO) thought the issue was important enough to include provisions for "non-visible" trademarks in the latest international treaty. The Singapore Treaty on the Law of Trademarks now defines a framework for reproducing of non-visible marks, such as sound and smell marks.

For more info on this burgeoning topic, check the TTABlog’s post on the protection of sound marks and and this WIPO article on obtaining a copyright on a smell. The TTABlog also has a link to a comprehensive article by Kevin McCormick published in the Sept-Oct edition of The Trademark Reporter on the registration of sounds as trademarks. Very interesting reading -- even if you are not a trademark lawyer.

Brett Trout

Other Related Topics:
Trademark, Singapore Treaty, Trademark Sounds, Trademark Smells, Copyright Smells

Da Vinci Code survives allegation of copyright infringment

Last April a British Court ruled that Da Vinci Code author Dan Brown did not infringe the copyright of the 1982 book Holy Blood Holy Grail. Brown received more good news last Monday when the United States Supreme Court declined to hear another case alleging the Da Vinci Code infringed the copyright on Lewis Perdue’s book “Daughter of God.” Although various experts submitted affidavits that they believed the infringement was overwhelming, the lower court ruled that no reasonable juror could find infringement. The ruling has been upheld on appeal.

Brett Trout

Other Related Topics:
Dan Brown, Da Vinci Code, Daughter of God, Supreme Court, Copyright

Brett Trout Speaking in Des Moines

Are you planning on being in Iowa or the Des Moines area Thursday or Friday of this week?

Are you interested in Internet related legal issues? Do you travel the country stalking patent lawyers at speaking engagements? Well this is your week. I will be speaking in West Des Moines tomorrow at 2:45pm to the Iowa Society of Association Executives. The topic will be Top Ten Internet Mistakes that Can Shut Down Your Association’s Website. I ran across a related topic on Rush Nigut's website today entitled five ways to avoid lawsuits against your business. Good stuff!

I will be speaking in downtown Des Moines Friday at 11:15am to the Polk County Bar Association. The topic will be YBlawg: Why legal clients love blogs. For more information, or to obtain a guest invitation to either event, please contact me. Hope to see you there!

Brett Trout

Other Related Topics:
Brett Trout, Associations, CLE, Iowa, Des Moines

Why Lawyers Should Not Blog.

In states like Iowa, which have very strict advertising rules, blogs are one of the only ways attorneys can openly provide information to the public. Blogging is one of the fastest and easiest ways for lawyers to get their message across. Given the low cost and high impact of lawyer blogging shouldn't all law firms be blogging?

No. The culture of some law firms is simply not conducive to blogging. Blogging simply emphasizes the firm culture. If the law firm is filled with quality attorneys, blogs will are beneficial, not only to the law firm, but to their clients as well.

If the firm has its share of overbilling, underqualified lawyers who would have difficulty practicing their way out of a wet paper bag, however, it is a different story. In a law firm which routinely oversells and underdelivers, a blog would simply make this apparent to prospective clients BEFORE they hired the law firm. It would also provide clients a forum to comment on the job they believe the law firm did for them.

As a general rule, a law firm should probably not blog if one or more of the following factors apply to the law firm:

Scared what the attorneys might say
Lots and lots of secrets
Right hand does not know what the left is doing
Figure the less clients know the better
The lawyers are bad writers
The firm lacks personality
The lawyers lack smarts, honesty, talent etc.
The lawyers at the top are control freaks
Firm does not work and play well with others
Lacks basic communication skills
Culturally neither open nor transparent
Not concerned about clients once they are in the door
Scared what past clients will say
Lots of disgruntled employees
The firm is pure evil ('cause you cannot fool the Blogosphere forever)

Is YOUR lawyer blogging?

If not, you might want to ask yourself if one of the forgeoging reasons is to blame.


Brett Trout

Other Related Topics:
Lawyer, Reasons not to blog, Lawyer Blog, Customer Service

YBlawg Seminar a Success

Thanks to Mike Sansone and Sandy Renshaw of Bizolution for helping Rush and me make Lawpportunities' first YBlawg Iowa Lawyer Blog conference such a great success. Although we plan on making this an annual event, if you would like to hear us in a town near you, let us know. If we get enough people interested for another YBlawg conference right away, we can be available pretty much anywhere, anytime!

Brett Trout

Other Related Topics:
Lawpportunities, YBlawg, Attorney Blog, Des Moines, Rush Nigut

Des Moines Microsoft case attracts national spotlight

Radio personality extraordinaire David Lawrence graciously invited me to be his guest on The David Lawrence Show last Wednesday night. We had a lively discussion of the Microsoft case going to trial in Des Moines on Monday.

XM Satellite Radio carried the show live on Open Road 171 and Sirius Satellite Radio carried the show live on Sirius Stars 102. If you missed it, check out the podcast. Thanks again to David and Lili for putting on such a great show. Especially for putting such a nice polish on this ol' patent attorney!

Brett Trout

Other Related Topics:
Microsoft, David Lawrence, Online Tonight, Brett Trout, Des Moines

Is your patent lawyer padding your bill?

While there is the occasional, isolated case of an attorney admitting his or her firm is padding bills, such direct proof is rare. Without direct proof, you are left with circumstantial evidence from which you must draw your own conclusions. Some things you want to find out BEFORE you hire a patent attorney are:

1) What is the smallest increment of time the patent attorney bills? A tenth of an hour is okay. A quarter hour is not.

2) Does your patent attorney ever bill for two projects at the same time. For instance, if the attorney is billing a client for flight time to a deposition, will he or she bill another client for work done for that client during the flight?

3) Does your patent attorney bill for work done previously? If the law firm created a similar contract for another client, are you billed only for the new work done to the template?

4) Are any attorneys in the firm required to bill 2000 hours or more per year? With administrative duties, breaks, continuing legal education obligations, firm meetings, marketing and introductory client meetings, such billing minimums practically require bill padding.

5) Are you charged for any aspect of the billing procedure or disputes/questions about bills? You should not be billed for asking questions about your bills. If your patent attorney has to argue about your bills on his own time, you are likely to get a more comprehensible invoice.

6) Does your patent attorney itemize every item on your bill? While you likely do not a detailed itemization for flat fee projects, hourly projects should be exhaustively detailed.

7) Does the firm make sure your work is done by the lowest billing attorney on the project capable of doing the work (or at least bill at that rate for the work)? This would only apply to projects utilizing multiple attorneys. It is typically unwise and not cost effective to get a low cost associate involved for a few hours just to reduce the bill.

8) Does your patent attorney offer alternative billing arrangements? Alternative fee arrangements such as flat fee, value billing and success billing are all options worth investigating for the right project.

Tomorrow. How to avoid bill padding.

Brett Trout

Other Related Topics:
Lawyers, Bill Padding, Alternative Billing, Ethics, Patent Lawyer

Is your patent lawyer padding your bill?

According to Rees Morrison, author of the blog Law Department Management, last year gave rise to a significant increase in the perception that law firms pad their bills.

In 2005 36% of corporate counsel surveyed agreed that most law firms pad their bills. 28% were neutral. By 2006, those numbers jumped to 42% and 24% respectively. While Morrison notes there are some concerns that the 2005 survey results may have raised awareness of the issue, and possibly skewed the 2006 results, the overall perception is still very real.

While the question referred to lawyers in general, the questions are particularly relevant to patent lawyers. While I would like to think patent lawyers are less likely to pad their bills, it is probably more difficult to tell if they do. The complexity of the work and the ever-changing governmental fee structure associated with protecting intellectual property makes reading bills from your patent lawyer almost impossible.

Even if your patent lawyer were padding your bill, there is little likelihood that you would ever find out for sure. I myself have never heard of any attorney admitting to padding a bill even when the actual bill appears to indicate some type of hole in the space-time continuum. The funny thing is that while law firms prohibit bill padding, the billing requirements some firms place on their lawyers makes bill padding nearly inevitable. So how do you know if your patent attorney is padding your bill?

Tomorrow. Some clues that you bills may be padded

Brett Trout

Other Related Topics:
Lawyers, Bill Padding, Ethics, Patent Lawyer

The Gospel of Blawg

Des Moines Business Record writer Jason Hancock has just authored a new article for the Business record entitled, The gospel of blawging. As you may remember, Mr. Hancock is also the author of last week's breaking story on Microsoft eliminating a legal damage theory by which Iowa class-action plaintiffs had hoped to collect damages associated with the loss of the "benefits of software innovation."

The new article on lawyer blogging, or blawging as it is sometimes called, highlights the benefits of blawging to both lawyers and clients. Citing a Harris Interactive poll, the article notes that more Americans use search engines to find a lawyer than any other method. Blawging helps attorneys rank higher in Google, making it easier for clients to find them. Incorporating quotes from fellow Iowa blawg guru Rush Nigut and your humble blog writing patent attorney, the article lauds the ability of blawgs to demonstrate a firm's expertise, while giving potential clients a sense the lawyer's personality.

I would like also like to thank Mr. Hancock for the kind words about the Lawpportunities Yblawg seminar coming up this Friday in Des Moines. Do not be discouraged if you are currently blogging. Although nearly 40% of large law firms are blogging nationwide, almost no Iowa firms, other than Sullivan and Ward and my firm, Brett J. Trout P.C., have capitalized on this fantastic opportunity. If you have not signed up yet, it is not too late. The fact that almost no Iowa lawyers are currently blogging, makes blogging all that more valuable to you and your clients.

If you want find out how to make it easier for potential clients to find you in markets they are searching, sign up for Yblawg today.

Brett Trout

Other Related Topics:
Des Moines, Blawg, Iowa, Business Record, YBlawg, Lawpportunities

Iowa Judge rules in favor of Microsoft on "innovation" claim

Jason Hancock of the Des Moines Business Record reported this afternoon that Polk County District Judge Scott Rosenberg has ruled Microsoft Corp. cannot be liable for damages based upon the denial of "free choice" and loss of the "benefits of software innovation."

Although Rosenberg ruled against Microsoft on eight of nine motions attempting to limit damages in the case, the one ruling in Microsoft's favor appears to be key.
While plaintiffs' attorneys feel the Iowa case is still very viable, Microsoft believes Judge Rosenberg's ruling now makes the Iowa case just like all the other Microsoft antitrust cases which have either been settled or dismissed.

Brett Trout

Other Related Topics:
Microsoft, Antitrust, Iowa, Des Moines

Do You Have the Right Stuff to be a Patent Lawyer

Ever longed for state of the art gadgets, international intrigue, fast cars, luxurious condos, beautiful women and exotic locations? Think you have what it takes to be a real patent lawyer? Well then, my friend, this free audio presentation from Practicing Law Institute may be just what you are looking for. Presented by Katharine C. Patterson of Patterson Davis Consulting of San Francisco, California, the lecture discusses:

What is a patent?
What it takes to become a patent attorney?
What it means to say you're a patent attorney?
What your options are as a patent attorney?
And what a patent attorney's work is like?

I must have stepped out of the room when they discussed the international intrigue, fast cars, luxurious condos, beautiful women and exotic locations, but as no discussion of patent lawyers would be complete without hitting those topics, I am sure they are well covered. Trust me. I'm a patent lawyer.

Brett Trout

Other Related Topics:
Patent Lawyer, PLI, Patent