Iowa Supreme Court Rules on Internet Child Pornography Case

Lawyer, radio personality and law blogger George Davison has an interesting post on how the Iowa Supreme Court recently interpreted Iowa's laws relating to sexual exploitation of a minor.

The case involves a Marshall County man, Randall Muhlenbruch, whose wife turned him into authorities after discovering child pornography on his computer. Prosecutors found 348 images of child pornography on Muhlenbruch's computer and charged him with 10 counts of sexual exploitation of a minor. Iowa Code section 728.12(3) states, in part:

3. It shall be unlawful to knowingly purchase or possess a
negative, slide, book, magazine, computer, computer disk, or other
print or visual medium, or an electronic, magnetic, or optical
storage system, or any other type of storage system which depicts a
minor engaging in a prohibited sexual act or the simulation of a
prohibited sexual act.

Despite Murdoch having 348 images on his computer, the district court held, and the Iowa Supreme Court upheld, the dismissal of nine of the ten counts. The Supreme Court held that as long as the images were only on a single computer, there could only be one violation of Section 728.12(3). Check out George's post for more analysis of this ruling.

Brett Trout

Internet pornography child pornography Iowa Supreme Court

Internet Jurisdiction - Introduction

What is jurisdiction and why should you care? Jurisdiction is whether a particular court has the power to hear a case. Jurisdiction is often an issue in Internet related cases, since the parties both want to have the case heard in their own back yard. Not only is “home field” advantage a factor, but the costs of not having to travel (or, more importantly, not having to have your lawyers travel) can give you the added resources to see a trial through to the end or leverage settlement negotiations.

There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. While the parties have the power to waive personal jurisdiction, they cannot waive subject matter jurisdiction. Indeed, if the parties fail to timely assert a lack of personal jurisdiction at the outset of a case, they may be deemed to have waived the issue. Conversely, either party can raise the issue of subject matter jurisdiction at any time.

Because a lack of subject matter jurisdiction may wrest a case from a judge, even after years of work, judges are rightly fanatical about assuring subject matter jurisdiction exists before proceeding with any other matters. To avoid having your case tossed out of court, it is often advisable to provide the court with multiple reasons why it has subject matter jurisdiction. Therefore, even if the other side is able to kick out one of your reasons near the end of trial, the court still has justification for ruling on the case.

Brett Trout

Internet jurisdiction Cyberspace Lawyer Internet Litigation

Venture Capital for Iowa Inventors

Check out Rush Nigut's podcast with Adam Steen of Transition Capital Management. Adam discusses matching Iowa entrepreneurs with the capital and resources they need to bring their ideas to market. It might surprise you that even more than money, most entrepreneurs need expert help with their business model before they can even consider obtaining investment dollars.

Brett Trout

Rush Nigut Adam Steen Venture Captital

Microsoft Hit With Largest Patent Jury Award in US History

Thursday, a jury in a Federal San Diego courtroom found Microsoft liable for infringing Alcatel-Lucent patented audio technology to the tune of $1.52 billion. Had the judge found Microsoft's infringement to be willful, United States patent law would have allowed the judge to triple the damage award.

Microsoft appeared surprised at the verdict, especially after having licensed the infringing technology from the German company Fraunhofer for $16 million. Microsoft went on to lament the effect the verdict would have on the digital music industry. The market, however, just seemed happy it was over, with the stock of both companies gaining ground after the verdict.

Brett Trout

patent Microsoft Alcatel-Lucent infringement

Law Firms - Small is the New Big

Almost two years ago Seth Godin blogged small is the new big. Although not entirely novel, the concept gained so much momentum that Seth turned it into a best-selling book. Now, six months after the book's release the concept is taking the legal community by a storm.

Prior to 1990 it was difficult for small law firms to compete with much larger firms. Large law firms enjoyed economies of scale. Large law firms also had their own unique problems, however, such as higher fees, high attorney turnover rates and one-size-fits-all policies for dealing with clients. Until ten years ago, however, the economies of scale still outweighed the drawbacks.

As with most things, the Internet has changed the practice of law. The automation of tasks such as ordering supplies, filing electronically and managing virtual documents has leveled the playing field. The Internet's facility of communication has tipped the balance in favor of small law firms. If you have a question for your patent lawyer are you going to drive to their office, or are you going to use email or pick up the phone? In today's world time is of the essence. Clients want answers now.

Small law firms have always had to be responsive to survive. Personal service and the ability to treat each client as an individual is what separates them from the big guys. Now that the Internet allows small law firms to outsource or automate their former drawbacks, they are quickly moving to the front of the pack. Whereas small firms used to try to emulate large firms, large firms are now coming to small firms for advice on how to provide better client service.

The Internet has changed clients' expectations. The Internet provides clients with the ability to research the law and their attorneys. Clients know that they do not have to accept the one-size-fits-all legal service. Clients want legal services specifically tailored to their needs. Armed with online information clients are demanding lower costs and better responsiveness. Clients are demanding personal service, and small law firms are listening.

For hundreds of years large law firms have dictated to clients how they will offer legal services. Now, with the Internet, clients now have the ability to demand the legal services they want. Large law firms are coming to this realization, but have been slow to act. It is obviously much easier to turn a speed boat than the QEII. Fortunately, small law firms have already adapted the new paradigm and are using it to provide more responsive, more personal service to their clients. Ask yourself "Is my law firm servicing me, or am I servicing my law firm?"


Brett Trout

Cruising around the Internet I found a lot of discussion on the topic going back to Seth's original post. For additional reading on the topic, check out these posts:

Patent Baristas
Blawg's Blog
My Shingle

Texas Law Blog






Seth Godin Small is the New Big Law Firms Legal services Law Firm Marketing

Apple Out of the Frying Pan

Apple and Cisco have dropped their hotly contested lawsuits over the iPhone trademark. The companies have agreed that they both can use the iPhone trademark anywhere in the world. The companies have also agreed to investigate "opportunities for interoperability in the areas of security, and consumer and enterprise communications."

I am not privy to the exact terms of the agreement. Were I to hazard a guess, however, I believe the terms of the agreement could be paraphrased something akin to the following:

We know Cisco filed for a trademark on iPhone in 1996. Cisco. however, may not have actually sold an "iPhone" in commerce until December of 2006. We could both fight over the iPhone trademark for the next ten years. Although that would indeed facilitate our outside trademark lawyers being able to finally put those down payments on that majestic archipelago just off the coast of Greece, it would not really do Cisco or Apple much good. Wherefore (we say stuff like that because we are lawyers and assume you expect us to justify our hourly fee by being at least a little cryptic) both parties agree that a lawsuit would be bad. Therefore, in return for both parties dropping their respective lawsuits, Apple agrees to slip Cisco a sweetheart deal with regard to the iPhone gravy train.

Realize, of course, this is merely my own speculation, based upon nothing more than my own belief, opinion and whole cloth. It strikes me however much like the recent settlement in the Iowa Microsoft case settled right here in Des Moines. Companies are finally realizing litigation eats up a lot of the pie. It is often better to have a small piece of the huge pre-litigation pie, than the entire post-litigation pie (purple-fingered lawyers in the corner notwithstanding).

But wait; it is not over yet. Now Quantum is warning Apple of a potential patent lawsuit. Quantum has warned Apple that if the iPhone proximity detection feature works like Quantum's patented device there could be trouble. Whatever happens, I just hope they put the trial on Youtube so I can stream it through on my new iPhone.

Brett Trout

Cisco Apple Quantum iphone trademark patent

Collective Trademarks

What is a “collective” trademark? A collective mark is a trademark used by the members of a group to indicate association with that group. Popular collective trademarks include American Bar Association, Realtor Associate, Rotary International, American Institute of Certified Public Accountants, as well as the names of various fraternities and sororities. A collective trademark, may also indicate membership in an organization, such as a union or a cooperative.

The United States Patent and Trademark Office reviews collective trademark applications the same way they review other trademark applications, using generally similar registrability criteria. Rules regarding things like descriptiveness and disclaimers are identical. The required specimens showing use of the collective mark are a little different. Specimens for a collective mark registration must show the collective mark used by a member, on, or in connection with goods or services offered by the member. Unlike typical trademarks, collective trademarks are not used by the owner of the trademark and specimens showing use by the owner are insufficient to demonstrate the requisite use for federal registration.

When applying for federal registration of a collective trademark, the owner must indicate that the owner is, or intends to, exercise legitimate control over the use of the collective trademark in commerce by its members. Unlike typical trademark applications, for a collective trademark application, the owner must specify who can use the trademark, the nature of the relationship between the owner and the users and how the owner is controlling the use of the collective trademark.

If the owner’s bylaws or other written policies detail how the owner is controlling the use of the trademark, it is sufficient to state this in the application. Otherwise, a written statement, such as “Applicant controls the use of the mark by the members in the following manner: [specify how owner is controlling the use of the trademark]” is acceptable

To protect the public from unauthorized use of a collective mark, it is important for the collective mark owner to detail, in a written policy, the following information:

• The exact trademark and specifications for how it is to be used;
• Identification of the owner of the collective trademark;
• Identification of members allowed to use the collective trademark;
• Membership criteria;
• How the owner controls the use of the collective trademark; and
• The consequences of unauthorized use of the collective trademark.

As collective marks are a little different, and involve a little more technicality, it is best to discuss your proposed collective trademark use with a trusted trademark attorney before proceeding with use or registration of the trademark.

Brett Trout

collective mark collective trademark trademark office trademark lawyer

Iowa Volunteer Lawyers for the Arts Project

Matt Krigbaum of the Moyer & Bergman law firm in Cedar Rapids has been working tirelessly for the last two years to get Iowa’s Volunteer Lawyers for the Arts (IVLA) project up and running. The IVLA is similar to volunteer lawyers for the arts projects such as those located in New York, California, Texas and many other states.

I would encourage all Iowa attorneys with an interest in the arts and helping others to contact Matt and help volunteer their time to the IVLA. The IVLA needs assistance from intellectual property lawyers, but also real estate lawyers, contract lawyers and just about any kind of lawyer as well. My experience has been that any assistance you can provide will comeback to you many times over.

Even if you are not a lawyer, I would like to invite you to support all Iowa artists. I would also like to take the opportunity to showcase the above work of art, painted by Iowa’s own Nancy Lindsay. Ms. Lindsay just completed this fantastic painting of me taking the Esses at Donnington Park. As such a small format cannot do this magnificent painting justice, I would invite you to visit our offices in person to fully appreciate this grand work of art. Thank you Nancy!

Brett Trout


Nancy Lindsay artists IVLA Iowa

Justia Federal Docket Search

Thanks to Robert Ambrogi for directing me to Justia's Federal District Court Filings and Docket system. Justia, the website created by Tim Stanley, the wunderkind behind Findlaw's Glory Days, now allows you to search federal dockets by state or subject area. Whether you are interested in searching Iowa dockets or intellectual property cases be sure to give Justia's new bells a test jingle.

. . .and thanks for the Valentine's Day link love!

Brett Trout

federal law docket search Ambrogi intellectual property Justia

Iowa Microsoft Case Settles

Microsoft and Iowa lawyer Roxanne Colin have announced a settlement in their seven year long, $453 million, class action lawsuit. Yesterday's settlement remains confidential pending court approval - slated for hearing on April 20, 2007. Both parties touted the benefits of the settlement terms to consumers. Plans are to publicly disclose the terms of the settlement this spring.

Although neither party is disclosing the settlement, a few specifics have been disclosed. The settlement covers customers who purchased Microsoft operating systems and programs like Windows 95, Windows 98, Windows XP, Word, Excel and Office from May 18, 1994, through June 30, 2006. Under the terms of the settlement, the Iowa Department of Education receives half of all unclaimed settlement proceeds to assist Iowa schools in purchasing computers and software.

Although what prompted the settlement is unknown, I have a sneaking suspicion that Judge Rosenberg's dismissal of Roxanne Conlin's "loss of the benefits of software innovation" claim was a key determinant in plaintiff's counsel adjusting her assessment of her best alternative to a negotiated agreement. While it is nice to have an extra Polk County courtroom and judge for the next six months, I will hold off on putting my down payment on a Bugatti Veyron until I actually see my end of the settlement. I wonder if the Bugatti dealership takes Microsoft vouchers.

Brett Trout

Microsoft lawsuit antitrust Des Moines Iowa settlement

Des Moines Patent Lawyer Radio Interview Tonight

Do not forget to tune into 98.3 WOW FM tonight where my favorite Des Moines patent lawyer will be the featured guest on Jim Goodman's Iowa Business Hour. Here is your chance to pick a patent lawyer's brain for free! Call in with all of your patent, trademark, copyright and Internet legal questions.

The Iowa Business Hour focuses on taking your business to the next level. For many companies, intellectual property, like trademarks, copyrights and trade secrets, are their most valuable asset. Unfortunately, some companies never take the steps to protect these assets until it is too late. Tune in tonight to find out what intellectual property your company has and the best way to go about protecting it.

While I will not be doling out specific legal advice, I will be giving general guidelines to help you ask the questions you need to be asking. Do not wait until an intellectual property issue cripples your company. Tune in tonight, call in and ask some questions. You will be glad you did.

Brett Trout

patent lawyer Des Moines Iowa Business Hour Brett Trout

Corporate Insights - RushOnBusiness Podcasts

Iowa business lawyer Rush Nigut is generating mucho buzzo over his RushOnBusiness podcasts. Each half hour podcast shares insight from a captain of industry. New podcasts will continue to cover all aspects of running a business, from legal issues to putting your corporate ducks in a row. Rush's most recent podcast with Matthew Ashburn covers preparing your business for sale.

Take a listen. If you like them, tell Rush to keep'em coming. Also, if you are a business leader, or know a business leader who might have some knowledge to share, let me know and I will do what I can to help transform that knowledge into a RushOnBusiness podcast.

Brett Trout

Rush Nigut Iowa Corporate Attorney RushOnBusiness

Dippin' Dots patent Held Unenforcable

The Court of Appeals for the Federal Circuit ruled Friday in Dippin’ Dots, Inc v. Mosey that the Dippin' Dots patent number 5,126,156 is unenforceable. The Federal Circuit based its ruling on the fact that Dippin’ Dots made sales of its product more than one year prior to filing its patent application and failed to disclose this information to the United States Patent and Trademark Office.

This ruling emphasizes the importance of filing a patent application BEFORE disclosing your invention. Although the United States grants a short grace period within which to file your patent application after disclosure, failure to timely file a patent application places the invention into the public domain. In the event you do obtain a patent, as did Dippin' Dots, failure to disclose a prior sale may, at best make the patent unenforceable, and, at worst, subject you to huge liability for antitrust violations.

Also interesting is the Federal Circuit’s ruling in the Dippin’ Dots case which drastically limited the coverage afforded method claims. These new technicalities will certainly give patent lawyers all over the country fits and should dissuade any inventor attempting to draft patent method claims without the aid of a well-qualified patent lawyer.

On the upside, your next purchase of Dippin’ Dots this summer may no longer require you to take out a second mortgage on your house.

Brett Trout

dippin dots federal circuit patent lawyer invalidity patent

Pretexting - What You Don't Know Can Hurt You

Someone calls you telling you they are conducting a survey for a product you use regularly. After a few innocuous questions, they start asking about your social security number or banking information. They may even state that you are eligible for a prize or drawing, but require your credit card information for eligibility reasons. Is this normal? Is it legal?

Collecting information for one reason under the pretext of another is illegal. While pretexting has always been an invasion of privacy (see the Restatement 2d of Torts § 652C) The Gramm-Leach-Bliley Act makes it illegal for anyone to:

1) use false, fictitious or fraudulent statements or documents to get customer information from a financial institution or directly from a customer of a financial institution;
2) use forged, counterfeit, lost, or stolen documents to get customer information from a financial institution or directly from a customer of a financial institution; or
3) ask another person to get someone else’s customer information using false, fictitious or fraudulent statements or using false, fictitious or fraudulent documents or forged, counterfeit, lost, or stolen documents.

Note that you can be liable for a pretexting violation even if you are not collecting the information yourself. If you purchase customer information from a pretexter, you are in violation of the law as well. Under the Federal Trade Commission Act (FTCA) 15 U.S.C. § 45, the Federal Trade Commission also has the authority to intervene and stop any deceptive act or practice affecting commerce.

Unscrupulous companies use information obtained through pretexting to commit identity theft. The most common forms of identify theft include: credit card fraud, communications services fraud, bank fraud and loan fraud. The best defense against pretexting is to make everyone in your company aware of the threat. Do not give out confidential information to people who contact you; any legitimate entity would already have the information they are requesting. Review all of your statements promptly and contact your providers immediately if you identify any irregularities. Dispose of all confidential information properly. A paper shedder is often your best defense against identity theft.

Most importantly, if you purchase consumer information from third parties, make sure you are not purchasing from a pretexter. Which pretexters are often very stealthy about their activities and take extreme measures to avoid getting caught by the authorities, they are often not nearly as cautious when it comes to protecting those who purchase information from them.

Brett Trout

pretexting FTC identity theft Gramm Leach Bliley

Big Apple Takes a Bite Out of Des Moines

Hollywood actor turned Des Moines bartender, Clint Curtis has been livening up Monday nights in Des Moines with his iPod Mondays. Every Monday night for the past two years a few dozen iPod owners have gathered at the Des Moines bar “The Lift” to share music and knock back a few brews.

Not wanting to do anything untoward, Curtis contacted Apple about using the name and sent Apple regular iPod Monday updates. Curtis received no response from Apple despite the fact, according to Curtis, that iPod Mondays have helped sell more iPods than any employee at the entire West Des Moines Apple store.

Everything was going well, Apple selling iPods, Curtis enlivening Des Moines nightlife, music lovers having fun. Then some trademark lawyers decided squashing an iPod evangelist was more important than customer good will. Apple representative Pete Alcorn fired off a cease and desist letter to Curtis demanding that he not use any variant of an Apple trademark in association with his weekly Des Moines meetings.

Unless Curtis hits the lottery, I doubt he will have the resources to test the merits of Apple’s position. Just chalk it up to another hip company turning on its loyal fans. Kneeing the little groupie in the neck seems to undermine the most recent Apple ad campaign - at least a little.

Maybe one day I can be big enough that I can afford to bully my loyal customers. Here’s to crossing my fingers that this trademark attorney never gets that big in the britches.

Brett Trout

iPod Mondays Des Moines Apple Clint Curtis

Brett Trout on Iowa Business Hour 98.3FM

Join me next Wednesday on 98.3 WOW FM where I will be the featured guest on the Iowa Business Hour with host Jim Goodman. What more romantic way to spend Valentine's Day than snuggled up by the fire with that special someone, listening to your favorite Des Moines patent lawyer wax philosophic on the wonders of Internet legal issues (excuse me while I grab a tissue).

The Iowa Business Hour focuses on the 4 M’s of successful business, namely: Money, Management, Marketing and Model. Host Jim Goodman is President of Emerging Growth Group (EGG), an investor-backed for-profit Des Moines area business development company.

Jim and I will be happy to take call-in questions from both you and your sweetie, but I cannot take responsibility if things get out of hand.

Brett Trout

patent lawyer Des Moines Iowa Business Hour Brett Trout

Provisional Patent Applications - an $85 Nightmare?

How does an $85 patent you file yourself sound?
All you need to file a provisional patent application is:

1) The filing fee;
2) A written description of the invention, complying with all requirements of 35 United States Code §112;
3) Any drawings necessary to understand the invention, complying with 35 United States Code §113
4) A cover sheet containing:

a. the application as a provisional application for patent;
b. the name(s) of all inventors;
c. inventor residence(s);
d. title of the invention;
e. name and registration number of attorney or agent and docket number (if applicable);
f. correspondence address; and
g. any United States Government agency that has a property interest in the application.

Since 1995, the United States Patent and Trademark Office (USPTO) has offered inventors the opportunity to file a provisional patent for $85. The major difference between a provisional patent application and a standard utility patent application is that a provisional patent application does not need to include “claims.” As inventors typically must enlist a patent lawyer to draft the claims, by avoiding the claims, inventors can avoid patent lawyers and the associated costs. This primary advantage of a provisional patent application is also its greatest drawback.

Claims are the very heart and soul of a patent. Claims determine the scope of a patent, whether it is good or bad, broad or narrow. As you might imagine, drafting claims is very technical. Additionally, the drawings and rest of the patent have to support the claims. If you do not have the claims, how do you know what you need to support? Even with their specialized training, patent lawyers find drafting claims and anticipating the necessary support to be very difficult. I myself, even after a decade and a half of drafting over one thousand claims still have to draft the claims first.

If you file a provisional patent without claims, to preserve your filing date, you can only add claims fully supported by your application and drawings. If a patent lawyer would balk at such a task, it might be wise to reconsider a provisional patent. You still may get a patent, but the provisional nature of your application may irreparably compromise the value of your patent.

The USPTO offers these additional drawbacks associated with provisional patents applications:

1) The USPTO does not examine provisional applications on their merits;
2) You cannot get a patent based upon your provisional application if the one-year deadline for filing a non-provisional application has expired;
3) Provisional applications cannot claim the benefit of a previously-filed application, either foreign or domestic;
4) In order to obtain the benefit of the filing date of a provisional application the claimed subject matter in the later filed non-provisional application must have support in the provisional application;
5) The inventor(s) named in the provisional application must have made a contribution to the invention as described. If multiple inventors are named, each inventor named must have made a contribution individually or jointly to the subject matter disclosed in the application;
6) The non-provisional application must have one inventor in common with the inventor(s) named in the provisional application to claim benefit of the provisional application filing date;
7) A provisional application must be entitled to a filing date and include the basic filing fee in order for a non-provisional application to claim benefit of that provisional application;
8) There is a surcharge for filing the basic filing fee or the cover sheet on a date later than filing the provisional application;
9) Provisional applications for patent may not be filed for design inventions;
10) Amendments are not permitted in provisional applications after filing, other than those to make the provisional application comply with applicable regulations;
11) No information disclosure statement may be filed in a provisional application; and
12) A provisional application cannot result in a U. S. patent unless one of the following two events occur within 12 months of the provisional application filing date:

a. a corresponding non-provisional application for patent entitled to a filing date is filed that claims the benefit of the earlier filed provisional application; or
b. a grantable petition under 37 CFR 1.53(c)(3) to convert the provisional application into a non-provisional application is filed.

That is quite a list. If all you want is the ability to say your invention is "patent pending", and you do not care about protecting your invention, a provisional patent application is probably the way to go. Otherwise, next to signing up with an invention promotion scam, filing a provisional patent may be the worst mistake you ever made. The false sense of security of a provisional patent application might be enough to put your hard earned invention into the public domain.

Brett Trout

provisional patent uspto patent lawyer public domain

Accelerated Patent Examination a Bad Bet

Boy, do I love it when I am right. I have blogged in the past about the United States Patent and Trademark Office’s (USPTO) new Accelerated Examination procedure for patent applications. Faster applications sounds like a great idea for both the inventor and the USPTO. Right? Well, half right anyway.

As a patent lawyer, whenever I see the USPTO making rule changes it makes the hair on the back of my neck stand on end. This one had me looking like I had my hand on a Van De Graaf generator (Sorry for the geek reference. Non-geeks feel free to look it up in Google Images). Right out of the blocks I blogged about the dangers of filing under the Accelerated Examination procedure. I have not recommended the procedure to any of my clients and have not filed any accelerated examination applications on their behalf.

Patent lawyer Stephen Nipper of The Invent Blog blogged recently about the USPTO denying the entire first round of Accelerated Examination patent applications. Although the veracity of the anonymously quoted source’s statement "Absolutely No Applications" were approved out of the first batch is questionable, I have no doubt the numbers are extremely high. The sample rejection noted in Nipper’s blog indicates that the USPTO is rejecting accelerated examination applications because the patent lawyer failed to conduct a preliminary search in the appropriate USPTO patent classes and subclasses.

The problem is that until the patent lawyer receives the rejection accelerated examination application, he or she would have no idea what the USPTO considers, in its highly subjective opinion, to be the appropriate classes and subclasses. Given the subjectivity of such an analysis, the USPTO could indeed reject every single accelerated examination application. I will leave it to patent lawyers with more hubris than I possess (assuming some exist) to prove the error of that theory.

Now, if we could just do something about the provisional patent application . . .

Brett Trout

USPTO accelerated examination patent patent applications patent lawyer

Bar Associations - Revenue vs. Members

My Shingle has an interesting blog post on Bar Associations providing links to attorney websites not by quality or need, but based upon fees paid to the Bar Association. While I do not have a problem with Bar Associations charging for advertising, the advertising should be clearly marked as such.

A bigger concern is Bar Associations that choose revenue over the interests of their own members or the general public. In the area of Continuing Legal Education (CLE), for instance, Bar Associations must be extra careful in promoting their own CLE programs. Bar associations must try to offer their members the best and broadest CLE offerings at the most affordable cost. Bar Associations should use online CLE to showcase their OWN state's lawyers. While buying canned online CLE presentations from out of state lawyers may increase revenue, it does a grave disservice to the members of the Bar and to the public.

Bar Associations should go even further by offering online CLE programs to the public for free. Such offering would not diminish the revenue stream. Offering free online CLE to the public helps the public learn more about the law. If the CLE showcased Bar Association members, the program would also foster goodwill and familiarize the public with attorneys of their own state. Offering CLE only from out of state attorneys gives the impression their are no local attorneys capable of handling things.

Limiting competition, shunning their own attorneys and gouging customers may translate into short term revenue increases for a Bar association. In the long term, however, such actions cannot help but translate into a strong disdain for the Bar, by both its members and the public. A backlash, in the form of precipitously dropping revenue, cannot help but be the result.

What percentage of online CLE offered by your Bar association is provided by attorneys from your own state?

Brett Trout

Bar Association continuing legal education online CLE law attorney lawyer

Request to Mediate a Patent Case Shows Strength

Mediation is probably better suited and more underutilized in patent cases than in any other type of case. Legal expenses in patent cases that go to trial average $1,500,000.00 per side. Even if mediation is unsuccessful in finding a way to increase the size of the pie, it can at least be successful in ensuring the size of the pie eventually divided is not $3,000,000.00 smaller.

Patent litigation translates into a one hand all in poker game with the house taking its $3,000,000.00 cut. Legal fees are not even the worst of it. Damage awards and punitive damages typically exceed legal fees. In addition, the disruption to the company, in terms of monopolization of key personnel during discovery and trial can bring a company to a halt. Companies sometimes invest so much in patent litigation that they cannot back out. They end up staking the entire company on decision of a mercurial jury. What odds of winning do you have to have to make mediation an unattractive option? 80%? 90%? If you think you have a 90% chance of winning a patent case at the time you file suit, you may want to get a second opinion.


Most litigators do not want to admit it, but suggesting mediation shows strength. It takes a party with a very strong fall back position to suggest coming to the table. Think about it. If you have a terrible case would you suggest mediation? You might push hard for a settlement, but do you want to bring in an objective third party to decide your fate? No. You want to mediate a great case. Worst case scenario in a successful mediation, you do not get as much as you would have gotten at trial, but you saved your client seven figures in attorney fees and three years (five or more with appeals) of anguish.

I have been very lucky in litigating patent disputes. Even so, I cannot say that a 100% litigation win is preferable to a successful mediation. I typically advise clients that litigation is advisable only if they would be willing to cut off their toe to force the other side to cut off their foot. You are not going to "win" you just might be less unhappy.

95% of patent cases settle before trial. Once litigation has begun, most settlements occur after discovery, with each party already averaging $800,000.00. Odds are the parties will settle. The only question is whether the parties come to the table fresh-faced and eager, or battle worn and penniless.

In most situations the lawyers wield the control necessary to bring the clients to mediation. Many attorneys, not wanting to appear weak in front of their clients or opposing counsel, shy away from suggesting mediation. Similarly, many clients do not want a patent lawyer that appears to be shying away from a fight. Unfortunately, a self-conscious patent lawyer and a demanding client is not a recipe for success in any patent litigation.

While suggesting mediation might seem difficult, mediation provides both the patent lawyer and the client the latitude to showcase their creativity, negotiation skills, business acumen and experience. Regardless of the outcome, if the patent lawyer and client are both honest, skillful and reasonable, mediation will solidify the attorney-client relationship, bring about a greater understanding of the other side's position and leave the other side with a better understanding of your position. All of these things will help to reduce costs and streamline the patent litigation, even if a settlement is not reached.

And who knows? You might even settle.

Brett Trout

patent mediation patent lawyer patent litigation

Super Bowl Party and Some "Not So" Divine Intervention

It is not divine intervention, but commercials that are driving couch potatoes from the temple. Nielsen ratings reportedly do not measure out-of-home viewings like the one planned this Sunday in Indianapolis at Fall Creek Baptist Church. NFL officials, concerned their $2,500,000.00 30 second commercial ad rates might plummet are forcing Fall Creek Baptist Church to cancel its planned "Super Bowl Bash."

The NFL alleges that using the term “Super Bowl” and charging admission to see the game violates the NFL’s trademark and copyright. Church officials responded that they would stop using the term “Super Bowl” and would not charge admission. That was not good enough for the NFL, however, which alleges the law restricts the church to a screen 55” or smaller. The NFL is apparently referring to Title 17 of the United States Code, Section 110(5). While that code section does refer to a 55” screen, the church would still be in the clear if the church was less than 2000 square feet OR the single television or projector was of a kind commonly used in private homes.

When confronted with an 800 pound gorilla, most people back down without questioning their own rights. Often times a quick call to a patent, trademark and copyright attorney can provide you with ideas on how to do what you want to do without running afoul of the law or of third party intellectual property rights. We typically prefer you contact us BEFORE you get in trouble, but late is preferable to never.

BTW/if anyone from Fall Creek Baptist Church is interested in viewing the game in a 2000+ square foot venue on a 65” television let me know. I will be hosting a 17 U.S.C. §110(5)(A) exception party in Des Moines this Sunday night.

Brett Trout

superbowl nfl copyright infringement television

Super Bowl Law

Title 17 of the United States Code, Section 110(5) states that the following DO NOT constitute copyright infringement:

(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless—
(i) a direct charge is made to see or hear the transmission; or
(ii) the transmission thus received is further transmitted to the public;
(B) communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if—
(i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment, either the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and—
(I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than one audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission or retransmission;
(iv) the transmission or retransmission is not further transmitted beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the copyright owner of the work so publicly performed or displayed;

Brett Trout


Super Bowl nfl copyright infringement television

Blogga Nostra

The Blogga Nostra is meeting again tomorrow (Friday) morning at 8:00 am at Panera in West Des Moines. If you have always admired patent attorneys from afar, but were afraid to ever approach one, here is your chance.

More importantly, if you are a Central Iowa Blogger, or have any interest in starting a blog, stop by for coffee and meet the helpful folks who are actually doing it. If you are not careful, you might get some great blogging insight and some awesome personal and professional contacts in the process.

Brett Trout

Blogga Nostra Central Iowa Bloggers Des Moines blogging

Where's the Patent Lawyer?

Tino Buntic has come up with the blogging equivalent of sliced bread: 2000 Bloggers

Like all great ideas, 2000 bloggers is as simple as it is powerful. Tino lists pictures of 2000 bloggers selected by nothing other than their attention to the blogosphere and responsivness to his offer of help. What you end up with is captains of industry hobnobbing with students, hippies rubbing shoulders with lawyers and hippie lawyers battling their own internal angst.

Just by virtue of the fact that these 2000 Bloggers are now linking to one another, 2000 Bloggers has raised the value of its indivudual blogs, making it even more powerful. (Contact me if you would like a copy of the code to post this incredible mosaic on your own blog).

Because of its diversity, 2000 Bloggers has very little overlapping readership and covers nearly every nook and cranny of the blogosphere. Now that we are all here, the real question is how do we use this awesome power bestowed upon us?

[Indeference to my readers, I have removed the photo montage. If you want to find out more about the 2000 Bloggers project, this website should have all of your answers]