Microsoft Surface

This puts a pretty nifty new face on computing.

Kudos to Brett Rogers for the post.

Brett Trout

Microsoft Surface

Costs of a Patent Lawsuit

Patent lawyer Peter Zura of the 271 Patent Blog has a great post regarding Paul Janicke's study "Patent Litigation Remedies." Peter's post pays particular attention to the costs of patent lawsuits.

Over the last 20 years, the number of disposed cases more than doubled, from 1,013 in 1986 to 2,362 in 2004. The rates of adjudication dipped a bit during this time, going from 19% to 14% during the same period (settlements went from 81% to 86%).

Another interesting statistic from the study, the eBay decision bumped the rate of denials from 16% to 25%.

One statistic I wanted, but could not find, was the average cost of going to trial on a patent infringement lawsuit. Although Peter notes that it costs an average of $4.2 million to try a patent case where the damages are alleged to be in excess of $25 million, I would guess the overall average is substantially less.

Be sure to check out Peter's post, which also has a link to Paul Janicke's PowerPoint presentation on the topic.

Brett Trout

patent patent lawyer patent litigation

Free Money for Minority Inventors

One of the biggest concerns most inventors have when they come to their patent attorney for the first time is "Where to get the money to patent my invention?

Well, if you are an Iowa inventor, business attorney Rush Nigut has some priceless advice. Check out Iowa's Targeted Small Business Assistance which makes loans, and even equity grants, available for amounts up to $50,000 available to women and minority owned start-up companies.

Brett Trout

Minority patent grants venture capital

Top Ten Internet Legal Mistakes Now Online

You might have read my IowaBiz posts on the Top Ten Legal Oversights That Can Shut Down Your Websites Parts I and II. These are a condensed version of an hour long speech I give on the topic.

For those of you who would prefer to see the ninjaesque patent lawyer reflexes that go into giving this speech live, you are now in luck. I gave the entire talk at last month's IgniteIT event in Ames, Iowa. You can check out the speech here, along with Guy Kawasaki's Opening Comments. Let me know what you think. If I get some good feedback, I might post a couple more five minute primers.

Brett Trout

P.S. If I get at least five comments to this post, I will post a secret link to a patent lawyer/ninja FAQ I guarantee will liven your day.

IgniteIT Guy Kawasaki Internet Law

Memorial Day

Lawyer and biker Norman Gregory Fernandez hosts this week's Blawg Review #110 in a salute to all the men and women who have lost their lives in the Service of the United States of America. Mr. Fernandez echos the thoughts of all of us at home during this time of war.

Memorial Day is a day is to remember those brave souls whose willing self sacrifice has given us all a chance to live free in the greatest nation on earth. God bless those men and women who have died in the service of the Untied States of America.

Visit Blawg Review #110 for more on Memorial Day and the service men and women who have sacrificed their lives over the past 230 years in defense of our most prized freedoms. Thank You

Brett Trout

Motorcycle Safety Patents

In honor of lawyer/biker Norman Gregory Fernandez of Biker Law Blog hostingBlawg Review #110, Blawg IT salutes inventors and their motorcycle related inventions. If you read Blawg Review #106, you know I have a certain fondness for two wheels. While I have a won a few plaques racing, I am far from the top of the heap. What I am good at, however, is crashing. I doubt there is anyone on the planet that has had more serious motorcycle accidents without receiving even a bruise. I do not get hurt, not because I take chances, but because I find out what works and what does not.

While I do have an abnormally large amount of on-body cushioning, I cannot credit this for my impunity. Instead, I chalk up my miraculous results to mental and physical conditioning, along with the most practical safety equipment. While some equipment is indeed life-saving, much is more gimmick than science. It can be difficult to separate the wheat from the chaff, especially when you only get to be really wrong once. Motorcycle riders, however, love the gimmicks. It is for these riders that inventors tirelessly churn out wacky motorcycle-related inventions.

Several inventors have patented various types of motorcycle mounted airbags. In my limited experience, slamming into the triple tree has not been a big concern. While there are many other patents on motorcycle airbags, I do not believe any would have been helpful in my motorcycle accidents.

The next type of invention is the airbag in a jacket. While this seems better than the motorcycle mounted version, I cannot see how this would be a factor in most types of motorcycle accidents. I always wear a helmet and spine protector, and credit both for my life. Experiencing the impact these items take in a crash, I cannot see how the airbag jacket could provide similar, let alone better, protection.

In a motorcycle racing accident, my biggest concerns are my neck and my spine. I have buddies that love the danger element, but not me. For me, the safer it is the better. While there are patents on motorcycle neck protectors, most seem too heavy and cumbersome to allow riders the freedom of movement necessary to avoid an accident in the first place.

One model, however, the most recent offering from BMW Motorrad, looks quite promising. The new device is a neck brake which prevents the users head from moving too far forward, backward or laterally. Most importantly, it reduces the transmission of energy from the top of the rider's head, down through the spine. At £325 it seems like a steal. I just hope it makes its way over here to the states in time for my next track-side yard sale.

Brett Trout

motorcycle patents lawyer

Iowa State University - The Biggest Patent Troll on the Planet?

The Des Moines Register ran a story today about the Iowa State University Research Foundation (ISURF) suing Monsanto for infringing patented soybeans. ISURF is the entity which controls Iowa State University patents. Every year ISURF applies for about fifty patents and receives between $2-10 million in patent royalties. As of Fiscal Year 2006, ISURF had 355 active patents, 160 patent applications in process and 690 active license/option agreements.

What is a patent troll? A patent troll is an individual or entity with patents that earns money not through manufacturing a patented product or process, but by threatening other producers into licensing the patented technology. Patent trolls rely on the very high cost of patent litigation (usually $1.5 Million dollars for each side) and low royalty demands to build their coffers. Is ISURF a patent troll?

According to the Association of University Technology Managers (AUTM) 2005 U.S. Licensing Survey, Iowa State University has one of the lowest rates of income per license ($4M/745 licenses) among well-established University Technology transfer departments. According to the ISURF's own 2006 Annual Report, ISURF ranked third among all U.S. Universities in the number of licenses and options signed in fiscal year 2004. Despite spending $1.3M obtaining and maintaining patents and another $111,000 in fees associated with licensing, infringement/litigation and general legal, ISURF is at the low end of the scale when it comes to license income.

I do not know how to read this data, other than it appears ISURF is spending a lot more time chasing down lots of tiny companies for tiny royalties. No doubt there are a few monster technologies and monster license fees in the bunch, but compare this data with schools at the other end of the spectrum like Emory University. Emory generates half a billion dollars in license income from only 154 licenses. Apparently, other universities are dividing up their inventing ideas that shape the world vs. patent trolling days a little differently.

Historically, patent trolls have shied away from fights with deep pocketed corporations. For 800 pound gorillas, the threat of huge attorney fees has just not been sufficient to extort small license fees. Recently, however, the United States Supreme Court has drastically limited the ability of patent trolls to use injunctions to extort license fees and to patent obvious changes to existing technology.

Could this recent suit by ISURF against Monsanto be as a result of the recent "anti-trolling" mandates by the Supreme Court? Are patent trolls drawing a line in the sand? Whichever way this case eventually turns, it will no doubt have far reaching implications as to how universities view the value of patent trolling.

Brett Trout

ISURF Iowa State University patent patent troll

The Good the Bad and the Ugly of Online Networking

The Good
Law Firm blog guru Kevin O'Keefe has many examples of how online networking activities, like blogging, have landed lucrative jobs and driven in clients by the hoards.

The Bad
Adam Steen, a true networker's networker, however, warns of the dangers of viewing companies as "competitors" rather than potential networking "collaborators. " According to Adam, "businesses that stand alone and are unwilling to collaborate with 'competitors' may miss an opportunity to grow strategically and/or financially."

The Ugly
Business lawyer Rush Nigut (shhh, I told him he was only going to be "Bad") waxes philosophic on the dangers associated with CyberSlamming. Cyberslamming is when people on social networks and message boards post (here is the intellectual property tie-in . . . wait for it . . .) defamatory comments about you.

Instead of doing my own legwork to determine what to do if you find yourself the hapless victim of CyberSlamming, I have instead posted anonymous, yet quite scathing Rush-related aspersions on fourteen social networking sites and message boards. I will await my answer in what I assume will be one of his more lively upcoming posts.

If your network does not extend onto the web, you are calling iPhones with a tin can and a string. Your business has to become part of the conversation to survive. But tread lightly. As noted above, you never know when a misstep might cause you endless amounts of online trouble.

Brett Trout

blogging networking cyberslamming defamation

Des Moines Lawyer to Speak on Internet Law

It is me actually. Tonight at 6:00, I will be speaking at the Pappajohn Center, located at 1200 Grand, Des Moines, Iowa. My talk will cover The Top 10 Legal Oversights that Can Shut Down Your Website.

A meet and greet begins at 5:00 PM, with Mike Colwell, Executive Director of the Business Innovation Zone(BIZ) speaking at 5:30 PM about the new BIZ, regional business accelerator, offered through the Greater Des Moines Partnership. My talk begins at 6:00 PM and will cover the most oft faced legal website troubles and steps you can take to avoid them.

Preregistration is required. For more more information, or to RSVP, click here.

Brett Trout

Des Moines inventions Brett Trout business accelerator

Have you trademarked your Short Code?

Common Short Codes (CSC) are five digit numbers ranging from 20000 to 99999, or six digit numbers ranging from 222222 to 899999. Cell phone and PDA owners use CSCs to to send short message service (SMS) text messages to a commercial entity. Whereas typically text messages go directly to individuals, CSC messages are more often associated with commercial services, such as voting, polling, games, contests, coupons, mobile payments and other interactive applications.

According to Julia Anne Matheson and Anna Bonny of Finnegan Henderson, SMS generated texting in the U.S. generated $1.24 billion during the first half of 2005, up 154% over 2004. By next year, users will send an estimated two trillion SMS messages.

Obtaining a CSC involves registration with the Common Short Code Administration (CSCA) for CSC leases of three (3), six (6) or twelve (12) months. The cost of CSC leases varies from $500 per month for random CSCs, to $1,000 a month for specifically requested CSCs.

While there are only 757,778 or so CSCs available, as compared to a virtually unlimited number of domain names and telephone numbers, the extremely high cost of CSCs should prevent CSCsquatters from cornering the market. If you want a particular CSC corresponding to a particular five or six letter word, however, time is indeed of the essence.

Just as companies snapped up telephone numbers corresponding to various words spelled out on a telephone keypad, companies are now snapping up CSCs corresponding to particular words as well. Specific language in the CSCA sublicense agreement states "You agree that You will not take any action that would cause You to acquire any trademark, trade name or trade dress rights in the CSC." Notwithstanding, companies like United Parcel Service of America, Inc. (UPS) are filing federal trademark registrations covering five letter words like "BROWN" as used in association with "sms, mss and short-code messaging services and wireless telephone networks."

While trademark disputes between two parties seeking the same CSC are indeed possible, the difficulty in determining ownership of CSCs, the multiple number of words associated with a CSC, the specific reservation of intellectual property rights in the CSC by CSCA, the non-existence of a special forum like ICANN for the resolution of CSC intellectual property disputes and the high costs of ownership, all indicate trademark disputes over CSCs are likely to be few and far between.

Thanks to Cedar Rapids attorney Matt Krigbaum for the story idea.

Brett Trout

CSC short code trademark CSCA

Google's fair use of Perfect 10's thumbnail nudes

Perfect 10 is in the business of licensing its copyrighted images of naked women to end users. Preventing end users from circumventing licenses by downloading infringing reproductions of those nude images is therefor critical to Perfect 10's business.

When Perfect 10 started licensing small versions of its images for cell phones, it became concerned that Google's free thumbnails of the nude images would supplant that entire market. Perfect 10 was also concerned with Google's in-line linking and other "arms length" uses of Perfect 10's full size images. On appeal of both parties from the district court ruling, the 9th Circuit affirmed several lower court rulings with regard to Google's display of Perfect 10's copyrighted nude images.

In Perfect 10 v. Amazon/Google, the 9th Circuit affirmed the lower courts ruling that Perfect 10 had indeed made a prima facia case that Google's display of the thumbnails was an infringement. The 9th Circuit, however, reversed the lower court's finding that Google would not be able to prove the infringement was a fair use under the Copyright Act.

The high court found rigorous application of copyright principles in this instance would stifle the very creativity the Copyright Act was designed to foster. The 9th Circuit relied heavily on the "transformative" nature of Google's use, finding rather than superseding Perfect 10's use, Google's thumbnails use transformed the original copyrighted work into a new creation. The high court held that "the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case."

With regard to full size images, the 9th Circuit appeared to affirm the district court's "server test" of infringement. The Server Test looks at whether the owner of the computer is actually storing and serving the electronic information to the user. Under the test, in-line linking or framing does not constitute a "display" as that term is used in the Copyright Act. While in-line linking and framing may confuse users as to which computer is actually "displaying" the images, confusion is a factor in under trademark law, not copyright law.

The 9th Circuit also ruled the lower court erred in its resolution of the issue of secondary (contributory and vicarious) liability because the lower court failed to consider whether Google knew of the third party infringements and failed to take reasonable steps to prevent access thereto.

Brett Trout

Perfect 10 Google Amazon vicarious contributory copyright

Halo 3 Release Date Announced

Minutes after posting my last piece on Microsoft, I find out Bungie has announced a release date for Halo 3. If only they had known I am like a two year old. Once I start crying, just jingle something shiny in front of me and I forget whatever it was I was mad about.

Do not plan on seeing much of me September 25, 2007. I plan on playing Halo 3 on my Xbox 360 all day. If my kid happens to ask you when it is coming out, do me a favor and tell him September 26. At my age, I need at least a day head start just to keep up.

Thanks to Martha for the link

Brett Trout

Microsoft Halo 3 Release Date

Software industry setting the stage for mutually assured destruction

"We live in a world where we honor, and support the honoring of, intellectual property [they are going to have to] play by the same rules as the rest of the business[.] What's fair is fair."

Who does that sound like? Wrong. Incredibly, those are the words of Microsoft CEO Steve Ballmer, speaking about the use of free and open source software (FOSS). According to Fortune senior editor Roger Parloff, Microsoft is increasingly feeling the pinch from open source software systems like Linux. FOSS evangelists tout open source software as cheaper, more reliable and just all around better than privately owned software programs, such as those produced by Microsoft.

In the past, FOSS has not been such a problem for behemoths like Microsoft. Installation and use of FOSS on a personal computer required a little more information technology acumen and flexibility than the average consumer possessed. Now, however, FOSS has become much more powerful and user friendly. This increasing market power may have resulted in Microsoft's most recent round of patent infringement allegations.

In response to Microsoft's allegations, Linus Torvalds, lead developer of the main Linux software code (the "kernel"), has challenged Microsoft to name the particular patents Linux and other FOSS allegedly infringe. This new found bravado, combined with an increasing consumer affinity for FOSS now threatens to bring the entire issue to a quickening, from which there can be only one.

Microsoft argues that FOSS infringes 235 of its patents, but has been reticent to instigate a patent infringement lawsuit. The arguments Microsoft would have to make in alleging patent infringement would be the arguments third parties would use to take down Microsoft in their own patent infringement suits. As it stands now, if Microsoft has the option of arguing software patents are not valid if it gets sued and that software patents are rock solid if it chooses to sue a third party.

The problem is that Microsoft cannot have it both ways, once it selects a strategy, the result is a foregone conclusion. If Microsoft pursues the first option, it will likely not be able to stop FOSS from continuing to eclipse privately produced operating systems. If it pursues the second option, the software industry will proceed toward mutually assured destruction, with only the patent attorneys getting wealthy. Ceteris paribus, I prefer the second option.

Actually, like most other consumers, I prefer the status quo. Unfortunately, given the steadily increasing popularity of FOSS, it appears the ultimate conclusion to this Mexican standoff is preordained. The penultimate scene from the movie Reservoir Dogs offers a pretty accurate glimpse into the near future of the software industry.

Not to throw in any spoilers, but you, as the software consuming public, are being played by Mr. Orange. Microsoft and third party software patent holders are Joe and Eddie. Although it will be interesting to see which is which, the outcome is the same.

Brett Trout

Microsoft Linux Torvalds Ballmer patent FOSS

10,000th Reader Gets a Free Book

In celebration of my stat counter hitting 10,000 sometime this week, I would like to award a copy of my book to the 10,000th reader. Granted, I have only had my stat counter up for less than a year, so I really do not know how many people have visited my blog since 2003, but play along with me. Here is the deal. The first person to submit a comment to this post AFTER, the stat counter hits 9,999, will win a free copy of Internet Laws Affecting Your Company delivered right to your doorstep.

While not a substitute for the advice of an attorney, Internet Laws Affecting Your Company brings you up to speed on the relevant issues before you speak with your attorney, helping you to ask the right questions and making every billable hour more productive. For attorneys, Internet Laws Affecting Your Company serves as a handy desk reference, helping you to identify issues and speeding your research. If you absolutely cannot wait, or if you are the unfortunate 10,000st reader since last Fall, you can pick up a copy from Amazon by clicking on the above picture. Don't Miss Out.

Brett Trout

Internet Laws Affecting Your Company Brett Trout

Document Retention Policies

Still got that 5.25 floppy disk in the back of your desk? If so, it just may be time to put together a document retention policy (DRM). For more on what a DRM entails and all the bad things that can come from not having one, check out my latest post on IowaBiz.com

Brett Trout

document retention esi electronic discovery

Guy Kawasaki Hates Patents

Well, not really, but he does get tired of hearing about them. Ever since sharing the stage with Guy Kawasaki last month at IgniteIT and hearing his thoughts on patents, it seems like every time I turn around I have a Jungian/Guy Kawasaki plate o' shrimp patent moment. Just yesterday, Mike Sansone posted a video of Guy. The video is ostensibly on blogging, but Guy cannot help but throw in a word or two about patents. Just as he did at IgniteIT, Guy emphasizes the importance of not emphasizing patents when discussing your business plan with potential investors.

Guy is not opposed to patents, or any other intellectual property protection for that matter. He just subscribes to my philosophy; a patent is merely a "safe." The question is whether what you put inside is the Hope diamond or a lump of coal. If it is the Hope diamond, the product will evangelize itself. To borrow a phrase from Guy, "All you have to do is get out of the way." If what you have is a lump of coal, building Fort Knox around it is not going to help sell it and, therefore, is of little interest to potential investors.

Patents are important, but they are not going to change a sow's ear into a silk purse. The market either wants, or does not want, your product. Patents merely keep other people from competing with you. If your product is great, a patent is great, if your product is terrible, a patent is a waste of money. The tail does not wag the dog. Remember, anyone can get a patent on almost anything. Heck, I even have one myself.

Touting a patent to a potential investor is like saying you are incorporated. That is great, that is important, but what difference does it make? Tell me why your business plan is special. Tell me why the market will care. What in your business plan sets you apart? What special expertise does your team have? What is your experience in this industry? What customers are on board? What synergies, other than money, can this venture capital group bring to the table on your project?

Guy points out several valuable considerations in looking beyond patent protection. He also offers his patent lawyer buddies, Doug Sorocco Stephen Nipper and Matthew Buchanan the chance to counterpoint as well as offer some thoughts on other types of intellectual property protection like obtaining trademark registrations as a part of an overall branding strategy.

Guy's posts are a must read for any aspiring inventor. Patents are important, investors want to know you are pursuing them. However, making them the focus of your business plan is a sure fire way to tune out seasoned investors.

Brett Trout

Guy Kawasaki patents

Patent Examiners Are Fed Up

As a patent lawyer I have taken issue with many aspects of the United States Patent and Trademark Office (USPTO). My primary concerns revolve around the exorbitant fees the USPTO charges inventors, much of which it uses for purposes other than the examination of patents. Despite my concerns, however, my patent lawyer angst is not directed at the actual patent examiners, whom I always felt were brothers in arms in the fight. Now, I am sure.

In an open letter from the Patent Office Professional Association, patent examiners reveal that they are fed up with the current patent grant systems around the world. They feel higher productivity demands, increasingly complex inventions and an ever expanding collection of prior art have put so much pressure on patent examiners that the entire worldwide patent protection infrastructure is in jeopardy. The patent examiner workload is, simply put, at the breaking point.

This cannot help but translate into more legitimate patents being rejected and more frivolous patents being issued amidst the confusion. Unfairness in the prosecution threatens to undermine the entire patent system. This uncertainty, in turn, will lead to reduced innovation and increased litigation.

To reverse this trend, the patent examiners recommend:

Increasing the quality of examination by providing patent examiners with more time to search and examine patent applications.

Acknowledging the importance of protecting the intellectual property of inventors while simultaneously protecting the public domain by removing bias from reporting, rating and incentive systems with respect to granting or not granting patents.

Guaranteeing the independence of the examination process so that it is governed solely by the legal framework.

Ensuring that examiners maintain their legal and technological competence by providing adequate and continuing legal and technological training.

Maintaining staff skills with search, examination and administrative tools by providing regular update training.

Developing and maintaining collaborative rather than adversarial relations with employees and their representatives.

Strengthening the world’s patent systems by encouraging respective governments to provide standards of patentability that reward innovation while discouraging undeserving patent applications so as to provide a strong presumption of validity for issued patents.

Sounds reasonable to me. The money is there. Now if we can just get the USPTO to spend a little of it on the very people that make our patent system work.

Brett Trout

patent examiners patent reform USPTO

How to Get a Patent

When asked the process for getting a patent for one's self, I feel a little like a surgeon being asked how to take out one's own appendix. "Hey, I have handled a knife every day of my life since the age of five, I think I can take out my own appendix." Can you do it? Sure. Is there information online that can walk you through the entire process? You bet. The problem with both appendixes and patents is that you will not know if there was a problem until after it is too late.

A patent application involves several parts: the drawings, the specification (description) and the claims. I believe with a little training, most lay people could come up with something approximating drawings and a specification. Although there are issues like "best mode" and "enablement" that you have to address, these types of issues are explained extensively all over the Internet. Now the drawings and specification may still end up substantially limiting the scope of the patent, or invalidating the patent altogether. I am just saying that the best layperson, reading everything they could on the topic, could probably do as well as the world's worst patent attorney on the drawings and specifications.

The real trick is the claims. A claim is a single sentence which defines the metes and bounds of your patent. It includes the combination of elements no one has ever combined before. If you include too little, the claim will be rejected as obvious or as anticipating an already existing invention. If you include too much, your patent will be unnecessarily narrow and easier for the competition to circumvent. Claims are where the patent attorney's particular artistry, skills and experience come into play. Be aware, not all patent attorneys have the same skill sets. No two patent attorneys will draft the exact same patent. How broad and defensible your patent turns out to be depends a lot on the expertise of the patent attorney you select.

But back to doing things yourself. The United States Patent and Trademark Office (USPTO) offers a helpful website discussing how to get a patent. Assume you want a utility patent; the website guides you through all of the parts of the patent, including the "formal papers" that you have to submit along with your patent application. Here is what the USPTO has to say about claims:

Claim or Claims

The claim or claims must particularly point out and distinctly claim the subject matter which you regard as the invention. The claims define the scope of the protection of the patent. Whether a patent will be granted is determined, in large measure, by the choice of wording of the claims.

A nonprovisional application for a utility patent must contain at least one claim. The claim or claims section must begin on a separate physical sheet or electronic page. If there are several claims, they shall be numbered consecutively in Arabic numerals.

One or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application. All dependent claims should be grouped together with the claim or claims to which they refer to the extent practicable. Any dependent claim that refers to more than one other claim ("a multiple dependent claim") shall refer to such other claims in the alternative only. Each claim should be a single sentence, and where a claim sets forth a number of elements or steps, each element or step of the claim should be separated by a line indentation.

The fee required to be submitted with a nonprovisional utility patent application is, in part, determined by the number of claims, independent claims, and dependent claims.

Got it? Yeah, me neither. But it is not the USPTO's fault. Patent attorneys have to spend years learning how to draft claims under the guidance of a skilled senior patent attorney. They study books and take classes, sometimes for many years before they are ready to take the patent bar and become a patent attorney. Even then, the pass rate for the patent bar has not risen much above 50%.

There is a reason why patent attorneys can practice nearly any type of law, but no attorney, other than an attorney who has passed the patent bar, can draft your patent application for you. There is a reason even the Patent Office strongly recommends you do not attempt to draft a patent application on your own. Apparently dying of gangrene takes a little luster off the thrill of removing your own appendix. Patents are the same. You might pump a little more money into it and survive a little longer, but as with a autoappendectomy, methinks you shan't try it a second time.

Brett Trout

How to Get a Patent Patent it Yourself USPTO

Take Your Patents to Iowa!

Illinois legislators are considering throwing the state's gun manufacturers out on their respective ears. You can read the proposed bill here. The bill plays on the fear many people have of what they do not understand. The media fosters this fear by portraying the "evil looking" semi-automatic weapons Illinois seeks to ban as machine guns. You have not been able to buy a machine gun since the National Firearms Act of 1934 and even the NRA agrees that the general public should not be able to buy machine guns at their neighborhood gun store.

For more information on the difference between what you might think is an assault weapon and what the proposed ban actually covers, check out this YouTube video. Some of the affected Illinois manufacturers and cities include:

Les Baer Custom, Hillsdale
Armalite, Geneseo
D.S. Arms, Barrington
Rock River Arms, Colona
Springfield Armory, Geneseo
Lewis Machine and Tool, Milan

These are not Saturday Night Special manufacturers, these are high end manufacturers of guns very rarely associated with any crime. More importantly, these are strong businesses, offering great jobs with great pay and producing a mountain of intellectual property, including both patents and trademarks. The fact that these companies operate in a state that punishes good corporate citizenship should be enough to convince them to relocate to a state (like Iowa - just as an example) that appreciates their contribution to the community and the state.

Officials in the very gun manufacturer friendly community of Centerville, Iowa should jump on board and make a play for one of these great companies. Other great Iowa communities like Davenport already see the incredible opportunity Illinois has placed in their laps, and are not wasting any time taking advantage of this potential windfall on behalf of their constituencies.

Brett Trout

gun ban intellectual property Illinois Iowa

Internet Jurisdiction - Win the Battle, Win the War

If you pay for an auction you won on eBay and the seller does not deliver, what can you do? Can you sue him/her in your local court? Do you have to travel to his/her home state? Obviously, for smaller value items, and even for some larger ones, the answers to those questions can predetermine the lawsuit victor. The question is, therefore, how can you obtain jurisdiction over an internet related dispute with someone in another state?

Most people believe the law is pretty clear on Internet jurisdiction. That is simply not the case. The variety of Internet related disputes expands far faster than legislators could ever react. Judges are often left, therefore, applying bricks and motor jurisdictional principles to Internet disputes. This is actually good for you. Great litigators (lawyers who try cases in court) love ambiguity. If the law is ambiguous, the result depends much more on the lawyer's skills as an advocate, and much less on the law. Litigators prefer to live or die by their own swords. Since most seasoned litigators have hubris in spades, you would think they would love Internet cases. Unfortunately, litigators also prefer cases with big dollars at issue and are loathe to admit weaknesses almost as much as they despise a loss.

In Internet cases, these factors come together in a "perfect storm" of sorts. Litigators know that when arguing ambiguous points of law, one side's vastly disproportionate knowledge about the area of law will overshadow a small disparity in powers of persuasion. Combine this with the fact that most litigators are unfamiliar with the law of the Internet and you will see why so many are eager to "punt," explaining that law does not provide you with the jurisdiction you need, rather than admiting they are not up to the challenge or taking a case they cannot win.

Most litigators can handle most types of lawsuits. For cases involving Internet jurisdiction, however, you need a litigator familiar with Internet law. It is also best to have a litigator with some actual experience in that area. I cannot tell you how many times seasoned litigators have told me I could not obtain subject matter jurisdiction or personal jurisdiction in a case in which I was able to present strong enough jurisdictional arguments to generate a favorable settlement. In these cases, they other side determined, quite correctly, that losing the battle over jurisdiction meant losing the war.

Internet law opens up more jurisdictional possibilities than probably any other area of the law. Even if the other side may have a better potential position on the issue of jurisdiction, I have had defendants unintentionally and irreparably destroy that position through tactical error. While the law allows remedy for many errors, waiving personal jurisdiction, is not one of them. A big mistake like that in a small Internet lawsuit means it is time to get out the checkbook.

The key to winning your Internet lawsuit is not taking the first "No" you get from an attorney. I rarely say "No." Instead, if I do not think I can prevail on a Internet related case, I give the client my reasons and encourage them to obtain a second (or third) opinion. The next Internet attorney they contact might be one that just sucessfully resolved a case very similar to their own. The more experience the attorney has with Internet related cases, the more likely it is that they will be able to help. There is no substitute, however, for an attorney that just sucessfully concluded a lawsuit involvng the exact same issues before the exact same judge.

Bricks and mortar jurisdiction is so well settled, and so rarely forces settlement, that most litigators give it realatively short shrift. In contrast, a skilled attorney, experienced with Internet lawsuits, can often parlay a little Internet jurisdiction into a large victory.

Brett Trout

Internet jurisdiction litigators Internet lawsuit

They may be slow, but at least they are overpriced

According to Newsfactor.com, the United States Patent and Trademark Office is taking an average of 31 months to issue a patent. Worse, the backlog of pending patent applications is estimated to increase from 675,000 today, to over 800,000 by the end of the year. Although the Patent Office plans to go paperless by the end of the year and increase the number of examiners by 50 percent to roughly 7,500 within a few years after that, those measures are likely too little, too late to reverse the trend.

The obvious solution would be for Congress to stop stealing fees from inventors for use in non-patent related projects. With the Court of Appeals for the Federal Circuit decision in Figueroa v. U.S last October however, I would not bet the farm on either reasonable patent fees or expedited patent processing becoming a reality any time soon.

Brett Trout

USPTO patents patent application Figueroa

Law Day in Iowa

Gov. Chet Culver has declared today Law Day in Iowa. This year's "Liberty Under Law: Empowering Youth, Assuring Democracy," theme will focus on the needs of youths and the issues affecting them. Several organizations are sponsoring Law Day events, including the Iowa Supreme Court, which is presenting its Bringing the Courts to the Classroom Program here in Des Moines and over the Iowa Communications Network.

Hat tip to Adam Steen for the info.

Brett Trout

Iowa's A-List Bloggers Unite

Yesterday heralded the launch of IowaBiz.com, a daily blog written by the best bloggers in the state. Here they are:

* Rush Nigut - Business Law
* Adam Steen - Networking
* Brett Trout - Internet Law
* Brian Honnold - Insurance
* Drew McLellan - Marketing
* Joe Kristan - Finance
* Mike Sansone - Social Media
* Mitch Matthews - Life/Work Balance
* Shirley Poertner - Leadership
* Timothy Johnson - Project Management
* Tom Vander Well - Customer Service
* Victor Aspengren - Corporate Culture

If you think any of these topics do not apply to your business, then you REALLY need to read IowaBiz. IowaBiz will show you how your business is not about numbers, it is about community, about sharing, about starting the conversation with your customer. Build a better business and the customers, as well as the numbers, will come.

Tune in, read up and respond to the posts. Become part of the conversation. I look forward to meeting you there!

Brett Trout

IowaBiz blogging Iowa