Bearing a Gift Beyond Price, Almost Free

Reading Blawg Review this morning I noticed the new BlawgWorld '07 eBook with TechnoLawyer Problem/Solution Guide is now available as a free download. The book contains 366 pages of helpful hints from Blawgers around the world, offering you insight on everything from removing metadata from your documents to using the Internet to attract business.

Be very thankful they did not price this virtual tome based upon its value.

Brett Trout

BlawgWorld Blawg

Des Moines Register Lowering Its Standards

For years I proclaimed that blogs are on par with newspapers in terms of keeping readers informed. I retract that statement. Blogs are more current, more focused and far less expensive. Newspapers were known for being more well-researched and including fewer typographical errors.

Oh, how times have changed. Check out this article from the Des Moines Register. The first fault is that it includes a spelling error in the first sentence (unless I am, unbeknownst to me, multiple people). The second blunder, is that the writer takes a quote from my letter and transcribes it incorrectly and makes me appear as unfamiliar with the English language as she is.

The third, and most troubling problem is that the Des Moines Register does not seem to care that the quality of its reporting has dropped like a call on AT&T. Everyone makes mistakes. Even this blog is scattered with spelling errors. Granted, I do not get paid to spend a week getting my post to a copy editor who should take care of these kinds of things, but even the best of us makes mistakes. The Register's problem was illustrated (something they still do well) when I pointed out these concerns to the Register, by phone message and via email, I received no response. Even the lowliest blogger would have enough pride of authorship to correct a mistake brought to his or her attention.

Pick up a copy of the Register, . . . so your grandkids will have an idea of what you are talking about when you tell them you used to read a newspaper.

Brett Trout

Des Moines Register journalism

Early Bird Blogworld Expo Registration 1/2 Off

As you know, I will be presenting at the BlogWorld Expo this year. In case you did not know, there are over 1.4 million new blog posts every day and 22 of the 100 most popular websites in the world are blogs. BlogWorld Expo is the largest blogging conference in the world, with more than 50 seminars, panel discussions and keynotes from some of the brightest minds on the planet (and me).

The Expo is November 8-9, 2007, and will be held at the Las Vegas Convention Center. Las Vegas. If you register by Aug 3, you can save 50% off the normal registration and 25% if you register by Oct 16.

Brett Trout

BlogWorld

Bill Forces You to Pay For RIAA Policing

According to a recent article by Ken Fisher, writing for ars technica, Senate Majority Leader Harry Reid (D-NV) wants to use your tax dollars to do RIAA's dirty work. Senator Reid's amendment to the Higher Education Reauthorization Act (HERA) withholds federal funds from US colleges and universities that do not fall in lock-step with arbitrary file-sharing protocols.

Now the good news; your tax dollars get to pay the US Secretary of Education to conduct an annual audit of the top 25 file-sharing schools to determine who gets blacklisted from federal funds. Plus, with over half of the schools on the most recent list being state schools, you also get to pay for all the internal software, hardware and peoplepower required to keep your state school of the blacklist.

Given that anti-file-sharing technology is known to interfere with the legitimate transfer of information, taxpayers would be paying millions of dollars to stifle the legal transfer of information in schools. Isn't that the raison d'etre of a school? Even Senator Reid has to see that.

Brett Trout

Harry Reid RIAA P2P Higher Education Reauthorization Act

The New Surge of Medical Patents

According to a recent online article at Law.com, the United States Patent and Trademark Office is issuing medical patents at double the rate it did two decades ago. Although 35 U.S.C. 287(c) still prohibits infringement lawsuits against doctors performing patented medical activities, with medical patents issuing at the record rate of 100/month and doctors negotiating billion dollar patent settlements for infringement of their patents, the huge upward trend in the filing of medical patents does not appear to be leveling off any time soon.

Brett Trout

medical patent medical method USPTO

Rush On Business Goes Lexblog

Wow. Check out the LexBlog facelift West Des Moines Business Lawyer Rush Nigut got for his Rush On Business blog. Kevin O'Keefe of Lexblog has done an excellent job updating Rush On Business with new graphics, new photos and a great new usability. I just hope Rush does not forget us little people now that he has gone big time. Stop by his blog and let him know how you like the new look.

Brett Trout

Lexblog Rush Nigut Lexblog

The Oldest Blog in Iowa

Robert Ambrogi has an interesting post which asks "Who Was the First Legal Blogger?" From the post, it appears Overlawyered is the first, dating back to July 1, 1999. While others are disputing the results, I have yet to see any actual evidence of a blawg post predating Overlawyered.

Mr. Ambrogi's post got me thinking. BlawgIT has been around since August 21, 2003., Based upon my limited research, this would seem to place it in the running for several "oldest" categories. The only way to find out, however, is to follow Robert Ambrogi's lead and ask if anyone in the blogosphere is aware of blog that can strip BlawgIT of the following titles:

Oldest Blawg in Iowa
Oldest Blog in Iowa
Oldest Patent Blog in the country
Oldest Intellectual Property Blog in the country

It is very possible that there is a blog out there that deserves the crown more that BlawgIT. If anyone is aware of any blog vying for one of these titles, let me know and I will check it out. If I determine the referenced blog is indeed older, I will provide a link to it and to you. Let the games begin!

Brett Trout

oldest blog oldest blawg iowa patent

SEMEE Showcases Iowa's Entrepreneurial Spirit

Last night in Des Moines, Adam Steen and Transition Capital Management packed the house for their Society for Entrepreneurial-Minded Executives (SEMEE) event. Some of the highlights included an update from Matt Owen of US Rodeo Supply on how his business has expanded beyond expectations through the use of SEMEE, Netsuite and blogging.

Mike Colwell, Executive Director of the Business Innovation Zone (BIZ) of Central Iowa gave a great presentation on how BIZ leverages public and private grants to help entrepreneurs get their ideas off the ground. Mike combines talent, experience, contacts and the huge resources at his disposal to transition big ideas into viable companies.

If you are an entrepreneurial minded individual, SEMEE is definitely the place to be.

Brett Trout

SEMEE Iowa entrepreneur

Domain Name Taste Test

By all accounts an acquired taste, Domain Name "tasting" has become all the rage amongst the well-heeled CyberSquatter set. Domain Name Tasting involves "purchasing" a domain name and then returning it within five days to get a refund. The bad guys (don't worry ladies, I am using the Midwestern gender-neutral form - you get to be bad too) often purchase a misspelling of a popular domain name and point it to a website filled with pay-per-click ads. If the revenue from the ads appears to outweigh the $6/yr it costs to register the domain name for real, the bad guy goes ahead and registers the name. If the revenue comes in low, the bad guy returns it for a refund. Its like returning that dress after wearing it to the prom.

An even more insidious version of domain name tasting involves Domain Namenapping as well. Here is how it works. Marketing tells you to check the availability of a domain name they like for your new product. You go to a domain name registrar and query to see if the domain name is available. You are in luck! The domain name is available. You tell marketing, get approval and return to the registrar to buy the domain name. But what is this? Somebody off Santa's naughty list just tasted your name after spying on your search. Now all of your new product press is driving traffic to this Cybersquatter's website.

And that is not all. On June 14, 2007, Internet Corporation for Assigned Names and Numbers (ICANN) staff prepared a 39 page Report on Domain Name Tasting and presented it to the Generic Names Supporting Organization (GNSO) listing these additional problems attributable to Domain Name tasting:

1. Destabilization of the Domain Name System – The tremendous volume and rate of
registrations and deletions associated with tasting and kiting is described as placing operational loads on Registry systems that are orders of magnitude above steady-state operations. Such incessant, systematic stress on registry systems could cause instability in the gTLD namespace or, worse, the entire domain name system.
2. Creation of consumer confusion – The high number of domain names estimated to
be tied up in domain tasting and kiting every day (2-4 million) can result in consumer confusion and undermine confidence in the Domain Name System as domains
repeatedly alternate between availability and registration for 5 day periods and
legitimate users are prevented from registering their desired domain names. This user
confusion is increased by the transient nature of many of the names, where they are
there one day, but gone the next.
3. Increased costs and burdens to legitimate registrants – The ability to control (at no cost) domain names that are potentially in conflict with other registered names
increases the effective cost of a domain name to its owner through increased defensive registrations and staff resources needed to monitor such potential conflicts. Registry costs must also be increased due to the volume of adds and deletes.
4. Facilitation of Trademark Abuse - Automated registration systems permit registration of virtually every typographical permutation of a trademark in order to test for traffic, facilitating trademark infringement on a massive level. Further, by the time the trademark owner discovers that a domain name identical or similar to its trademark has been registered, it is often too late for the trademark owner to act as the domain name has already been deleted along with the Whois data.
5. Facilitation of Criminal Activity – Due to the transient nature of AGP-deleted
registrations, it is difficult for law enforcement to trace the registrant of tasted domains, which makes these domains ideal candidates for phishing, pharming, and other forms of internet fraud.

The problem of domain name tasting is large and getting larger. To reduce the impact of domain name tasting on your company, consider purchasing domain names without first searching their availability. If the domain is already taken, it cost you nothing. If the name is available, however, for $6 you saved yourself a lot of headache at the hands of a domain name taster.

If you would like to find out more about domain name tasting, check out ICANN's public participation site. Bon Appétit

Thanks to Matt Krigbaum for the story idea. BTW/As of Thursday, Matt is the proud parent of Zachary Austin Krigbaum 10 lbs. 22 1/2 inches [which is pretty much the collective birth weight of all my children put together]. Mom (incredibly) and baby are doing great.

Brett Trout

domain name tasting cybersquatting domain name theft

Contribute to Cyberlaw Book

I am finalizing editorial revisions for my upcoming "Cyberlaw" book this week and wanted to give you, my readers, a chance at immortality. Because cyberlaw is such a fast-changing topic, I want to be sure to cover topics right up until the publication date. If you think you might have a super fresh, super hot topic in cyberlaw you would like to see addressed in my book, drop me an email. Everyone offering a last minute suggestion that I decide to add in at the last minute will receive a free copy of Cyberlaw. For all the rest of you, be sure to look for Cyberlaw on store shelves within the next couple of months. With artist extraordinaire, Ron Wagner's original artwork on the cover, it will be hard to miss.

Brett Trout

Are You Getting the Most Out of Your Lawyer?

Lawyer's are essential tools for any business. With any job, efficiency involves using the right tool for the right job. You could use a ruler and nail clippers to cut your lawn, but at what cost? Similarly, you could have your lawyer mow your lawn, but at $300/hr, you could probably find a more efficient solution. Not surprisingly, your lawyer might view your business' legal problems a little differently than you do. Lawyers tend to be much more risk adverse than their clients. More risk often means less up front legal work and more potential liability for the lawyer when things go south. Keep this in mind when your lawyer recommends the "best" course of action. It is probably worth asking your lawyer the pros and cons of alternative cat-skinning strategies.

Getting the best out of your lawyer also means finding a lawyer skilled in the particular area of the law in which you have a need, and then using that lawyer for those things you cannot have done more efficiently by someone else. Is it worth paying a patent lawyer $300/hr to draft a patent for you? I think the general consensus would be "Yes." Is it worth paying a divorce attorney $200/hr to mow your lawn? Probably not. It is not that the divorce attorney is not capable of mowing your lawn, it is just that you can probably do it more efficiently yourself.

What can you do and what do you need your attorney to do? The question is one of legal INFORMATION versus legal ADVICE. You should try to gain as much legal information as you can and use that information to more effectively leverage the legal advice you get from your attorney. Educating yourself on the law, allows you to get more out of your attorney and may even allow your attorney to obtain better results for you at a lower cost. You and your lawyer are a team. The more you know about what your lawyer can do for you, the more synergistic the relationship.   

Where do you get legal information? Blogs, government websites and law firm websites  are all chock full of valuable information about the law. Unfortunately, these sites are also full of inaccurate and slanted information. So how do you separate the wheat from the chaff? Your attorney should be able to recommend some websites and other reading material capable of providing you with a basic legal primer on the area of law of interest to you. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be.

If all of this legal information is out there, why do you need an attorney at all, and why am I telling you all this? Well, just because you read up on surgery does not mean you will be able to take out your gall bladder. Clients who start supplanting their legal advice for that of their attorney are causing more problems than they could ever hope to solve. There are just too many unknowns, too many variables to try to navigate legal issues yourself. Just because you COULD remove your own gall bladder does not mean it would be a good idea. Even lawyers rarely represent themselves. They know more than anyone that the small savings realized by not hiring an attorney is far outweighed by the costly ramifications.

Educating yourself, however, will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal well-being. Paying $300/hr to have an attorney regurgitate legal information wastes time and money. Paying a skilled attorney $300/hr to propose a legal course of action on a legal issue you have educated yourself on may well be the best money you have ever spent.   

Brett Trout

Best Lawyer

Microsoft Zune Patent Taking us Backwards?

According to Last100, Microsoft's new Zune patent appears to cover paying Zune users for sharing pirated music? How can this be? Apparently, Zune wraps its own DRM around any music it shares. With pirated downloads accounting for more than iTunes, Walmart, Amazon and Best Buy combined, Microsoft is licking its lips at the potential to monetize this untapped market with this patent. Wile the Zune does have at least one redeeming feature, if they can just convince a second person to by a Zune, they may actually have something.

Brett Trout

Microsoft Zune Patent DRM

iPhone Legalease

So you have your iPhone. If you are like me, never having owned an iPod before, you are still in awe of the audio/video features, but awkwardly adjusting to using your phone as a divining rod trying to locate the nearest ATT network. Between watching Grindhouse and trying to make a call, you probably have not had time to give carefully considered review to your ATT contract. And I would assume like a heroin addict outside the methadone clinic, you did not sit down and review the entire contract before activating your precious bundle of joy.

No worries. If you did not read the contract, or even if you did read the contract only to discover it made you feel like a Golden Retriever proofing the Magna Carta, Telecom Analyst Bruce Kushnick has done all of the heavy lifting for you and has unearthed some interesting bits of lawyer speak deep within the fine print. Here are just a few of his discoveries:

Customers Are Billed for “Network Errors” and “Network Overhead".

One analyst wrote ”’Network overhead’ means all the bits used for any purpose whatsoever. If you resend a packet because best efforts wasn't good enough then you are charged.”

Billed Even Though the Call Doesn't Go Through.

According to AT&T, after 30 seconds it becomes a call, even if it didn’t connect to the called party. And in some cases, the network itself may take up the time to make the call a chargeable event.

Bogus Fees Added to the Bill: Regulatory Cost Recovery Charge

The “Regulatory Cost Recovery Charge” is a made-up charge that should have been included in the cost of service instead of a separate line item. Most carriers are charging this fee, even though it is not government mandated or a legitimate tax. By making it a separate line item, the phone company gets more money and doesn’t have to include this line item in the advertised cost of service. According to ATT:

"The Regulatory Cost Recovery Charge is a charge assessed by ATT and is not a tax or government-mandated charge. This charge is subject to change from time to time as the cost of compliance changes. [] The purpose of the charge is to defray ATT's costs associated with payment of fees and compliance with various initiatives imposed by the government. Please note that costs may be incurred and charged prior to initiation of any of the respective services."

From my lawyerly vantage, it looks like the worse the service is, the more money ATT makes. Perhaps I should buy some ATT stock to offset my monthly overage charges.

Brett Trout

iPhone ATT

7-7-7 My Lucky Day

I got engaged last Saturday. Since my lovely bride-to-be just took over Valerie Plame's old job, I cannot tell you her name (. . . perhaps if I knew Dick Cheney a little better). Those of you who know me, know her . . . and probably feel badly that you did not warn her sooner.

The surprise went off flawlessly, with champagne, chocolate, roses, candles, frogs, bended knee and ring. Oh, and the most important part, a "Yes". The wonder of the evening was due in no small part to a committed group of folks, bent on saving me from myself. Thanks to:

Christine
Lindy
Jen
Abra
Braxton
Rush
Grif & Lindy
Jim & Cathy (for having such a cute kid)
and Brad at Josephs for going above and beyond the call of duty in helping me find the absolute perfect ring.

Thanks to all of you for your part in the perfect proposal. But be sure when conveying your regrets to my lovely fiancée, that you keep up the ruse that I pulled off the entire proposal single-handedly. Remember, you helped convince her to spend the next fifty years with me, and she knows where you all live.

Brett Trout

What is a Patent?

As a patent lawyer the second thing people always ask me is "What is a patent?" (The first being of course "What is that stuck on your shoe?"). Now, to save you time if you ever meet me, and get right to the third question "Is it true you can actually stop a ceiling fan with your tongue?" I have prepared this handy and cogent analysis:

Patents protect inventions. Patentable inventions include new and useful processes, machines, manufactures or compositions of matter, as well as any new and useful improvement thereof. Patent protection is only available under federal law. States cannot grant patents. Under federal patent law , an inventor can obtain the right to prevent others from making, using or selling a particular invention. Patents used to last 17 years from the date of issuance. Now, patents last 20 years from the date of filing. The change is designed to prevent "submarine" patents from languishing in the Patent Office for decades until the market builds and the inventor comes out of no where to start suing people from something he or she invented decades ago.

Something most people do not realize is that a patent does not allow its owner to do anything. A patent only allows its owner to to prevent others from making using or selling the invention. Patent protection is not available for all types of inventions. You cannot get a patent on an idea, an obvious combination of pre-existing items, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity. The United States Patent and Trademark Office summarily rejects patent applications on items such as perpetual motion machines.

Examples of patents can be found on the governmental web site or through Google Patent Search. Patents typically consist of a brief description of the background and pre-existing technology, a detailed description of the preferred embodiment of the invention, drawings and/or flowcharts associated with the invention, an abstract of the invention, and one or more claims. The claims are each a one-sentence description of the invention. From a patentability standpoint, the claims must be narrow enough to differentiate the invention over any pre-existing devices or obvious combination thereof. From a commercial standpoint, the claims must be broad enough so that competitors cannot easily avoid the scope of the patent by making one or two minor changes. Not all patents are created equally. A skillful, experienced patent lawyer can often draft a much broader, more enforceable patent than a less skilled patent lawyer. Be prepared though, the Best Patent Lawyer in the World is probably going to cost you more than that fresh-faced associate right out of law school. Just make sure the patent attorney you speak with is the one actually drafting your patent application and he or she is not just pawning it off on a less experienced associate.

The owner of a patent may sue an infringer for copying the patented combination of elements in one or more of the patent claims. To determine infringement, a court looks at a particular claim within the patent to determine if each element thereof, or its equivalent, can be found in the accused device. If the accused device includes every element of the claim, the device infringes the patent. The infringer must not only stop making, using and/or selling the device, but the infringer is also liable to the patent owner for the owner's lost profits.

If the patent owner has no lost profits, the infringer must pay a reasonable royalty. Regardless of the number of claims included within the patent, if the device infringes a single claim, the infringer is liable for the same amount of damages as if the infringer had infringed every claim of the patent. If you are found to have infringed a patent, you may not only have to stop at compensate the patent owner for the damage, in the case of willful infringement, you might also have to pay triple damages and the patent owner's attorney fees as well.

While a patent prevents you from making, using or selling an infringing device, a patent does not prevent you from patenting an infringing device. As an example, say an inventor invents a chair and obtains a patent on the chair. A subsequent inventor could file for, and obtain, a patent on a chair with a rocker. Neither the first patent owner nor the second patent owner, however, could make the rocking chair without infringing the other’s patent. However, the parties could negotiate a cross-license, where both parties pay each other a royalty in exchange for being allowed to manufacture the improved device.

Brett Trout

Patent Patent Lawyer USPTO

Des Moines Iowa a technology paradise

Fast Company has just released its lists of cities dubbed High Tech Hot Spots. Selection is based upon technology, talent and tolerance. Des Moines just missed being named a "Fast City," but did qualify as one of two "Cities on the Verge". Des Moines just missed being named one of the top three High Tech Hot Spots due to its lack of diversity.

Personally, I do not know what they are talking about. We have both types of people here in Des Moines: Country and Western. (Thank you, thank you. Remember to tip your wait staff before you leave). Actually, that one was just for Cowboy Steen. According to the Des Moines Register, the news comes at the perfect time, getting techies to notice Des Moines right as tech jobs in the city are expanding at an exponential rate.

Another interesting Des Moines related technology story showed up on eBay. Upset that his iPhone is merely a shiny fragile paperweight until AT&T gets its poo together, a West Des Moines non-working iPhone owner (I wonder if he was standing in line with me) has set up an iPhone eBay auction for this functional equivalent. Those wacky West Des Moinians. I wonder if he has a patent on that?

Thanks to Martha for the lead.

Brett Trout

iPhone Des Moines Fast Company High Tech Hot Spots

The New Face of Non-compete Agreements

The Internet has changed the face of Non-Compete Agreements. Allowing businesses broader, faster reach, The Internet has increased Non-Compete Agreements geographically and decreased them temporally. It used to be that Non-Compete Agreements were limited to a very narrow geographic region, but were allowed to cover a rather substantial period of time. As the Internet has increased customer reach, however, courts are allowing business to define their protectable territory more broadly. In return courts are restricting the time they will allow such broad geographic restrictions to remain in place, given the breakneck speed of online commerce.

West Des Moines Business Lawyer, Rush Nigut provides some valuable information on Non-Compete Agreements, how Iowa courts view them and how you can maximize the value of Non-Compete Agreements to your company.

Rush examines the following three critical Non-Compete factors in depth:

1. Is it necessary for the protection of the employer's business?

2. Is the non-compete unreasonably restrictive of the employee's rights?

3. Is the non-compete prejudicial to the public interest?

Rush also includes alternatives to Non-Compete Agreements and helpful links for those interested in finding out more about this underutilized corporate resource.

Brett Trout

Non-Compete Iowa Employment Law Trade Secrets

My iPhone

Trying to be sly, I figured I would pick up my iPhone at the out of the way AT&T store in the strip mall, as opposed to the Apple store in the posh mall. Well, it would have been a great plan, except for the fact that Apple only gave the AT&T store a tiny fraction of the iPhones they gave the Apple store.

Instead of acknowledging to me that they could count (understandably, they would have had to count both the number of phones available AND the number of people in line and subtract) and telling the fifty-first person in line and every one behind him not to waste their evening, they thought it would be amusing to make their loyal of fans wait. I see how poking hoi poloi in their collective doe-eyes would be more than mildly amusing, but only when I am the poker. Much, much less amusing, however, when I am the gullible rube with the finger in his eye.

I know you are saying "Why did you wait until 5:55 to start waiting in line?" but I had asked the AT&T employees multiple times over the last six months how many phones there would be in town (remember, this is Des Moines, Iowa) and they continually reassured me there would be plenty. That is up until 6:55 when they told me they were out.

Luckily, I still had time to run over to the Apple store and pick one up. The bottom line is that I got the phone, but I am a little bitter that had they provided me with the information they had in hand, I would have not wasted my Friday night and I would have gotten to see world famous Adam Steen's first bullride in Webster City. Instead, I stayed in town and watched the Joffrey Ballet perform.

Yesterday, Adam Steen took me fishing for winning his blog contest. We went with Nate and Matt Owen of U.S. Rodeo Supply. The fish were biting, the beer was cold and the weather was perfect. Even this city boy caught a heap o'fish, which I fear may be fouling the back of Adam's truck as I write. Last night we went to the MMA fight at Well Fargo Arena and watched Chuck "The Reverend" Grigsby and Team Revolution dominate. Congrats Chuck and thanks Adam.

Anyway after a day to play with my iPhone (I never even had an iPod before this), I love it. I can watch YouTube, flick through my album flow and surf the web with unbelievable ease. I am learning more about it every minute. And the more I learn, the more I like. It syncs effortlessly with my Outlook and displays videos crisply. The keyboard is a little difficult to use accurately, but the more I use it, the better I get. Overall, the iPhone is better than I had imagined. Almost makes me forget that AT&T coverage is so horrible. Oh well, at least I will have something to do while I wait to get back into an AT&T coverage area.

Brett Trout

iPhone