Author: Delain Law Office

What Is the DOJ Thinking?????!

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The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

Cuozzo v. Lee, 579 US ____ (2016)

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I was present in the Courtroom for the announcement of the Cuozzo decision by SCOTUS. This decision makes it clear that inter partes review by the USPTO is not appealable, and that the USPTO can institute such review sua sponte (by its own initiative). It’s an interesting decision.

35 USC §314(d) says that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)

35 USC §312 says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.

The “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more. §314(d).

Moreover, a contrary holding would undercut the Patent Office’s significant power to revisit and revise earlier patent grants. Congress would not likely have granted the Patent Office this reexam authority if it had thought that the agency’s final decision could be unwound under some minor statutory technicality related to its preliminary decision to institute inter partes review. Congress has told the Patent Office to determine whether inter partes review should proceed, and it has made the agency’s decision “final” and “nonappealable.” §314(d). SCOTUS’s conclusion that courts may not revisit this initial determination gives effect to this statutory command.

However, the Court limits its green-lighting of the USPTO’s unappealable reviews: “… we need not, and do not, decide the precise effect of §314(d) on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond “this section.”” The Court does not “…categorically preclude review of a final decision where a petition fails to give “sufficient notice” such that there is a due process problem with the entire proceeding, [or] enable the agency to act outside its statutory limits by, for example, canceling a patent claim for “indefiniteness under §112” in inter partes review.”

On Admission to the SCOTUS Bar

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It’s done.

I am now a member of the bar admitted to practice before the United States Supreme Court. I have met all their experience, character and fitness requirements; Chief Justice Roberts granted the motion to admit me on Monday, 20 June 2016.

So what?

For most people, it’s not a big deal when a lawyer gets admitted to this bar; SCOTUS air is pretty rarified and not a lot of cases that apply to the Court actually get heard. Your likelihood of ever getting a case in front of the Nine Wise Ones are probably pretty low. However, when your case IS granted certiorari (i.e., the Court agrees to hear it), you need a lawyer admitted to that bar to argue it before the bench for you.

For the lawyer, it’s a very big deal indeed. This is the highest court in the United States. It’s seriously cool to be on the roster of lawyers allowed to file and argue a case here. Will I ever actually argue a SCOTUS case? I certainly hope not. But it’s nice to have this cannon in my arsenal.

USPTO’s New STEPP Program

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From the USPTO’s website:

“The Stakeholder Training on Examination Practice and Procedure (STEPP) program is administered by the Office of Patent Training (OPT) under the third pillar (Pillar 3, Excellence in Customer Service), of the  Enhanced Patent Quality Initiative (EPQI) and is a new and important part of the USPTO’s mission to deliver intellectual property information and education to external stakeholders.

Training delivered through STEPP is designed to provide external stakeholders with a better understanding of how and why an examiner makes decisions while examining a patent application. In person courses are led by USPTO trainers and based on material developed for training employees of the USPTO.  

Currently, it is anticipated that courses provided through STEPP will be free to attend.  In addition, the USPTO is in the process of determining the applicability of providing CLE credits for attending STEPP courses; however, CLE credit cannot be earned for the first scheduled training session.”

The first scheduled training session is July 12-14 at the USPTO’s campus in Alexandria, VA.

For more information, see the USPTO’s website.

Patent Maintenance Fee Storefront Now Available from the USPTO

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From the USPTO:

“The new Patent Maintenance Fees Storefront is now available. Customers can look up and pay patent maintenance fees using the patent number and patent application number, as in the retired system. We recommend reviewing the information here and on the Fee Payment Transition Resources page to learn more about the Patent Maintenance Fees Storefront’s enhanced features.”

Pets and Property

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This post is a little off-topic.

Dog ownership isn’t about intellectual property and cases that crop up in the course of dog ownership are not about intellectual property, but there’s an interesting case brewing in Georgia for all those who love their dogs … cats … hamsters … goldfish … octopods … hermit crabs … animals. As an animal lover, I cannot resist posting about it.

An owner family spent many thousands of dollars on the care of their pet dachshund, who may have been given a drug in error by the kennel at which they boarded the dog. The dachshund eventually died of its injuries from that overdose, and the owners sued the kennel, demanding that the kennel pay the hefty vet bills for their beloved pet.

If the dog, not a purebred or service animal, were treated as the law habitually treats pets, the owners would be owed precisely zero in damages. But these folks argued that this dog was special to them, she was their friend, their companion, their family member; she was not just property and should not be valued as such.

The high court in Georgia is considering whether a pet — regardless of lineage or training — is worth more than its monetary sale value. How should damages to beloved family pets be decided?

Let’s hope Georgia makes the right decision and overturns centuries of case law that holds that a pet is nothing more than property, like a chair or a table.

Apple v. Samsung at the Federal Circuit

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Apple, Inc. has some pretty cool stuff. They came up with the Macintosh in 1986. They very intelligently niched out of the World of Microsoft Windows. They now give us music, videos, computers, phones, tablets, watches that we can use as phones and all kinds of tekkie goodies. More specifically, they have this nifty slide-to-unlock mechanism on their touchscreen devices (iPhones, iPads; I don’t know about the watch, since I don’t have one). They have the ever-annoying spell correction, and they have an automated data-structure detection system. And, of course, they have patents on their tekkie goodies. The slide-to-unlock mechanism, the spell correction and the automated data-structure detection system have been the subject of litigation between Apple and Samsung.

The US Court of Appeals for the Federal Circuit (“CAFC”) has just invalidated two of Apple’s iPhone patents based on that litigation; one for the slide-to-unlock mechanism, the other for the spell correction, both on obviousness grounds. This is a big deal for Apple; after a jury trial, the District Court had held these patents infringed and awarded damages to Apple amounting to $119,625,000 in damages and ongoing royalties for infringement of the three patents. Oh well; Apple can bid goodbye to nearly $120M in damages and royalties, unless the Nine (currently eight) Wise Ones who sit on the SCOTUS bench decide to grant certiorari on what will almost certainly be Apple’s appeal to them..

Justice Scalia

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Delain Law Office, PLLC joins the country in extending condolences to the family of Associate Supreme Court Justice Antonin Scalia, who died today, 13 February 2016, at age 79.

I am far from the political conservative that Justice Scalia was, so I disagree with many of his opinions. However, I absolutely respect (notice the tense) his eloquence, his persuasiveness and his interpretation of his office. This guy could fight like a tiger for his position yet maintain close personal relationships with those who held the opposite positions against which he fought. The Court, the country, and his family have all lost one of the greats.

BigLaw vs SmallLaw

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BigLaw is charging $1,500 per hour for partners’ time.

I won’t raise my rates; I’m happy with them, I live decently with them, my cats live like the royalty they are with them, and I don’t need to raise them. Geez … $1,500.00 per hour … that’s absurd.

I invite any BigLaw clients who don’t want to pay those rates to reach out and try working with smaller, more cost-effective firms. Our work is every bit as good as that you get from BigLaw firms, our lawyers graduated from top-tier law schools (my law school was #3 in the nation in IP the year I graduated), we handle your matters personally and promptly, and at least I would never even THINK of charging you $1,500 per hour.

We don’t have mahogany offices; our conference room may, in fact, be borrowed from another law firm or even from the public library. That cuts down on the overhead you pay for at $1,500 per hour with a BigLaw firm. We might not be located in midtown Manhattan, but that’s what phones and email are for, and Schenectady office space is WAY less expensive than is office space in midtown Manhattan. And we can often come see you at YOUR offices (yeah … you don’t have to come see us). Have laptop, will travel!

The one potential downside is that smaller law firms tend to concentrate in one or two areas rather than working in every aspect of the law; that’s simply because we have a smaller stable of attorneys in the firm. However, when needed, we can quickly and efficiently put together a dream team to handle any particular matter (I often work with other lawyers and their clients who need IP counsel or business law counsel or even just transactional counsel). We know how to quickly and effectively put together a team of attorneys whose skills are targeted to your needs — and we’re not bound by the borders of our own firm for that.

Think about it.

AVVO Gets Sued for Using a Lawyer’s Professional Information Without Consent

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According to the ABA Journal, a Chicago lawyer is suing the lawyer review and ranking site Avvo “…contending that the company’s online lawyer directory is violating a[n Illinois] state statute by using professional information on the site without permission.”

It’s an odd suit. Evidently, this Chicago lawyer is aggrieved that Avvo compiles data, including her name, from publicly available sources, then uses that compiled information to market its attorney marketing services to lawyers. She sees this as Avvo profiting from her personal information. She hasn’t paid Avvo for its services and doesn’t want them to be able to use her information for their own benefit. Since lots of other lawyers in Illinois have also not paid Avvo for their services but have their personal information used in this same way, this complaint is filed as a class action suit.

It’ll be interesting to see what Avvo’s response to this complaint is. I suspect they’ll basically tell the plaintiff that her suit is a bunch of hogwash, but we’ll see.