Now, I saw in these facts some of the elements of a perfect case. There was Daisy Whiffle, a woman. I looked at her and for the first time I saw she was beautiful – all clients look beautiful to me. There was a strong emotional appeal: a woman’s love for her deceased pet. Plenty of damages – after all, you can’t buy a live rattlesnake every day. But what it obviously lacked was a corporation defendant. In order to remedy this defect I took the deposition of the driver of the other car. 

I found that he owned his own car, that he was unemployed at the time of the accident, and that never in his entire life had he worked for a corporation. I also discovered, however, that eleven years prior to the accident in question, he had purchased a package of bird seed from The Twitter Bird Seed Company. 

It was a simple little transaction, and yet I thought I saw in it a sort of embryonic master and servant relationship, and I thought of that great maxim of law, “olim proquerator semper procurator,” or one an agent always an agent, and that other even more useful maxim, “quid jurores non facient,” or what won’t a jury do; and I knew I had my corporation hooked.

~Robert T. Sloan recounts the case of Daisy Whiffle v. Twitter Bird Seed Company.

Copyright Registration & Fair Use Notes

Slides

Copyright Office Registration Instructions. 

——-

Thanks to everyone who came out to third ward. 

It was a pleasure to talk IP with such charming artists and craftsman. If you have questions or suggestions, feel free to leave them in the comments and/or tweet them over. 

There were a few recurring questions I couldn’t properly answer. I’ll try to work them into a blog post for you. 

Hon. Richard Posner has descended from 7th Circuit Court of Appeals into the trial muck of patent litigation. Posner is the most cited federal judge of the last 100 years.

I’d be terrified. If you need to appeal his order, who do you file with? Ben Franklin? William Blackstone? I don’t know. 

Apple tries a motion for reconsideration, basically appealing a Poser order to Judge Posner himself. 

Posner denies: 

Apple’s motion is troubling. Apple makes two main arguments, and both rest entirely on flagrant misreadings of my March 29 order. Apple’s first argument [is that Posner flubbed a point of patent law about an iPhone finger swipe to a ‘next item’].

I did not make that point, or one like it, about the “next item” function and the horizontal finger swipe that Apple seeks to associate with it.

Apple argues [Posner missed another point of patent law]; but I said the very same thing in my order; Apple perceives disagreement where there is none. There can be no substantive response to this argument of Apple’s, for it argues not against my order but against Apple’s mirage of that order. 

Apple presumably spent a nontrivial amount of time drafting its order, and now I have done the same in responding to it. Yet it seems that Apple brought about this expenditure of scarce resources without first making a careful reading of the page or so of my order against which this motion is launched. Such inconsiderate sloppiness is unprofessional and unacceptable. 

(edited to remove boring parts and actual law). 

In a recent  Essay, Lawrence Fox* argues against proposed changes to the “duty of loyalty.” He likes traditional legal ethics. Like the rules that prevent lawyers from suing their clients (even if the client is “sophisticated”). 

In response, 33 big law shops** have united to label the essay a “diatribe… unpleasant in tone.”

Thats high praise. Here’s a taste of Fox’s double barreled sarcasm:

Why didn’t the ABA give these clients that right earlier? The nerve of the ABA to be so parsimonious with clients’ rights. Are we not fiduciaries putting the clients’ interests ahead of our own? If that is what the clients want (the right to sign an impregnable prospective waiver), we should give it to them. And despite the deafening clamor of sophisticated clients demanding their just deserts, the profession has ignored these clients’ pleas. Indeed, one must wonder why only sophisticated clients should be given this right. We can surely rectify that and let all clients provide their lawyers with these waivers.

I don’t know if there was a cogent rationale supporting the proposed changes. The reply essay wasn’t funny, so I didn’t read it. 

* Old-Timey Lawer. Wears bow-tie, only bar admission “US Supreme Court.”

* Including his own.

Drafting the Patent’s Background and Summary: anything you say can and will be used against you in a court of law.

I’ve been seeing a string of long and overwrought “summaries” recently. These sections don’t create rights, only problems. Keep them short and sweet, around 250 words.

Here’s a sampling of the most recent patents issued to major players, drafted by sophisticated firms:  

Google: Micro-Payment System - US8108306

• Background - 352 words
• Summary - 155

IBM: Method of Transferring Nanoparticles to a Surface - US7520951 

• Background - 121
• Summary - 220

Apple: Head to Head Comparison - US811722

• Background - 325
• Summary - 0

and for good measure, a product design sample:

Oxo: Sink Strainer - US8117685

• Background - 202
• Summary -  247

These guys are doing it right. If your patent attorney is giving you documents with 600+ word summaries, consider changing firms.

Note that Apple appears to be dropping the summary altogether. I’m not sure I’m ready for that, but I admire their moxie.  

I’m thrilled to be teaching a patent class at Docracy with my friend Chris Beckman. Since its the first in a series, I’ll try to set the bar nice and high. 

My general outline is below, but we can be informal and discuss whatever is most interesting. 

• Patent Law Basics
• What is Patent-able? 
• Patent Application 
• Dealing with the Patent Office
• Patent Strategy, Portfolio Design
• Monetize: Sell or License your IP
• Litigation: #@$!

If you have questions or topics you want to discuss, drop them in the comments. I’ll do my best to incorporate them into the discussion. 

Drinks afterward. 

Defendant was convicted taking money “feloniously by fraud and with intent to steal and purloin” (defrauding widows and orphans). The decision reads like a drama. 

Some highlights: 

He had made Mary Ashe’s acquaintance on a train and by his glitter impressed her with his importance; he followed her to Houston, and pretending that he was a man of great wealth and position, he inveigled her into marrying him.

Before Ms. Ashe, the Defendant had glittered, inveigled, married and fleeced two other women. Their testimony was allowed, over the Defendant’s objections, on the issue of intent. 

The braggadocio which he fed them was in large measure identical with that by which he hoodwinked Mary Ashe.

Defendant next argues that there could be no fraud, because nothing he said was proved false: 

He appears to suppose that the prosecution failed on this issue, because it did not show in detail that he was not a man of ample means, that he did not own a racing stable with its proper colors, and that he had no trust funds, “tied up” by income tax troubles, or that he needed money only for temporary pecuniary relief from his embarrassments. That was not necessary, for the record discloses the trail of a patent swindler who three times played upon the credulity of single women, fleeced them of all they had, and abandoned them.  

Finally, Defendant argues Spousal Privilege: spouse cannot testify against spouse. Specifically, the trial judge improperly allowed the prosecution to present a letter the Defendant wrote to his first wife.

Hand summarizes, 

after he had shipped her off to live in Alaska, and had left her substantially without money; he had gone through the form of marrying two other women meanwhile, and he was still living with the second of these, preparing to fleece her, as he had fleeced her predecessors. Surely nothing was better calculated to arouse the detestation of the jury than the letter, with its protestations of continued love and its assurances that he was only awaiting the opportunity to be reunited with her. 

Should this letter be protected by the spousal privilege? Hand says yes. After heaping the imprecations, he overturns the conviction.    

Although it is unusual for spousal privilege issues to arise unless the spouses are estranged, not all estrangements are final, and nothing could more dispose the privileged spouse to treasure enmity and to repulse any overtures of reconciliation than the memory of what will ordinarily rankle as treachery. 

53 African nations out of 193 total in the General Assembly. About 27%.

This is the answer to the classic behavioral economics question (to which you are not supposed to know the answer). So please, if you would like to mess with a grad student sometime, memorize this answer.