.........The Moselle River at Traben-Trarbach
.........photo copyright © Feb 16 2010 by Andis Kaulins

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LAW PUNDIT Thursday, November 27, 2003 11/27/2003 10:37:00 PM [Home] [Print]

Standards of Practice and the Permissibility of Blawg Comments on Attorneys' Legal Blogs

Standards of Practice and Blawg Comments

Here is the Legal Question:
If an attorney permits comments to be posted to his blog by readers of that blog, is he thereby violating the standards of practice of his bar association?

On just that question, Alexander Hartmann's blog jurabilis - bLAWg points us to a vigorous fax and blog exchange between two German lawyers at Udo Vetter's German "Law Blog" at udoslive.blogspot.com (November 27, 2003).

According to the exchange as posted by Vetter, German attorney Ute Rossenhoevel sent Vetter a fax requesting him to take a stand on the question of whether his allowing comments to his blog was in accord with the existing practice standards for attorney advertising in Germany. While admitting that these standards had been relaxed in recent years, Rossenhoevel refers to two German court cases dealing with attorney advertising, as follows:

Guest Books on Attorney Websites - Germany

1. Decision of the Regional Court of Appeals of Nuremberg (Oberlandesgericht Nuernberg), Germany, March 23, 1999, (Aktenzeichen 3 U 3977/98) - a decision involving the propriety of a "guest book" on the website of an attorney. The website JurPC of Professor Maximilian Herberger has created three "headnotes" for this German case which can be read here in German. Below is my unofficial unsanctioned English translation of those headnotes:

1. The operation of a homepage by an attorney is advertising within the context of § 43 of BRAO [BRAO, abbreviation for German Bundesrechtsanwaltsordnung, the German Federal Regulations for Attorneys]; the question of whether "advertising" is present is to be decided pursuant to objective criteria and not according to the ideas or intentions of the homepage operator.
2. A guestbook which is part of a homepage is part of the advertising function which attaches to the homepage itself.
3. A guestbook opens up the possibility for positive statements to be published on the homepage of the attorney about his professional activities; the permissible border of objective information [which can be published about the practice as permissible "advertising"] is thereby overstepped, regardless of the issue of whether a particular statement made [in the guestbook] is true or not.

Guest Books on Attorney Websites - Hungary

It is interesting in this regard to note that the Bar Association of Hungary has also issued practice standards for lawyers which prohibit guest books on attorney websites.

Internet Information on Attorney Websites - Germany

2. Decision of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, September 12, 2001 (Aktenzeichen: 1 BvR 2265/00) - concerning advertising text on a law firm internet page.

This decision is important because it was handed down by the German Federal Constitutional Court, which is the supreme court in Germany for constitutional questions. According to this case, the Federal Constitutional Court held that the regulatory bar authority could not prohibit factually true professionally-relevant text information on attorney websites since such expressions were guaranteed by Article 12 Section 1 of the German Constitution (Grundgesetz), a section which guarantees occupational freedom. Only information which was "misleading" could be prohibited by the regulating bodies.

Unresolved through that case of course is the question of whether a factually true "testimonial" or even the "possibility" of such a testimonial as a blog comment by a 3rd party is permissible on a blawg.

Propriety of Specific Legally-related Domain Names

I might add here another related internet case, the decision of the German Federal Court of Justice (Bundesgerichtshof or abbreviated BGH, Beschluss vom 25.11.2002 AnwZ (B) 41/02) involving the use of the domain name "www.presserecht.de" (Presserecht = Law of the Press) by an attorney. The case was also discussed in a publication of the Federal Bar Association of Germany. Essentially, the court held that an attorney using such a domain name and in fact presenting information on press law, would not be misleading the public into thinking he was the only attorney in this area of law or that he had some kind of monopoly of information on press law. Additionally, the court held that a particular domain name can only be granted once - this was in the nature of the internet - and it was not an unfair advantage that the priority principle "first come, first served" prevailed.

LAW PUNDIT Wednesday, November 26, 2003 11/26/2003 04:10:00 PM [Home] [Print]

Law Firm Websites and Blogs

Law Firm Websites and Blogs

Jerry Lawson at the eLawyer Blog has a posting on law firm website design entitled "Web Site Design As Necktie".

David Maizenberg at AirBlogger concurs in part and dissents in part. Maizenberg thinks that Lawson is right in stating that blogs will be increasingly important for law firms. However, Maizenberg writes as follows about websites, stressing that they will (or should) maintain their importance:

"I tell my clients that they don't merely provide legal services; their "brand" represents an experience: a bundle of activities and interactions that includes legal services, proactive counseling, responsive communications (extranet, wireless, etc), and information. Therefore, I try to ensure that their websites assert the firm's brand (without sacrificing usability of course), so that eventually the experience the firm provides is closely associated with its brand.
Ultimately, the brand will instantly signal - within the confusion and chaos of the marketplace - a clear experience to potential clients."

There is a lot of truth to that statement in a future where the fungibility of law firms will be an even bigger problem than now, especially since increasing percentages of work and client content will occur "neutrally" on the web.

See also David's related April 2003 article on Reed's Law at FindLaw, "A Lawyer's Guide to Reed's Law and the Power of Networks" discussing network interactivity and peer-to-peer networking.

Wheel Mouse Browser Tricks - Change Font Sizes and Get Quick Browser Navigation

Looking for more information on this topic, I was led to SCLLA Blawg (no posts since April 2003), which lists two mouse tricks for wheel mice under IE that are so useful that I post them here again:

Depress the keyboard key CTRL and move the mouse wheel forward or backward to resize the website page font - useful to reduce large script to smaller script for a better overview, or to increase the size of smaller script to larger script for better reading.

Depress the keyboard key SHIFT and move the mouse wheel forward or backward to navigate webpages visited during the current browsing session. This is a very quick way to to do this.

LAW PUNDIT 11/26/2003 02:33:00 PM [Home] [Print]

Law Firm Rankings

Law Firm Rankings

Law Firms in the US ranked by size through the National Law Journal (NLF) are referred to via LawSites.

For rankings of law firms by other criteria see the links at Internet Law Web
which include The Vault - Guide to the Top 100 Law Firms - and the Legal500.com - a list of Top 500 firms worldwide.

LAW PUNDIT 11/26/2003 01:39:00 AM [Home] [Print]

Knowledge Merger - British Library and Amazon

Knowledge Merger - British Library and Amazon

ZDNet reports a Reuters News article of November 25, 2003 that the British Library and Amazon had entered into an e-commerce deal, stating that:

"The British Library announced on Monday it had formed an alliance with Web retailer Amazon.co.uk to sell to the public catalog listings of over 2.5 million literary works from its collection."

We see here that the alliance of online bookselling and knowledge "storage" as a product point to a world of the future in which information - including libraries - will cost bucks at every level.

It is an interesting development not only for itself, but also for the law, expanding the legal field to new kinds of "mergers".

LAW PUNDIT Wednesday, November 19, 2003 11/19/2003 09:50:00 PM [Home] [Print]

Libel Slander Defamation and Blogs

Libel Slander Defamation and Blogs

Stuart Levine in his Tax & Business Law Commentary has an October 30, 2003 posting entitled: " Don't Say I Didn't Warn Ya' ", referring to a potential libel case involving two blogs.

Libel, slander and defamation are always possible problems when we exercise our first amendment right to free speech and freedom of the press, both of which are not without limit. There are and must be bounds for everything in law.

Definitions of Libel Slander and Defamation

Essentially, defamation is an "attack" on the reputation of a person. It is called libel if it is in writing and is known as slander if it is spoken.

Explanations of Libel Slander and Defamation

See the following pages for more general orientation, definitions and explanation of the above-mentioned and associated terms:
Libel Defense Resource Center - includes an online 50-State survey of libel law
The First Amendment Handbook by The Reporters Committee for Freedom of the Press - it treats libel in depth as it affects the media
What is Libel? - short description from writing-world.com
Puerto Rico Criminal Libel Law Struck Down as violating the 1st Amendment (February 4, 2003)
Terms associated with libel cases
Defenses to claims of libel
Privilege and claims of libel
Libel laws generally in some countries other than the US: the UK, Canada, Australia, New Zealand, France, Germany

Liability Insurance for Defamation

If you are a blogger, make sure you have the right liability insurance,
as discussed by Attorney Ivan Hoffman,
and watch your words.

Online Liability for Defamation

Links to the fledgling law of "online liability" are found at:
The First Amendment Center
in an article by Jarrod F. Reich, "Internet & First Amendment: Online Libel" (Reich is still a law student at Vanderbilt)

There seems to be no question that every blogger is liable for what he or she writes on a blog.

Who May be Excluded from Liability

A the same time, the operating website, e.g. blogger.com, typepad.com, or radiouserland.com are seemingly thus far NOT liable for what YOU post online to your blog on those sites, at least based on the following commentary:

In a November 7, 2003 article by Douglas Lee, an Illinois attorney, entitled, "Obscure Internet libel provision hits the big time", Lee discusses Section 230(c) of the Communications Decency Act of 1996 as interpreted by the 9th Circuit in Batzel v. Smith where a 2-1 court decision provides virtual libel immunity to website operators (as opposed to those who have actually written the materials).

What about bloggers who post 3rd-party materials to their blog, i.e. materials they have not written themselves, but which are libelous. Can they be held liable for this material?

As written by the Associated Press at "Bloggers win Libel Protection", Eric Brown, who represented the winning defendent in the suit at Batzel v. Smith, stated:
"It clarifies the existing law..... It expands it in the sense that no court had really addressed bloggers, list serve operators and those people yet, certainly not on the level of the 9th Circuit Court."

No Blogger Immunity - Bloggers CAN Be Sued For Libel

But there should be no blogger euphoria over Batzel v. Smith, nor does the case grant bloggers immunity,
according to the postings of Balkinization ("Can Bloggers be Sued for libel? - Of course they can"), Inter Alia and Unintended Consequences.

Read particularly what Balkin writes. I often do not agree with him on his political postings, but in his legal analysis he is simply superb.

LAW PUNDIT 11/19/2003 07:16:00 PM [Home] [Print]

22 Points on Blawgs

Law Weblogs - Elefant and Lawson

Via George M. Wallace and Declarations and Exclusions we were directed to Carolyn Elefant with Jerry Lawson and their MSBA Solo Conference blog (presentation for the Maryland State Bar Association Solo Day Conference) entitled "What Blogs Can Do for Solo & Small Firm Lawyers".(11/15/03)

To Blawg or Not to Blawg? - 22 postings by Carolyn Elefant & Jerry Lawson

There are 22 separate postings - all of value for anyone thinking of starting a blawg - or even for someone who already has a blawg. I cite them in full here because blawging is a wave of the future and this presentation is simply too good to pass up without referring to it in detail - indeed, the fact that a special blawg was created for this presentation shows still another aspect of what blogs can do by specializing on a subject. Here are the links to the 22 postings:

1. So, What Can Blogs Do for You?
2. Overview
3. What's a Blog and What Makes It Different?
4. Why Do Blogs Have Marketing Potential?
5. A Baker's Dozen Great Things You Can Do With A Blog
6. Blogs As Knowledge Management Tools
7. Blogs As the New CLE
8. Blogs As A Source for Research and Expertise
9. Blogs As A Way to Improve Legal Writing and Analytical Skills
10. Blogs As A Tool to Combat Isolation of Solo/Small Firm Practice
11. Will Blogs Replace Power Point?
12. Blogs for Marketing - New Tool, but Old Rules
13. Blogs As Websites
14. Blogs for FAQs and Advice
15. Blogs as a Newsletter Alternative
16. Blogs As A Public Service
17. Blogs For Establishing Expertise and Credibility
18. Search Engine Visibility
19. Blogs Can Make You A Star
20. So Should I Start A Blog - What to Consider
21. Getting Started
22. Final Comments

What Elefant and Lawson need to add to this presentation are the technical but necessary aspects of blogging such as Permalinks, RSS, etc.
Then it will be perfect.

LAW PUNDIT 11/19/2003 06:11:00 PM [Home] [Print]

Legal Realism and Judicial Decisionmaking



Stuart Buck at The Buck Stops Here in his posting on the "Legal Realism" of Brian Leiter writes:

"Judges are doing what they perceive themselves to be doing most of the time, viz., applying the law as best as they can."


Actually, I find myself in accord on that point, although my agreement on a judge perceiving himself or herself as doing "as best as they can" does not totally exclude the relevance of Brian Leiter's opinion that "what really explains [a judicial decision] is the judge's commitment to non-legal norms (moral, political, economic)." (emphasis added)

Buck admits that the concept of "legal realism" applies to some degree in appellate decision-making since "cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable."

I would not necessarily agree with that entirely, since it supports Leiter too strongly on an issue where he should not necessarily be supported in full.

Indeed, where I disagree with Leiter is on his judgment that "non-legal" norms DO decide judicial opinions, rather than "legal norms", as should be the case under the rule of law.


Surely no one would disagree with the statement that our views of legal norms are guided by the variables of our personality, character, background, and intelligence, and that our views on morality, politics and economics are additional variables for decisionmaking which - to my way of thinking, however - are merely products of the former, more important "personal" variables.

Put differently, we are what we are. A Supreme Court Justice is thus not necessarily applying non-legal political, moral or economic norms to hard cases but, as I see it, is quite clearly applying his personality to the seamless web of the law - but that is a different issue.


Some time after graduating from Stanford Law School and inbetween stints in the corporate department of Paul, Weiss et al., I and several others worked together with the late Professor James Lake (the linked .pdf has a picture of Lake, a Harvard Law grad) of the University of Nebraska Law School on a project to alleviate appellate delay.

The project worked together with the Justices of the Nebraska Supreme Court (I note in passing that the current - not then - Chief Justice John V. Hendry was a former Kaulins family lawyer as a practitioner - a very good man, if I may offer this biased comment). The aim of our project then was to reduce the caseload of the Justices by having qualified personnel write drafts of opinions for them in "easy" cases, i.e. this was work similar to clerks. However, the main difference was that we worked for no particular Justice and were assigned cases at random. We also had no direct contact with the Justices on cases - for ethical reasons. There was to be no influence exerted in either direction. The legal norms were to decide.

The whole idea of the project was of course based on the idea that "legal norms" DO decide cases and my experience in fact indicated that this was generally so. In many of the appealed cases, the law was so clear that there was really no real question about the judicial outcome so that judicial decisionmaking proceeded along the legal norms found in our draft opinions, although each Justice always wrote their OWN opinion, even if it relied on our drafts. In cases which were not clear, however, the Justices were far more likely to take the complete writing of an opinion into their own hands, and it seemed to me that it was the personality and character of the judges which then surfaced predominantly in their decisionmaking and opinions, not necessarily their moral, political or economic views, which seemed quite similar. During this time I saw very little evidence that "non-legal" norms decided cases.


Legal norms are derived from lessons learned and experience gained from events which occur in day-to-day society over the timeframe of millennia so that events and legal norms form a symbiotic partnership. But this does not mean that the non-legal norms are DETERMINATIVE of judicial decisionmaking. Rather, legal norms are INFLUENCED by the prevailing morality, politics and economics of the times, and the prevailing legal norms are thus similarly subject to change to accord with those changing times. Still, it would seem to me that judges nevertheless apply the law as they see it and that most of them surely would describe their work as serving "the rule of law".


Indeed, if judges ONLY applied non-legal norms, then law would be valid only for the short-term, guided by the serendipity of the present. The fact that law sustains itself over the long term and the fact that legal norms have developed and grown over thousands of years suggests that in fact, judges do prevailingly decide by applying "legal norms" and NOT by falling back on non-legal popular norms of the moment, at least in our Western society, where the "rule of law" is seen as the governing force.

The situation may be different in societies where the rule of law is not the basis of government and where men rule by fiat, religious conviction and the whim of the moment. Indeed, it would seem that THESE societies are the ones that are currently the enemies of the Western world.

LAW PUNDIT 11/19/2003 05:24:00 PM [Home] [Print]

Corporate Governance - New SRO Standards

Corporate Governance - New SRO Standards

TheCorporateCounsel.net Blog aka known as Broc Romanek's Blog has been posting on corporate governance and has a November 19, 2003 posting entitled: "What to Disclose under the New SRO Standards".

For an informative October 27, 2003 discussion of SRO's (self-regulatory organizations) by Rachel McTague and the Securities Regulation & Law Report at BNA's Corporate Law & Business Professional Information Center see her article here.

The background for the new standards can be read at the March 26, 2003 statement by SEC Chairman William H. Donaldson entitled "Letter to Exchange Officers Regarding SRO Corporate Governance", where Donaldson writes:

Self-regulatory organizations play a critical role as standard setters for issuing companies, operators of trading markets, and front-line regulators of securities firms. At the urging of the SEC, two of the self-regulatory organizations, the New York Stock Exchange and NASDAQ have both proposed new corporate governance listing standards for publicly traded companies, and the SEC continues to help them harmonize their proposals to the extent possible.

As Broc notes, Donaldson then also has delivered a later speech concerning corporate governance.

Particularly of interest to corporate lawyers are the future corporate governance webcasts which are discussed at Broc Romanek's Blog. The links to GreatGovernance.com are also useful.

LAW PUNDIT Friday, November 14, 2003 11/14/2003 11:51:00 PM [Home] [Print]

Eolas Patent to be Reviewed

Eolas Patent to be Reviewed

The Eolas Patent is to be reviewed by the US Patent and Trademark Office (USPTO).
See the CNET article of November 11, 2003 by Paul Festa, Staff Writer, CNET News.com.

Eolas Patent 5,838,906 at the USPTO

One can access the record of this patent at the USPTO website by entering the Patent Nr. 5,838,906 in the appropriate search box which gives, inter alia, the following results:

Application Number - 08/324,443 Customer Number: -
Filing or 371(c) Date: 10-17-1994 Status: Patented Case
Application Type: Utility Status Date: 10-13-1998
Examiner Name: DINH, DUNG C Location: -
Group Art Unit: 2756 Location Date: 11-10-2003
Confirmation Number: 5163 Earliest Publication No: -
Attorney Docket Number: 02307553 Earliest Publication Date: -
Class/ Sub-Class: 395/200.32 Patent Number: 5,838,906
First Named Inventor: MICHAEL D. DOYLE, ALAMEDA, CA (US) Issue Date of Patent: 11-17-1998

Eolas Patent 5,838,906 at the USPTO - File History

File Contents History
Number Date Contents Description
57 11-05-2003 Application scanned in CRU and can be accessed by the REPS system in the Public Search Room
56 10-30-2003 Record a Petition Decision of Granted for Commissioner-Initiated Reexam Rroceeding
[Note of LawPundit: This in part mistyped garbled text in a case of this importance does not inspire confidence in the USPTO]
55 10-30-2003 Petition Entered
54 02-23-2001 Termination of Official Search
53 02-23-2001 Case Found
52 02-23-2001 Official Search Conducted
51 02-23-2001 Case Reported Lost
50 11-17-1998 Recordation of Patent Grant Mailed
49 10-13-1998 Weekly Patent Issue Receipt
48 07-13-1998 Weekly Patent Issue Receipt
47 04-07-1998 Mailroom Date of Issue Fee Payment
46 06-11-1998 Drawing(s) Processing Completed
45 06-02-1998 Drawing(s) Matched to Application
44 05-06-1998 Application Received to Match Drawing(s)
43 04-15-1998 Power to Make Copies and/or Inspect
42 04-09-1998 Application Ordered to Match Drawing(s)
41 04-09-1998 Drawing(s) Received at Publications
40 04-07-1998 Mailroom Date of Drawing(s)
39 10-31-1997 Miscellaneous Incoming Letter
38 11-07-1994 Information Disclosure Statement (IDS) Filed
37 03-30-1998 Mail Notice of Allowance
36 03-30-1998 Notice of Allowance Data Verification Completed
35 01-27-1998 Examiner Interview Summary Record (PTOL - 413)
34 03-30-1998 Notice of Allowability
33 03-02-1998 Notice of Appeal Filed
32 03-02-1998 Request for Extension of Time - Granted
31 01-22-1998 Date Forwarded to Examiner
30 12-29-1997 Amendment after Final Rejection
29 12-29-1997 Supplemental Papers - Oath or Declaration
28 12-29-1997 Request for Extension of Time - Granted
27 11-06-1997 Examiner Interview Summary Record (PTOL - 413)
26 11-06-1997 Examiner Interview Summary Record (PTOL - 413)
25 08-25-1997 Mail Final Rejection (PTOL - 326)
24 08-22-1997 Final Rejection
23 06-19-1997 Date Forwarded to Examiner
22 06-05-1997 Response after Non-Final Action
21 03-26-1997 Mail Non-Final Rejection
20 03-21-1997 Non-Final Rejection
19 02-24-1997 Examiner Interview Summary Record (PTOL - 413)
18 02-20-1997 Date Forwarded to Examiner
17 02-19-1997 Amendment after Final Rejection
16 01-24-1997 Mail Final Rejection (PTOL - 326)
15 01-23-1997 Final Rejection
14 01-08-1997 Date Forwarded to Examiner
13 01-08-1997 Amendment after Final Rejection
12 01-08-1997 Affidavit(s) (Rule 131 or 132) or Exhibit(s) Received
11 12-13-1996 Mail Final Rejection (PTOL - 326)
10 12-12-1996 Final Rejection
9 10-09-1996 Date Forwarded to Examiner
8 08-09-1996 Response after Non-Final Action
7 05-06-1996 Mail Non-Final Rejection
6 05-03-1996 Non-Final Rejection
5 04-08-1996 Case Docketed to Examiner in GAU
4 03-24-1995 Case Docketed to Examiner in GAU
3 03-14-1995 Application Captured on Microfilm
2 12-30-1994 Application Is Now Complete
1 11-18-1994 Incomplete Application under Rule 53(b) - Filing Date Assigned

Eolas Patent 5,838,906 at the USPTO - Abstract

Clicking the button "Published Documents" at that same page gives, inter alia, the following text:

"United States Patent 5,838,906
Doyle , et al. November 17, 1998
Distributed hypermedia method for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document

Abstract [of the Patent]
A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects. The user may select the program object from the screen. Once selected the program object executes on the user's (client) computer or may execute on a remote server or additional remote computers in a distributed processing arrangement. After launching the program object, the user is able to interact with the object as the invention provides for ongoing interprocess communication between the application object (program) and the browser program. One application of the embedded program object allows a user to view large and complex multi-dimensional objects from within the browser's window. The user can manipulate a control panel to change the viewpoint used to view the image. The invention allows a program to execute on a remote server or other computers to calculate the viewing transformations and send frame data to the client computer thus providing the user of the client computer with interactive features and allowing the user to have access to greater computing power than may be available at the user's client computer."


[Eolas Patent 5,838,906 at the USPTO - Summary of the Invention]


The present invention provides a method for running embedded program objects in a computer network environment. The method includes the steps of providing at least one client workstation and one network server coupled to the network environment where the network environment is a distributed hypermedia environment; displaying, on the client workstation, a portion of a hypermedia document received over the network from the server, where the hypermedia document includes an embedded controllable application; and interactively controlling the embedded controllable application from the client workstation via communication sent over the distributed hypermedia environment.

The present invention allows a user at a client computer connected to a network to locate, retrieve and manipulate objects in an interactive way. The invention not only allows the user to use a hypermedia format to locate and retrieve program objects, but also allows the user to interact with an application program located at a remote computer. Interprocess communication between the hypermedia browser and the embedded application program is ongoing after the program object has been launched. The user is able to use a vast amount of computing power beyond that which is contained in the user's client computer.

In one application, high resolution three dimensional images are processed in a distributed manner by several computers located remotely from the user's client computer. This amounts to providing parallel distributed processing for tasks such as volume rendering or three dimensional image transformation and display. Also, the user is able to rotate, scale and otherwise reposition the viewpoint with respect to these images without exiting the hypermedia browser software. The control and interaction of viewing the image may be provided within the same window that the browser is using assuming the environment is a "windowing" environment. The viewing transformation and volume rendering calculations may be performed by remote distributed computer systems.

Once an image representing a new viewpoint is computed the frame image is transmitted over the network to the user's client computer where it is displayed at a designated position within a hypermedia document. By transmitting only enough information to update the image, the need for a high bandwidth data connection is reduced. Compression can be used to further reduce the bandwidth requirements for data transmission.

Other applications of the invention are possible. For example, the user can operate a spreadsheet program that is being executed by one or more other computer systems connected via the network to the user's client computer. Once the spreadsheet program has calculated results, the results may be sent over the network to the user's client computer for display to the user. In this way, computer systems located remotely on the network can be used to provide the computing power that may be required for certain tasks and to reduce the data bandwidth by only transmitting results of the computations.

Table II, below, shows an example of an HTML tag format used by the present invention to embed a link to an application program within a hypermedia document.

TYPE = "type"
HREF = "href"
WIDTH = width
HEIGHT = height
">" [parentheses around the arrows added by LawPundit to disable this command in this posting]

In any case, that gives an overview of the "invention". Were the patent laws intended to apply to these kinds of patent claims? Has anything really been "invented"? Or is this patent an anomalistic anachronism of outdated patent laws?

Further Citations to the Eolas Patent

Further citations to the Eolas patent are:

via moreover.com at InternetLawWeb, the USPTO decision to review the patent was reported by BeSpacific

E-Week "Eolas Remains Confident in Face of Patent Re-examination" by Matt Hicks, November 12, 2003

Electric News Net, "US Patent Office will review Eolas claim", by The Register, November 13, 2003

Seattle Times, " 'Outcry' from Internet community triggers rare patent review", by Jonathan Krim, The Washington Post

BizReport, "Patent Office Reviews Disputed Web Patent", November 13, 2003

SunSpot.net, "U.S. reconsiders 1998 patent critics say could hamper Web", November 14, 2003

CBSNews, "Internet Patent In Dispute", November 12, 2003

LAW PUNDIT Wednesday, November 12, 2003 11/12/2003 11:18:00 AM [Home] [Print]

Free Martha Stewart - Celebrities Academia Law SEC Stocks Investment Criminal Sanction

Celebrities Academia SEC Stocks Investment Criminal Sanction

Celebrities, Academia and Law meet as Alex Tabarrok at Marginal Revolution in a posting entitled Free Martha! references Professor Bainbridge who, according to Tabarrok, has opined (in Tabarrok's words) "that Martha [Stewart] is innocent of insider trading", and as Tabarrok adds: "He ought to know, as he wrote the book on insider trading law."

Knocking the High and the Mighty from their Pedestals

So why was Stewart charged at all for - essentially - merely acting on what Bainbridge describes as a "hot tip" through her broker, Merrill Lynch, which is legal behavior.

Somewhat disturbing is Bainbridge's statement:
"I don't particularly like Martha Stewart's public persona. Like a lot of people, I get a vicarious little thrill out of seeing the high and mighty brought low."
The price of fame?

What is the Proper Job of the SEC and the Department of Justice?

Apparently, here is a case of the SEC - and the Justice Department - going after the high and the mighty just to bring them down a notch. Surely it should not be the job of the SEC to charge people with insider trading just because they are celebrities. Yet, this appears to be the case, since, as Bainbridge notes, the SEC has merely brought a civil complaint [apparently frivolously], against Stewart, while the Justice Department is not following the SEC's interpretation of either facts or law, and is merely charging Stewart with "conspiring to obstruct justice".

What is Obstruction of Justice?

"Obstruction of Justice" is a crime that I often interpret to mean that "the accused did not play along with the authorities in helping them to prove a crime that may not have been committed in the first place". It is sort of a catch-all crime to get people you can get for nothing else. I definitely think that this is one crime - the obstruction of justice - that should be taken off the law books except for unique, isolated cases.

The Criminal Sanction is Unsuitable for many so-called "Crimes"

Indeed, substantial changes need to be made in our perception of the role of the criminal law in our society, where the criminal law is applied to a host of areas - such as so-called "white-collar economic crimes" - for which the criminal law was originally never intended and where its application is not only often absurd, but generally yields no visible societal benefit, other than to keep government officials and lawyers busy with make-work. Or does it make any sense at all to lump marijuana plant growers, habitual drunks, child molesters, murderers, bigamists, tax evaders, repeat automobile thieves, habitual false parkers or insider traders in one jail cell? Hardly. We will talk about this topic in the future in greater detail.

The Legal System has Better Things to do

Frankly, the legal system should have better things to do than to involve people like Martha Stewart in criminal proceedings just because she is a celebrity who is buying and selling stocks and - like everyone else - trying to make a profit in doing so, also through the fact that she "knows people". Anyone who follows stock prices knows that there are often large movements of stock which generally precede ANY material announcement about a company's welfare. Information is the name of the game in investment. As Bainbridge writes:
"Charging [Martha] with insider trading stretches that crime beyond where it was ever meant to go."

The SEC should be made Accountable for its Work

The SEC is playing the high and the mighty here, and frankly, it is THEY who should be taken down a few notches. THEIR JOB is to improve the flow of correct securities information to the public, not just to wield their powers in an arbitrary way - and they have NOT been doing a good job of this, if we take cases such as Enron as an example. That kind of thing should simply be impossible, if the regulatory mechanisms were properly working.

I did quite a bit of SEC work in my old law firm in New York City and no matter what the registration, there were always new "Mickey Mouse" changes required by the SEC in newly submitted - often boilerplate - documents - NOT for the purpose of improving the document's information value, but merely to show who was boss. The same wording submitted and OK'd the week before was found deficient one week later. As one senior partner in the firm in those days commented, "we simply make the changes required, it would be a waste of time to dispute with the SEC about these things."

If the SEC were properly doing their job and concentrating their efforts on ESSENTIALS, rather than exerting their influence on the high and the mighty, giant flops such as Enron would be less likely.

Stocks and Investments - the Main Rule is Caveat Emptor

In addition, I personally have no sympathy for those who have lost money through Enron. When investors make windfall profits on the stock market, they put that money in their bank accounts without uttering a sound. When the market goes the other way and losses are made, the investing community always screams fraud on the part of the principals and/or their lawyers, rather than biting the bullet and admitting that they simply made an unsound investment. Trying to make a profit means risk and the person potentially making the profit should bear the burden of that risk. The risk should not be shouldered by the taxpayers, through the medium of government. The same people yelling about high taxes on their profits are the first to call on Uncle Sam for help when they have stupidly invested their money in the wrong firm and stand to lose money.

The University of California, Enron and Eolas

Disturbing is also the fact that the lead plaintiff in the Enron case, the University of California, lost $145 million in the process. Someone should put the financial dealings of this university under a microscope. The U of C invested money in Enron - between May 2000 and November 2001 - at the same time that it was making contracts with Enron for services - as Enron's largest customer in California. I would call that a fiduciary conflict of interest.

It was the U of C which also assigned an exclusive license of the university-funded rights to browser "embedding", whatever these legal rights may actually turn out to be, to private individuals at Eolas - essentially a one-man firm, which has since won a big money judgment from Microsoft (which may not stand, but we will have to wait and see). According to a posting at Slash.dot, Eolas would get 75% of the verdict and the University of California only 25%. Something stinks if that is true. What kind of a licensing agreement is that? If there were a true belief at that time that this was some kind of a pioneering discovery, no-one would give away a 75% interest for nothing. In any case, I would say that the responsible officials at the University of California ought to be examined for whether they possibly violated their fiduciary duties to the university and why they did so.

The Government is NOT a guarantor for Investments

Caveat emptor - buyer beware.

The government should not be made to function as a guarantor that investments will be profitable. By definition, if some companies make profits, some will make losses. There will be successful and capable executives and others who will prove incompetent and untrustworthy. Deals of all descriptions are the name of the business game. Big money will be made - and lost. Win or lose. Most of the capitalist world is hype and scam - I am a capitalist mind you, but a capitalist who understands the system - and the purpose of Madison Avenue advertising is to get you to buy a lot of things you really do not need and can get by without. The modern economic system of the world is largely based on a type of "fraud" upon the consumer, because it is constantly presenting that consumer with a make-believe world that he should allegedly purchase or buy into. But this does not mean that capitalist perpetrators (perps in the novo lingo) belong in jail. This brings nothing. There is no real societal retribution - this is better served by confiscating illegally acquired wealth - and the deterrent effect of criminal sanctions in the economic sector is virtually non-existent. Enron has had no impact on liability insurance, which one would surely have expected.
The market is guided by supply and demand - and necessity.

LAW PUNDIT Tuesday, November 11, 2003 11/11/2003 04:25:00 PM [Home] [Print]

Law and the Advantages of Blogs

Law and The Advantages of Blogs

Bag and Baggage - Denise Howell, appellate and intellectual property lawyer has a November 7, 2003 posting entitled "What Has Your Blawg Done For You, Your Clients, Your Profession, Lately?"

Here is an excerpt...

"One of the biggest benefits I derive from Bag and Baggage, and people are constantly surprised by this, is the way it keeps me informed ... I've found blogs to be incomparably more effective at keeping me up to speed on developments (societal, business, and legal) ... than the combination of newsletters, newspapers, magazines, and CLE events which used to serve this function...."

Read the whole posting here.

LAW PUNDIT Thursday, November 06, 2003 11/06/2003 12:05:00 AM [Home] [Print]

Stars Stones Scholars : The Decipherment of the Megaliths as an Ancient Survey of the Earth by Astronomy

Stars Stones Scholars : The Decipherment of the Megaliths as an Ancient Survey of the Earth by Astronomy


What does the Law Pundit do when not teaching law, writing law-related dictionaries, quilling the LawPundit or playing a rule-conforming game of golf?


The Law Pundit studies ancient history, a seemingly "lawless" scholarly area which has been wrongfully ignored by the men of the law for far too long. After all, the major primary written sources of man's ancient cultures are LEGAL TEXTS, e.g. the Tablets of Ebla, the Code of Hammurabi, or yes, even the Commandments of the Bible - there are of course many more than ten laws in the Books of Moses, but you do have to READ and KNOW the Bible to find this out, which, apparently, the men who have a fixation on the Ten Commandments, have apparently never done.


As stated at the previous link:
"The Bible chapter that contains the Ten Commandments (Exodus) follows the recitation of the Commandments with a complete set of legal rules, which are based on the "eye for an eye, tooth for a tooth" legal philosophy of Hammurabi's Code. " [emphasis added]

Did you know that many basic precepts of our modern laws are found in those Biblical legal rules, as these FOLLOW (at Exodus 22) the Ten Commandments (i.e. "laws" at Exodus 20) in the Books of Moses?

Open your Bible and take a look.
Biblical sources are full of law.


Through the abandonment of the field of ancient history - which is rightly the realm of the men of the law - to non-legal minds, this field has since been misappropriated by the archaeologists and related professions, none of which formally studies either Law, Evidence or the Scientific Method in their education - and, frankly, their often faulty work and publications - often based on hearsay or even less probative evidence than that - greatly manifest these shortcomings.

Stars Stones Scholars : The Decipherment of the Megaliths as an Ancient Survey of the Earth by Astronomy

In this regard, the Law Pundit's new book just appeared as Stars Stones Scholars : The Decipherment of the Megaliths as an Ancient Survey of the Earth by Astronomy. We clear up some major errors in this area of scholarship - and hopefully, point things the right way. Ancient history is NOT a discipline which the men of the law should leave entirely to the digging professions or to the religious fanatics - we see every day in our current events what disasters this can lead to.

LexiLine : The History of Civilization and Law

We note in closing that The Law Pundit also hosts a list on the history of civilization.

Only when law is understood in its historical context, in its entire spectrum of development from mankind's first glimmerings concerning natural law and the order of the universe - which, according to Bertrand Russell, is a process that began initially with astronomy and man's observation of the order of the spheres - only then, can we fully understand the field of law as it is today.

Or, as I always ask, it is fine to believe in God, but where do we get the idea that God is in heaven and not elsewhere?

LAW PUNDIT Wednesday, November 05, 2003 11/05/2003 04:14:00 PM [Home] [Print]

Justice Scalia - the Infant Terrible of the US Supreme Court?

Justice Scalia - the Infant Terrible of the US Supreme Court?

Via the Curmudgeonly Clerk and Crooked Timber, we are directed to a Slate article by Dahlia Lithwick at Scaliapalooza - The Supreme Court's pocket Jeremiah. The article has some very strong opinions on the personal behavior of US Supreme Court Justice Antonin Scalia.

Everyone has to Play by the Rules - Particularly Justices

I myself am ambivalent about Justice Scalia's person - he has to decide himself how he thinks that a Supreme Court Justice should behave - if he acts improperly, the world about him and his peers will always exert their pound of flesh for his improprieties - articles such as those by Lithwick are one price you have to pay.

Of course, once you rise to a high position in society, you have little choice but to play by the rules, or you pay the consequences down the road. After all, a judge makes his living by requiring OTHERS to play by the rules - that is his profession, so he has no choice but to temper his own behavior to serve as a model for those who must abide by his dictates. Judges who show no respect for the law, and this means the opinions handed down by their predecessors, can hardly expect anyone to show respect for THEIR legal opinions, can they?

Judge Learned Hand - Herbert Packer - Gerald Gunther

During my student days, when I was the student assistant for Herbert Packer at Stanford Law School, my first task was to devise a system of organization for the private collection of papers of Judge Billings Learned Hand, which had been entrusted to Packer for research purposes. (This collection later went to the late Professor Gerald Gunther after Packer's untimely death, and resulted in a book Gunther published by the Harvard University Press entitled Learned Hand: The Man and the Judge.)

I recall one handwritten note made by Judge Learned Hand to his colleague Judge Clark on the 2nd Circuit Court of Appeals - it was a custom of the 2nd Circuit to exchange written memos on cases being decided - which went something like this (I paraphrase since I no longer have the original text): "You probably wonder why I spend all of this time dealing with the precedents of former cases, weighing and sifting, even though we have decided to overrule these precedents in the instant case. This is of eminent importance, but you will never learn this from me, never from me!" It was an exasperated Learned Hand who apparently was trying to get his fellow judge to understand that respect had to be paid to the case law that was in force prior to their decision, but he was apparently making little headway with Judge Clark.

Even a Justice is but a Cog in the Wheel

On this score, I am afraid that Justice Scalia might be the subject of the same wrath of Judge Learned Hand, and rightly so, for the reasons given above. What Justice Scalia or for that matter ANY Justice of the Supreme Court thinks as a judge is only one small cog in the giant wheel of American jurisprudence that has been turning long before these Justices and will turn long after them. So no Justice should overestimate his own importance on the continuous spectrum of the American legal system. He or she, as we all, has a JOB to do.

Liberty Lies in the Hearts of Men - not in Law Cases

In this regard, one of my favorite quotes from Judge Learned Hand is this, from the Yale Alumni Magazine on June 6, 1941:

"I often wonder whether we do not rest our hopes too much upon
constitutions, upon laws, and upon courts. These are false hopes;
believe me, these are false hopes. Liberty lies in the hearts of men
and women, when it dies there, no constitution, no law, no court can
save it
; no constitution, no court, no law can even do much to help it.
While it lies there it needs no constitution, no law, no court to save

One of my great concerns about America and the world is precisely this "liberty" in the hearts of men. In America itself, many god-fearing men and women, nothing wrong with being god-fearing, have however lost this "liberty in their hearts" and want to force THEIR religion upon others - upon the children of others through the force of "Under God" in the Pledge of Allegiance, upon their brethren by placing Biblical monuments such as the Ten Commandments in government places. On the other side of the world, other men and women, who have also lost this "liberty in their hearts" want to force THEIR religion upon the rest of world by terror. I have nothing in common with this type of religious tyrrany. This not the "liberty in the hearts of men" which makes great nations - rather, the forcing of YOUR religion upon others is merely fascism in disguise, and nothing more.

We must recall that America was founded by religious groups who left England so that they could practice religion the way THEY wanted to practice it, and not the way someone else told them to do it. It is something we should not forget. When foreign religions threaten our own religious freedoms, these religions should expect to be destroyed, without shedding a tear. But we should not threaten our own religious freedoms ourselves.

Oral Argument and Verbal Brow-Beating

In closing, I note that Lithwick in her article as cited above, makes the following observation about Justice Scalia: "There is a didactic quality to Scalia's performance on the bench--a sense in which he uses oral argument merely to lecture and browbeat his brethren--that is hard to escape."
But of course, this merely confirms what I wrote previously about questions raised by judges in oral argument as a method of either verbal attack (on those disfavored) or verbal assistance (to those favored ).

What is a Supreme Court Justice's Job?

If I may offer a comment generally: some Justices may think that their JOB is merely to decide cases - but this of course would be false. Sometimes, it is not even that important what decision is made - but it has to be made in accordance with the principle of the rule of law. Throughout the history of mankind, "judges" have been the last repository of civilization and reason - we merely have to look in the Bible for periods when "Judges" had to rule, because the rulers and/or the people they ruled had lost their reasoned senses. Hence, "all judges" including the Supreme Court Justices are subject to a higher standard of behavior than any other branch of government - and this is something which should be apparent in their personal acts and demeanor. Either this, or they are in the wrong job.

LAW PUNDIT Tuesday, November 04, 2003 11/04/2003 08:47:00 PM [Home] [Print]

The US Constitution - of Inequities and Education

The US Constitution and the Inequities of our Day

Via Lessig,
The Stanford Daily Online Edition has an October 20, 2003 article by Whitney Sado & Camille Ricketts, which reports on a law panel held at Stanford Law School.

The law panel included US Supreme Court Justice Anthony Kennedy, Law School Dean Kathleen Sullivan, Law Profs. Pamela Karlan and Lawrence Lessig, as well as History Prof. Jack Rakove, all of whom have written about the US Constitution and Constitutional Law.


The Stanford Daily Online article states:
"In discussing Brown and the preceding Plessy vs. Ferguson case, which set the foundation for the "separate but equal" doctrine, [US Supreme Court Justice] Kennedy added, " 'We are blind to the inequities of our own times.' "

My comment here
is that NOT EVERYBODY is blind to the inequities of their own time.

However, it is undoubted that many people surely ARE blind to these inequities, not just in the political and legal sphere, but in all fields of human endeavor, including education and science.

Why is that?
Is it true that men are only moved when they are pushed?
Is it true that men are only moved when they are pushed hard?

Or is it just mass ignorance?


In that same Stanford Daily Online article, Kennedy is reported as saying:
"A democracy will fail if there isn't a will to uphold its universal values.... It requires people to be interested and knowledgeable about the Constitution."

Agreed. Agreed.

So, perhaps MORE should be done in the schools to get the students - as future citizens - to UNDERSTAND their Constitution and perhaps LESS should be done to force things such as the indoctrinational Pledge of Allegiance down their throats or to force the placement of some devout man's personal religious symbols such as the Ten Commandments in our schools or office buildings.

Many in our nation have their "priority wires" crossed.

How about making a test of the understanding of the U.S. Constitution a prerequisite for getting into college?
That would be a start.

See ETS on the Issues for more on educational tests.

LAW PUNDIT 11/04/2003 06:26:00 PM [Home] [Print]

The Other Side of Patents

Via LawMeme - The Forgotten Inventor of Surround Sound, Steven Wu points us to a November 2, 2003 article by Dave Scheiber in the St. Petersburg Times entitled "Sound Recognition".

The author of the article, Dave Scheiber, is the cousin of Peter Scheiber, who is the inventor of "quadrophonic sound", and his article relates the trials and tribulations of his cousin in the patent law and litigation world.

As I understand that article, Scheiber was too much his own lawyer and did not properly bring in the right legal professionals to protect his interests as an inventor. His experiences are a lesson to every prospective inventor. If you DO make a signficant discovery capable of patentability, get the best patent lawyer you can find and recognize that while you may be an expert in YOUR chosen field, you are not an expert in the law. Scheiber simply made too many legal and negotiation-related mistakes along the way and now has been left holding an empty bag. But it appears to be his own fault, not a fault of the law.

LAW PUNDIT 11/04/2003 01:18:00 AM [Home] [Print]

The US Supreme Court - For God's Sake - No Questions

The US Supreme Court - For God's Sake - No Questions

In a very interesting article by Charles Lane in the Washington Post online entitled Questions From the Bench Seen as Clues to Final Outcomes (washingtonpost.com), Lane discusses a forthcoming article by Sarah R. Levien, 25, a third-year student at Georgetown University Law Center, who claims to have discovered a system for predicting the Justice's decisions in a given case.


The key, as Levien has discovered by sitting in on US Supreme Court oral arguments,
is to observe the judges in their questioning of lawyers during those oral arguments.

She found that:

1. Few questions to one party to a case means they are going to win.
2. Many questions to one party to a case means they are going to lose.
3. Friendly questions to one party to a case means they are going to win.
4. Hostile questions to one party to a case means they are going to lose.

In other words, questions during oral argument seemingly are not made by the Justices in order to clarify difficult issues of law in the minds of the judges at the time of oral argument, but rather to put the parties in their proper places, as winners OR losers. In other words, it would appear that the judges already have their minds made up and their decisions made - prior to oral argument. So what is the point of oral argument? Is this not a colossal waste of time? Or is it done to show the authority of the court - as in the phrase "WE ask the questions around here" - the personal touch??


Actually, I was not surprised by Levien's findings in the least. But listen, "I have a question...."
What does this mean about the asking of questions in our society as a whole?


Watch your next political press conference and you will see the same above phenomenon at work. The news media in a press conference do NOT ask questions to clarify difficult issues in their mind - or in the minds of their public - as based upon the answers given to them by the person to whom the questions are directed.

Rather, questions are used as a weapon of either verbal attack or verbal assistance. In fact, we have observed long ago that you can usually quite easily tell the partisan affiliation of reporters by the manner and substance of their questions. The reporters usually have an AGENDA they are pushing. They are NOT merely interested in NEW FACTS or BETTER ANSWERS.

In any case, the next time you are faced with questions, ponder the circumstances.

LAW PUNDIT Sunday, November 02, 2003 11/02/2003 02:17:00 PM [Home] [Print]

Patent Law and Policy : FTC Report : Bonito Boats v. Thunder Craft Boats : Selden Case : Eolas Case

FTC Report on Patent Law and Policy

Via The Cover Pages we were led to an FTC link and from thence to the PDF Text of the recent FTC Report on promoting innovation through the proper balance of competition and patent law and policy as well as the Executive Summary of that same report. We referred to this report in our previous blog posting.

A second forthcoming report by the FTC and the Antitrust Division of the Department of Justice (DOJ) will make similar recommendations for antitrust law.

No. 87-1346 Supreme Court of the US, 489 U.S. 141; 109 S. Ct. 971; 103 L. Ed. 2d 118;
57 U.S.L.W. 4205; 9 U.S.P.Q.2D (BNA) 1847; 1989 U.S. LEXIS 629

The FTC Report linked above cites to Bonito Boats, Inc. v. Thunder Craft Boats Inc., a US Supreme Court case in which Justice O'Connor delivered an opinion for a unanimous Supreme Court on the issue of federal patent law. The holding and discussion in that opinion are important for an understanding of the future of patent law everywhere, also as regards the internet.


In Bonito Boats, the US Supreme Court held that a Florida statute [protective of the Florida boat industry] which prohibited the use of "the direct molding process" to duplicate unpatented boat hulls was pre-empted by the supremacy clause (Art VI (2)) and that federal patent law prevailed.


JUSTICE O'CONNOR delivered the opinion of the Court.

[This case is excerpted by LawPundit. The three-dot symbol ... means text in the decision has been omitted either by us or by the Court (in some text citations). Bracketed material [example] has been added by LawPundit. Sources in the decision have been put in bold text by LawPundit and articles within sources in italics.]

Article I, § 8, cl. 8, of the Constitution gives Congress the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the "Progress of Science and useful Arts." As we have noted in the past, the Clause contains both a grant of power and certain limitations upon the exercise of that power. Congress may not create patent monopolies of unlimited duration, nor may it "authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966).


From their inception, the federal patent laws have embodied a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy. Soon after the adoption of the Constitution, the First Congress enacted the Patent Act of 1790, which allowed the grant of a limited monopoly of 14 years to any applicant that "hath ... invented or discovered any useful art, manufacture, ... or device, or any improvement therein not before known or used." 1 Stat. 109, 110. In addition to novelty, the 1790 Act required that the invention be "sufficiently useful and important" to merit the 14-year right of exclusion.... Section 2 of the Act required that the patentee deposit with the Secretary of State, a specification and if possible a model of the new invention, "which specification shall be so particular, and said models so exact, as not only to distinguish the invention or discovery from other things before known and used, but also to enable a workman or other person skilled in the art or manufacture ... to make, construct, or use the same, to the end that the public may have the full benefit thereof, after the expiration of the patent term." ...

The first Patent Act established an agency known by self-designation as the "Commissioners for the promotion of Useful Arts," composed of the Secretary of State, the Secretary of the Department of War, and the Attorney General, any two of whom could grant a patent. Thomas Jefferson was the first Secretary of State, and the driving force behind early federal patent policy. For Jefferson, a central tenet of the patent system in a free market economy was that "a machine of which we were possessed, might be applied by every man to any use of which it is susceptible." 13 Writings of Thomas Jefferson 335 (Memorial ed. 1904). He viewed a grant of patent rights in an idea already disclosed to the public as akin to an ex post facto law, "obstruct[ing] others in the use of what they possessed before." Id., at 326-327.


Jefferson also played a large role in the drafting of our Nation's second Patent Act, which became law in 1793. The Patent Act of 1793 carried over the requirement that the subject of a patent application be "not known or used before the application." Ch. 11, 1 Stat. 318, 319. A defense to an infringement action was created where "the thing, thus secured by patent, was not originally discovered by the patentee, but had been in use, or had been described in some public work anterior to the supposed discovery of the patentee." Id., at 322. Thus, from the outset, federal patent law has been about the difficult business "of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not." 13 Writings of Thomas Jefferson, supra, at 335.


Today's patent statute is remarkably similar to the law as known to Jefferson in 1793. Protection is offered to "[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." 35 U. S. C. § 101. Since 1842, Congress has also made protection available for "any new, original and ornamental design for an article of manufacture." 35 U. S. C. § 171. To qualify for protection, a design must present an aesthetically pleasing appearance that is not dictated by function alone, and must satisfy the other criteria of patentability. The novelty requirement of patentability is presently expressed in 35 U. S. C. §§ 102(a) and (b), which provide:

"A person shall be entitled to a patent unless --

"(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or

"(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the date of application for patent in the United States ...."

Sections 102(a) and (b) operate in tandem to exclude from consideration for patent protection knowledge that is already available to the public. They express a congressional determination that the creation of a monopoly in such information would not only serve no socially useful purpose, but would in fact injure the public by removing existing knowledge from public use....


In addition to the requirements of novelty and utility, the federal patent law has long required that an innovation not be anticipated by the prior art in the field. Even if a particular combination of elements is "novel" in the literal sense of the term, it will not qualify for federal patent protection if its contours are so traced by the existing technology in the field that the "improvement is the work of the skillful mechanic, not that of the inventor." Hotchkiss v. Greenwood, 11 How. 248, 267 (1851). In 1952, Congress codified this judicially developed requirement in 35 U. S. C. § 103, which refuses protection to new developments where "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person of ordinary skill in the art to which said subject matter pertains." The nonobviousness requirement extends the field of unpatentable material beyond that which is known to the public under § 102, to include that which could readily be deduced from publicly available material by a person of ordinary skill in the pertinent field of endeavor. See Graham, 383 U.S., at 15. Taken together, the novelty and nonobviousness requirements express a congressional determination that the purposes behind the Patent Clause are best served by free competition and exploitation of either that which is already available to the public or that which may be readily discerned from publicly available material. See Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979) ("[T]he stringent requirements for patent protection seek to ensure that ideas in the public domain remain there for the use of the public")....

The novelty and nonobviousness requirements of patentability embody a congressional understanding, implicit in the Patent Clause itself, that free exploitation of ideas will be the rule, to which the protection of a federal patent is the exception....


In our decisions in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964), we found that publicly known design and utilitarian ideas which were unprotected by patent occupied much the same position as the subject matter of an expired patent....The Court stated [in Sears]:

"... An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so...." 376 U.S., at 231.

A similar conclusion was reached in Compco, where the District Court had extended the protection of Illinois' unfair competition law to the functional aspects of an unpatented fluorescent lighting system. The injunction against copying of an unpatented article, freely available to the public, impermissibly "interfere[d] with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain." Compco, supra, at 237....


[The Florida Statute in question] ... enters a field of regulation which the patent laws have reserved to Congress. The patent statute's careful balance between public right and private monopoly to promote certain creative activity is a "scheme of federal regulation ..." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Congress has considered extending various forms of limited protection to industrial design either through the copyright laws or by relaxing the restrictions on the availability of design patents. See generally Brown, Design Protection: An Overview, 34 UCLA L. Rev.1341 (1987). Congress explicitly refused to take this step in the copyright laws, see 17 U. S. C. § 101; H. R. Rep. No. 94-1476, p. 55 (1976), and despite sustained criticism for a number of years, it has declined to alter the patent protections presently available for industrial design. See Report of the President's Commission on the Patent System, S. Doc. No. 5, 90th Cong., 1st Sess., 20-21 (1967); Lindgren, The Sanctity of the Design Patent: Illusion or Reality?, 10 Okla. City L. Rev. 195 (1985). It is for Congress to determine if the present system of design and utility patents is ineffectual in promoting the useful arts in the context of industrial design.

By offering patent-like protection for ideas deemed unprotected under the present federal scheme, the Florida statute [in question] conflicts with the "strong federal policy favoring free competition in ideas which do not merit patent protection." Lear, Inc., 395 U.S., at 656. We therefore agree with the majority of the Florida Supreme Court that the Florida statute is preempted by the Supremacy Clause, and the judgment of that court is hereby affirmed...."

[End of the Supreme Court decision excerpted by LawPundit.]


The FTC boxes the following text in its Executive Summary PDF:

"An Invalid Patent on an Obvious Invention Can Harm Competition.

In 1895, George Selden obtained a U.S. patent with a claim so broad
that "it literally encompasse[d] most automobiles ever made." Yet
the basic invention covered by that claim - putting a gasoline engine
on a chassis to make a car - was so obvious that many people
worldwide thought of it independently as soon as the most primitive
gasoline engines were developed. The association that licensed the
Selden patent collected hundreds of thousands of dollars in royalties
- raising costs and reducing the output of automobiles - before
Henry Ford and others challenged the patent, and the patent claim
was judicially narrowed in 1911. See MERGES & DUFFY, PATENT

We find strong parallels between the Selden case and the current Eolas patent claim on "embedding" various "engines" (plug-ins) on the "chassis" (architecture) of existing software.

How was the Selden patent case resolved? See the account of events at Facts On File.

LAW PUNDIT 11/02/2003 01:35:00 AM [Home] [Print]

US Patent Reform Seems Necessary

Via The Locker Gnome I was directed to a link to The Register and an October 30, 2003 article by John Leyden entitled: "FTC calls for US patent reform".

Leyden reports that the Federal Trade Commission (FTC)
"has issued a report calling on the US Patent and Trademark Office to apply tougher standards in granting patents" and advises that "Congress should also establish a mechanism to permit companies to challenge patents more easily".

LAW PUNDIT Saturday, November 01, 2003 11/01/2003 01:55:00 PM [Home] [Print]

Grutter and Gates Gender-Genied

Glenn Reynolds cited to a recent speech by Bill Gates which gender-genied as follows:
Words: 5015 Female Score: 5332 Male Score: 7438 - 58%

- there is that same balanced blend found among the inaugural addresses of the US Presidents.
You just have to be easy-going, relaxed and a nice guy to be popular.

How would U.S. Supreme Court Decisions fare under the Gender Genie?
Are judicial decisions male or female? Let us look at the recent Grutter case as an example.

The US Supreme Court decision in Grutter v. Bollinger

Grutter v. Bollinger No. 02-241. Argued April 1, 2003--Decided June 23, 2003

The final paper which I assigned to my students in last year's FFA law and legal research class at the University of Trier Law School was to decide the Grutter case - i.e. before the case was actually decided by the U.S. Supreme Court in June, 2003. The student papers were due in February, 2003. The result of this assignment was for me at that time surprisingly balanced, as the ca. 200 students were split in their decisions right down the middle. Even the arguments raised in the later actual opinions of the Justices were all well anticipated in advance in the student papers - there were thus no surprises.

Mild surprises do appear however when the Justices' opinions in Grutter are gender-genied, as follows:

Justice O'Connor wrote the majority opinion (the case was decided 5-4) gives this gender-genied result:
Words: 9096 Female Score: 6847 Male Score: 11657 - 63% male

Justice Ginsburg, with whom Justice Breyer joins, concurring, gender-genies as:
Words: 687 Female Score: 312 Male Score: 581 - 65% male

Chief Justice Rehnquist, with whom Justice Scalia, Justice Kennedy, and Justice Thomas join, dissenting, (tables omitted), results in:
Words: 2295 Female Score: 1668 Male Score: 3072 - 65% male

Justice Kennedy, dissenting, is similar in word distribution to most of the other justices
Words: 2448 Female Score: 2231 Male Score: 3460 - 61% male

Justice Scalia, with whom Justice Thomas joins, concurring in part and dissenting in part, surprises us
Words: 790 Female Score: 641 Male Score: 811 - 56% male


Justice Thomas, with whom Justice Scalia joins as to Parts I-VII, concurring in part and dissenting in part.
(long Frederick Douglass quote removed), has written the opinion with the most "male" words.
Words: 7701 Female Score: 5076 Male Score: 10238 - 67% male.


Certainly a spread of 56 % to 67% in male opinion-wording among all these Justices gives no conclusive result. The fact is, they are all pretty similar from this point of view. Or - asked differently - is it normal that they are similar?

In other words, Gender Genie still needs a lot of work before it is "market ready". The basic idea of this kind of "text test" is of course most certainly correct, i.e. that maleness and femaleness is manifested in our choice of words.

However, this choice of words is greatly affected by the subject matter in question and the purpose of our writing. We can presume that more forceful writing will be more male (i.e. more aggressive) and more conciliatory writing will be more female (i.e. less aggressive), even if the two writings are made by the same person, whether male OR female.

See the various divergent results for LawPundit as posted at Punditmania.

Words have to be weighed.

LAW PUNDIT 11/01/2003 01:05:00 PM [Home] [Print]

Law Pundit - Gender Genie says we are better than 4:1 Male

Via InstaPundit, the LawPundit site is now Gender Genied via the bookblog where I ran LawPundit posts through the gauntlet. The full results are posted to Punditmania. Included are also Presidential Inaugural Addresses, the Declaration of Independence, and the original U.S. Constitution.

Is LawPundit the male champion of blogging? Is that good?

The above analysis of the Presidents indicates that a good balance is better - at least for "social success", which the unisex (metrosex) world of fashion, deodorants and so on, only confirms. Even the rugged Abe Lincoln had his unruly photos "touched up" for public consumption. Civilization has the drawback that men are domesticated and pacified. Perhaps this is the main difference between Western Civilization and the savages we are battling worldwide: it is civilized discipline versus the uncivilized barbarians of the rest of the world.

Gender Genie Score of this posting: Words: 137 Female Score: 42 Male Score: 303. Q.E.D.

LAW PUNDIT 11/01/2003 02:54:00 AM [Home] [Print]

The Eolas Case - W3C Intervenes in Internet Patent Battle

Everyone should look at this development in the EOLAS patent case.

As most everyone now knows, Eolas won a patent infringement claim against Microsoft recently. The prevailing result of this claim - if it is allowed to stand - threatens to torpedo basic internet technology, since it essentially claims sole ownership of the invention of "embedding", which is a standard internet software procedure long established.

It is in fact remarkable that such an "idea" could ever have been allowed to be patented. Here is - again - a case of (alleged) research conducted at the university level at TAXPAYER cost, from which private individuals are now attempting to stuff their personal pockets at the expense of us all. Legal or not, it is an abomination.

Tim Berners-Lee, Director of the World Wide Web Consortium (W3C) and widely regarded as the father of the World Wide Web, is now going after Eolas, claiming that their patent is invalid due to prior art.

In an October 28, 2003 letter to James E. Rogan, Under Secretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office - see US Patent Office '906 Letter - Berners-Lee alleges that the Eolas patent should be revoked based on "new evidence uncovered by the W3C HTML Patent Advisory Group (PAG)," showing that the Eolas patent was in fact based on prior art which was freely availabe for more than a year prior to the Eolas filing.

See SitePoint for a nice article about these developments.

Let us all hope that Berners-Lee and the W3C prevail in this patent issue and that Eolas and the people who have a financial interest in this company get the ignominious fate which they all deserve. And if that occurs, as we should all wish and hope that it does, let us hope that this case sets an example for all future imitators, that this kind of thing will not be tolerated by the internet world.

The Eolas case thus far brings out some of the worst fears about the absolutely foolish and unnecessary legal application of many copyright and patent laws to the World Wide Web - fears voiced by Larry Lessig in his book Code. The copyright and patent laws were not intended for the internet - at least not in the same form as they were intended for mechanical inventions and books, and thus should not be applied to the internet in the same manner. Rather, Congress should make correspondingly divergent laws to keep the internet from being ruined by a few greedy copyright-claimants and patent-seekers. In fact, the copyright system as well as the entire patent filing system is drastically in need of legislative modernization.

As usual, a basic problem here is the US Congress, which has done next to nothing about these issues. As noted here,
"Many of these issues are so arcane that getting Congress' attention to them is a challenge," said [Todd] Dickinson, now a partner at law firm Howrey Simon Arnold & White in Washington.

The word "arcane" by the way means "known or understood by only few". Is our Congress up to the job at hand?

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