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IP ADR Blog 
Recent developments in the law that impact the processes and procedures by which attorneys and their clients resolve IP disputes
Post Frequency: 1.1/day Last Entry: November 14, 2009 at 12:06:54 Recent Entries: 351
By Les Weinstein, Michael Young, John Leo Wagner, Eric van Ginkel, and Victoria Pynchon
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Von Dutch Tradename Settlement Gives Rise to Legal Malpractice Action and Questionable Mediation Confidentiality Decision
Posted on November 14, 2009by Michael D. Young Here we go again. A California appellate court has judicially created another exception to mediation confidentiality -- this one for alleged attorney malpractice occurring during the mediation but outside the presence of the mediator or opposing parties...
Insurance Coverage for Trademark Infringement Actions
Posted on November 13, 2009Whether a commercial case can be settled or not often depends upon the existence of insurance coverage. This opinion - answering the question "yes" for a trademark infringement action - was sent down by the California Court of Appeal today...
Are We Having a Conversation or a Meeting with the Choir: Cass Sunstein and Cyperpolarization
Posted on October 29, 2009If you'd like to better understand what's really going on in separate-caucus mediation and, by the way, also in famous "conversation" happening in the blogosphere, do check out the New Yorker's Cass R. Sunstein and Political Rumors on the Internet by Elizabeth Kolbert...
Arbitration's "Down" Side: Two Years of Proceedings; $20 Million in Punitives; and, No Appeal
Posted on October 27, 2009This just in from the Ninth Circuit -- In re Bosack -- an opinion affirming the trial court's refusal to vacate an arbitration award totaling nearly $20 million after proceedings that "lasted two years, during which more than sixty days of hearings were held, more than twenty witnesses testified, and over five hundred exhibits were entered into evidence...
The Benefits of Interest-Based Negotiation in IP Disputes
Posted on October 27, 2009I've been thinking jurisprudential thoughts for the last couple of weeks because I'm finishing the second draft of the ABC's of Conflict Resolution and because I made the terrible error of trying to cover the history of dispute resolution in Blawg Review # 234 (as Ed...
Dispute Resolution and Social Media Online Event Announcement
Posted on October 25, 2009ODR WEEK 2009 Web 2.0: Going from OH? To KNOW! Friday October 30th 2:30pm - 3:30pm est. (it will be archived too!) Spots limited, see below. Join Jeff Thompson (www.enjoymediation.com & Centre For Peace & Social Justice) and an all-star lineup of Mediate...
Using the Power of Social Media to Win Copyright Fight
Posted on October 23, 2009The following from Carolyn Elefant at My Shingle: [T]his recent article from NPR . . . reports on Rock Art, a local Vermont brewery that successfully fended off a copyright challenge by the national company that makes Monster energy drink...
We Welcome IP Watchtower to the IP Blogsophere!
Posted on October 20, 2009That incredibly bright, accomplished and talented woman ringing your virtual doorbell is not -- I repeat not -- trying to sell you her religion, but is delivering up-to-the-minute news and analysis on the most important intellectual property issues of the day...
We Welcome IP Watchtower to the IP Blogosphere!
Posted on October 20, 2009That person ringing your virtual doorbell is not -- I repeat not -- someone trying to sell you magazine subscriptions or somebody's else's religion. No! That's the incredibly bright, accomplished and talented Erica Bristol delivering up-to-the-minute news and analysis on the most important intellectual property issues of the day...
Negotiating Resolution with Hi-Lo Agreements
Posted on September 22, 2009Below, ADR Services colleague Ralph Williams' September 2009 ADR Tip. High - Low Agreements, also known as "Mini - Maxi" agreements are used to limit or bracket arbitration awards and jury verdicts. They can be made at any time before the award/verdict is rendered...
Negotiating Women at ForbesWoman
Posted on September 21, 2009Yes, that's my article right below Michelle Obama's. Sometimes you've just GOT to brag!
If You Haven't Given Legal Blogging a Second Thought, Think Again!
Posted on September 18, 2009If this tremendous article on legal blogging (and in particular ADR blogging) from this summer's ABA Dispute Resolution Magazine Only Connect the Impact of Blogging on the Field of ADR by Diane Levin doesn't make you want to immediately run to blogger...
Challenges to Mediation and Mediated Settlement Agreements in the Courts with a Link to ADR Malpractice Series
Posted on September 15, 2009Pertinent to my new series on avoiding ADR malpractice, there's a great (but now dated) law review article entitled "Disputing Irony: a Systematic Look at Litigation Concerning Mediation" (.pdf) ( Harv. Negot. L. Rev, 2006) (summary here) that is a "must read" for anyone who settles many of their lawsuits in mediated negotiation sessions...
Anatomy of a Software Licensing Mediation
Posted on August 13, 2009Here's a great post on the mediation of a software licensing dispute from Disputing by Peter S. Vogel. After receiving a Temporary Restraining Order ('TRO') the Judge ordered a mediation conference between the plaintiff software licensor and their customer in Alabama...
Lawyer and Neutral David Allgeyer on Arbitrating Patent Disputes
Posted on August 13, 2009In Search of Lower Cost Resolution: Using Arbitration to Resolve Patent Disputes By David A. Allgeyer Patents and other forms of intellectual property are extremely important to most businesses. Companies have come to realize that their intellectual property often represents their most important asset...
Patent Infringement Prevention from High-touch Legal Services
Posted on August 10, 2009I was just alerted to a new Start Up Company Blog -- The High-touch Legal Services Blog - which recently provided a little good advice for licensees entering into nonexclusive patent license agreements below. So, if you enter into a nonexclusive patent license agreement as licensee, make sure the licensor is obligated to stop third-party infringement...
Antitrust Attack on Reverse Payment Settlements in Pharma Patent Cases
Posted on August 10, 2009This just in from Weil Gotshal's Summer 2009 Antitrust Update: DOJ Allies with FTC in Antitrust Attack on Reverse Payment Settlements; While FTC Also Seeks Legislative Solution by WG attorneys Ausra O Pumputis and Alan R. Kusinitz. The term 'reverse payment' in the context of pharmaceutical settlements encompasses agreements reached between patent holders and an alleged infringing manufacturer of a generic version of the patent holder's branded drug in which monetary or other consideration flows from the patentholder to the alleged infringer...
How to Respond to Cease and Desist Orders from Trademark Owners
Posted on August 09, 2009(left, the T-shirt at issue) We talk a lot about the resolution of IP litigation here, but not a lot about IP conflict prevention. I've long said that the best insurance against liability is good relationships. The New York Times Magazine today (in its terrific "Consumed" column by writer Rob Walker - author of Buying In) demonstrates the way in which responsible and respectful action following a trademark infringement claim can lead to a happy collaborative resolution...
Are You Certain You Don't Have Coverage for the IP Dispute?
Posted on August 08, 2009Once, a long, long time ago in a legal practice far, far away, I represented, for a brief time, the interests of Guess? in litigation against Jordache. Many years after I'd left the firm for which I was an associate at the time, I learned that both companies had "gone behind their lawyers backs" and settled the long-running, acrimonious litigation, and proceeded to sue their attorneys for malpractice...
WIPO Mediation Case Studies
Posted on August 03, 2009From the files of the World Intellectual Property Organization Set out below are examples of mediations conducted under the WIPO Rules. The Center also makes available a summary overview of its caseload. These examples have been prepared while respecting the confidentiality of WIPO proceedings...
Negotiating in Bad Faith
Posted on July 28, 2009Some time ago I conducted a survey about "bad faith" in negotiation. I facilitate the negotiated resolution of lawsuits several times a week. During at least half of those negotiations, one party or another at some point in the process will say "they're negotiating in bad faith!" This is a sign to me, the facilitator, that the speaker believes his bargaining partner is engaging in some type of conduct he believes to be unfair or oppressive...
Eight Challenges to the Successful Mediation of Patent Cases
Posted on July 27, 2009Seasoned mediators say that the negotiation does not really commence until the parties reach impasse. The eight impediments to settlement of patent cases on appeal listed by Chief Circuit Mediator Amend in Patent Mediation on Your Horizon? are impasse creators, not settlement preventers...
Best IP Settlement Advice in the Role of a Cartoon Character
Posted on July 27, 2009Courtesy of Charles Fincher at the LawComix Blog. My own personal best deposition-settlement story: our settlement team was in London while I completed the corporate designee deposition. Condition of settlement: the designee's deposition would never be transcribed...
PEZ vs. PEZ
Posted on July 26, 2009Read all about it at Pez takes on the museum of Pez. Why don't the parties enter into an affordable licensing agreement with the fee reflecting the value to Pez of a Pez Museum. I hate the term "win-win" but goodness gracious! this does seem to be more of a benefit than a burden for Pez! And litigation is as yesterday as, well, Pez!! Thanks to Grant Griffiths of Blawg Tweets for making it so easy to cruise the blawgosphere and a special thank you to 3C Patent Law (a new IP Law Blog to me) for the great write-up and image which I'm copying here.
Successful Fed Circuit Mandatory Mediation Program Takes a Patent Dip in First Half of '09
Posted on July 24, 2009by Robert Rose of Sheldon Mak Rose & Anderson In 2005, following the lead of the other United States Courts of Appeals, the Federal Circuit initiated a pro bono Appellate Mediation Program. James Amend is the Chief Circuit Mediator, and the program is administered by Wendy Dean, the Circuit Mediation Officer...
"Spinning" the Story from In the Loop
Posted on July 24, 2009O.K., so this clip is not from In the Loop but from Armando Iannucci's BBC television series 'The Thick of It," a series that "looks at the misadventures of a cabinet minister and the pressure he is under from the Prime Minister's office and one particularly prickly policy enforcer, Malcolm Tucker, a character who also appears in 'In the Loop...
Patent Arbitration - Abiding By the Rules
Posted on July 14, 2009by Robert J. Rose of Sheldon, Mak, Rose & Anderson The arbitration of all patent disputes, including patent validity, is governed by 35 USC § 294 and the Federal Arbitration Act, Title 9 of the U.S. Code. Of special note, and likely to be overlooked, is the statutory obligation to give notice of any award by an arbitrator to the USPTO...
Making Aggressive Opening Offers
Posted on July 11, 2009(right, Amy Poehler as the Dollar takes a beating from the Euro on SNL) Because people often ask me about the wisdom of making aggressive opening offers, I'm summarizing one of my favorite articles on anchoring by a Kellogg Graduate School of Management Professor...
Litigation Accounting for In-House Counsel
Posted on July 11, 2009Our good friend John DeGroote talks with Law.com about Making Sense of Corporate Warfare. Excerpt below. Full must-read article at the link. Creative litigation executives are adopting a new frame of reference resembling a business accounting program...
Mediator's Proposal: Take It or Leave It by Robert J. Rose of Sheldon Mak
Posted on July 11, 2009by Robert J. Rose * of Sheldon Mak Rose & Anderson Both sides seem to be progressing to resolution, but have hit a wall. Is it time for the mediator to make a proposal for settlement? If so, should the mediator use the value that the case is worth (which one side or the other likely won't accept), or the value that the mediator thinks will settle the case? The typical 'mediator's proposal' is given to both sides as a take-it-or-leave-it proposition to resolve the case...
They Must Still Be Doing Mediation Opening Statements in Texas
Posted on July 11, 2009Follow LawComix on Twitter here and Charles Fincher's hilarious law partners Richard Prickman and BeatriceBitcher (of Bitcher and Prickman) here and here because practicing law is just too hard not to roll on the floor laughing out loud at least once a day.
The RIAA Strikes Again
Posted on July 07, 2009(image from Modern Humanist) RIAA Wants Harvard Prof to Take Case Recordings Off the Web Posted Jul 6, 2009, 03:25 pm CDT By Sarah Randag The Recording Industry Association of America says that Harvard Law Professor Charles Nesson is violating court orders and privacy laws by posting recordings of pretrial hearings and depositions to his blog and to the Berkman Center for Internet and Society website...
Negotiating the Global Environment on Independence Day
Posted on July 04, 2009(image from Lift Think) On this Independence Day celebrating U.S. freedom from the tyranny of foreign rule, I'd like us to consider whether a new day might be added to our holiday calendar -- Global Inter-dependence Day. This thought is spurred by the New York Times' Green, Inc...
Is Your Settlement Agreement Durable? Leaving Terms Open for Future Agreement
Posted on July 03, 2009Though the recent Ninth Circuit opinion of Nutraceuticals v. Mucos Pharma (.pdf) is notable for setting the standard for preliminary injunctive product recall relief in a trademark infringement action, IP ADR's interest is stimulated by the settlement agreement that purportedly resolved the parties' dispute but failed to head-off this expensive and protracted litigation (after the preliminary injuncitve relief hearings; the appeal; and, the return of the case to the trial court, what further litigation damage do the parties have the stomach and budget to sustain?) With apologies to Strunk & White & my 8th grade English teacher who first assigned The Elements of Style for the hopelessly run-on sentence above...
Oh Canada! Will It Abandon Attempt to "Losso a Locomotive with Cobwebs"?
Posted on July 03, 2009(image from the Digital Standards Organization) Thanks to Law is Cool (An Extraordinary About Face on Copyright Reform) we learn that Canadian Ministers Finally Embrace Canada's Digital Future. Below, an excerpt from the LawBytes column of TheStar...
One Day You're a 140-Character Text Box and the Next Day You're a Defendant
Posted on July 03, 2009This Time, Tony La Russa Settles With Twitter for Real St. Louis Cardinals manager Tony La Russa has officially dismissed his lawsuit over a fake profile on Twitter as part of a settlement in which the social media website did not have to pay him anything...
Oh Canada! Will It Abandon Attempt to "Lasso a Locomotive with Cobwebs"?
Posted on July 03, 2009(image from the Digital Standards Organization) Thanks to Law is Cool (An Extraordinary About Face on Copyright Reform) we learn that Canadian Ministers Finally Embrace Canada's Digital Future. Below, an excerpt from the LawBytes column of TheStar...
Tactics of the Adept Practitioner in Modern IP Mediation
Posted on June 28, 2009I'm sharing today a power point presentation that was the basis of an ALI-ABA IP Mediation seminar conducted by me and David Donoghue of Holland + Knight. The course outline with bios is here. The course itself can be found here. This presentation is modified from one I presented with the Hon...
Texas Jury Buys Tivo's Bull?
Posted on June 26, 2009IP Trial Strategy: Buying Tivo's Bull Zusha Elinson The Recorder June 26, 2009 getNumber('1202431771710') As the make-or-break patent trial between Tivo Inc. and EchoStar Corp. got under way in Marshall, Texas, Tivo's top brass had an idea: Let's buy a cow...
Make Progress, Not War: IP in the 21st Century
Posted on June 26, 2009What can be done to . . . . to stop the international 'IP war'? Read the full-on analysis of the problem to appreciate this excerpt of the solution at Duncan Bucknell's IP Think Tank here. (or download a .pdf here) The lengthy article by by Dr. Roya Ghafele, Lecturer, University of Oxford is more than worth your time...
What does it all mean?
Posted on June 24, 2009Thanks to Geoff Sharp for posting this video at Mediator Blah Blah after a lawyer told him he "didn't believe in email. What does it all mean? It means that our ability to adapt, to think critically, and to innovate is critical to our survival as an economic power on the planet...
Yes You ARE Making Irrational Decisions: What to Do About It
Posted on June 11, 2009From National Public Radio with thanks to Don Philbin, mediator and arbitrator in San Antonio, Texas for posting it to the Commercial and Industry Arbitration and Mediation Group on LinkedIn. People Make Irrational Choices Kahneman was surprised by the pure visceral power of his own certainty...
Beat the Recession with Negotiation Training Now!
Posted on June 06, 2009Negotiation TrainingView more OpenOffice presentations from Victoria Pynchon.
Unsurprising Speculation on Bratz Litigation Resolution: Licensing Agreement in the Works
Posted on June 04, 2009Doll Dispute Edges Toward a Deal from the Los Angeles Daily Journal (for subscribers only; excerpt below) RIVERSIDE - The Bratz doll copyright fight appears to be edging closer to a settlement, with lawyers for two dueling toy manufacturers reviewing a mediator's proposal with their clients in attempts to resolve their differences...
Best Blog Posts First Quarter from 3 Geeks and a Law Blog
Posted on May 29, 2009It's quite a list but here's my favorite: Reality: the Enemy of Innovation? from The Creative Class, excerpt below. Almost everything that we think is real is actually a construction of inferences and interpretations that we misinterpret as reality...
Conflict Avoidance and the March of Science
Posted on May 25, 2009In today's Los Angeles Times, columnist Michael Hiltzik rightly worries that Investor Funded Research Could Bring the March of Science to a Standstill. The story used to highlight the problem goes like this: Dr. Philip H. Schwartz spent six years providing university researchers with neural stem cells cultured by a method he had helped invent at the Salk Institute in La Jolla...
Arbitrating that International IP Dispute? Check out Fulbright's International Arbitration Report
Posted on May 25, 2009Read about recent disputes and issues looming over them. Topics include: Developments Affecting the Choice of Arbitral Seat and Institution in China-Related Contracts Applications Under Section 1782 to Obtain Discovery in International Arbitration English Court Grants Order in Support of Arbitral Tribunal's Peremptory Order Developments in Electronic Disclosure in International Arbitration U...
Hat tip to Virginia Construction
Posted on May 19, 2009Hat tip to Virginia Construction Lawyer Christopher Hill for this "Courtoon" by the extremely multi-talented federal appellate attorney David Mills.
Building Your IP Practice with a Dynamic Social Network
Posted on May 17, 2009Put the power of Web 2.0 to work for you while you're sleeping! Internet defamation attorney Adrianos Fachetti; entertainment attorney Gordon Firemark; class action attorney H. Scott Leviant; Barger & Wolen Marketing Director Heather Milligan and I will be presenting Social Networking for Lawyers: A Roadmap to Success Session 1 (9:15-10:30) at the Second Annual LACBA Solo and Small Firm Convention on June 25, 2009...
Negotiating the Market: 2009 IP Law Firm Marketing Slogan Award to McDonnell Boehnen Hulbert & Berghoff LLP
Posted on May 15, 2009mbhb we know the drill When a law firm takes the time and trouble to at least be clever, it tends to make potential clients believe in its claims to be creative and innovative. That's why we're awarding the IP ADR Blog 2009 IP Law Firm Marketing Slogan Award to the firm of McDonnell Boehnen Hulbert & Berghoff LLP...
Negotiation Strategies with Bart Greenberg of Manatt Phelps
Posted on May 13, 2009Negotiation Strategies View more presentations from Bart Greenberg.
More Wisdom (with Statistics!) from the IP Maximizer Blog
Posted on May 05, 2009(right, my own best legal advice - if the litigation won't likely net you $5 million, take your legal fees to Vegas - you'll have a lot more fun losing them there) If you're not reading Jackie Hutter's IP Asset Maximizer Blog you're way behind the curve...
Negotiating from a Position of Weakness? Let Deepak Malhotra Show You How to Leverage That Weakness to Win
Posted on April 20, 2009Negotiating to Win from a Position of Weakness View more presentations from nasscom.
China, Patents and Cross-Cultural Innovation
Posted on April 13, 2009Thanks to Dan Harris in my twitter network (twitter.com/danharris) for leading me to Aimee Barnes' blog and in particular her recent post, U.S.-China Business -- Check Your Stereotypes at the Door. Building a multi-lingual and multi-cultural team with a wide array of professional experiences will fuel innovation, foster understanding and promote synergy with your global clients...
The American Institute of Mediation Opens its Doors
Posted on April 08, 2009In anticipation of working out Affiliated Organization agreements with SCMA and CDRC, current members of those two organizations (and others in the very near future) will receive special Enrollment Discounts as a benefit of your membership in either of those groups...
Los Angeles Daily Journal Profiles Mediator Victoria Pynchon
Posted on March 27, 2009Hands-on Approach Mediator Victoria Pynchon relies heavily on human dynamics in helping parties acknowledge realities they may prefer to avoid...
Conflict Prevention in IP Licensing with Paul Jorgensen
Posted on March 27, 2009DRAFTING AND NEGOTIATING LICENSING AGREEMENTS May 24 - 25, 2009 Dubai Sheraton Creek Hotel Dubai City, UAE Based on his extensive corporate and law firm licensing experience, Paul Jorgensen of The Jorgensen Law Firm PLLC will present this intensive, two day seminar to licensing executives, administrators and lawyers who want more accurate agreements, better license negotiations, and more efficient license programs...
WIPO Mediation: An Idea Whose Time Has Come
Posted on March 24, 2009If you'd like to learn how WIPO mediation cases have been resolved, WIPO has posted mediation case studies of patent, copyright, telecom, biotech, IT, trademark co-existence, pharma licensing, and telecom patent licensing disputes. These brief case studies should be of use to corporate executives, General Counsel, outside counsel, mediators and arbitrators alike...
Step Right Up Little Lady and Get Your IP Primer Right Here!
Posted on March 23, 2009It's free. It really is! Dickstein Shapiro has just released its 2008 Intellectual Property Primer: An Introduction to Intellectual Property for In-house Counsel was prepared by the Firm's Intellectual Property attorneys. The complimentary multi-chapter resource is available for download from Dickstein Shapiro's Web site...
Has the 9th Circuit Really Eviscerated Internet Trademark Laches?
Posted on March 18, 2009See yesterday's opinion Internet Specialties West, Inc. v. Milon-DiGirgio Enterprises, Inc. There's a vigorous dissent from Justice Kleinfeld culminating in this prediction of the majority opinion's affect on trademark law, particularly as it effects internet marks: The majority's evisceration of laches means that a big company can lurk in the tall grass while its little prey gradually fattens itself by dint of great effort and expense...
Laches in the Age of the Internet: Jackie Hutter Replies
Posted on March 18, 2009Thanks to Jackie Hutter of the IP Asset Maximizer for her unique perspective on the Ninth Circuit's recent laches decision "Perhaps I am uniquely qualified to respond to this post," writes Jackie. I wrote the (losing) brief in the case that established laches in Lanham Act in the 11th Cir...
Getting Your Trademark by Satisfying PTO Attorney Interests
Posted on March 16, 2009We talk a lot here at IP ADR about ascertaining and fulfilling party interests to help you settle your patent, trademark, copyright or trade name and trade dress litigation. As Entrepreneurship Magazine recently reported in getting into the mind of your negotiating counterpart, knowing your negotiating partner's desires, aims, goals, needs and fears (its interests) will go a long way to getting you the best deal available...
Would YOU Have Let Bill say: "That All Depends Upon What Your Definition of "Is" "Is"?
Posted on March 08, 2009Take the Art of the Deposition at Solo Practice University!
The British are Coming the British are Coming . . . to Blawg Review #s 202 and 203
Posted on March 06, 2009Nobody does it better (Colin Samuels aside)
Victoria Pynchon Joins ADR Services, Inc.
Posted on March 06, 2009Mediation is all about story, even when everyone thinks it's only about money. Here's the story of ADR Services, Inc., which I joined today, and its dynamic founder and CEO, Lucie Baron. From ADR Services' Website, one of those stories that you must meet the hero of to believe...
What Do IP Clients Want? Rocket Science!
Posted on February 26, 2009Here's the good news fair IP client -- your legal problem is Rocket Science! From Anne Reed's indispensable Deliberations this morning (If it's difficult it must be important) we learn “Perception of high effort arising from subjective difficulty of processing the means makes it appear highly instrumental for goal achievement...
Outline for Today's ABA-ALI Presentation on IP ADR
Posted on February 18, 2009How to choose between litigation and ADR The most successful strategies for guiding your dispute into the best ADR forum at the most productive time. • Case management order • Settlement counsel (inside or outside) • Full time mediator consultant with IP specialty The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations...
Be the Stimulus You Want to See in the World
Posted on February 18, 2009It's ALL ADR because those of us over 50 are already living in our own future. How to keep up? Here's a good place to start - How to Seed Your Own Stimulus from Harvard Business Publishing by Umair Haque, Director of the Havas Media Lab, a new kind of strategic advisor that helps investors, entrepreneurs, and firms experiment with, craft, and drive radical management, business model, and strategic innovation...
Certainty vs. Fairness? Must We Choose?
Posted on February 11, 2009Thanks to @IPStrategist (Jackie Hutter of the IP Asset Maximizer Blog) for calling our attention to Duncan Bucknell's intriguing post at the IP Think Tank, Certainty or fairness - what would you choose? If you had to choose between business certainty and fairness, what would you choose? If the intellectual property laws could be codified so that the result in intellectual property disputes is always certain - even though it might not be fair - would that be ok? Or would you prefer that the legislative guidelines remain broad and the fine details in each circumstance be worked out in context - in litigation? (As happens today?) Link on the title above to continue reading...
Hard Times? Learn How to Negotiate the Best IP Litigation Resolution
Posted on February 10, 2009Live Telephone Seminar ADR in IP Litigation from ALI-ABA Wednesday February 18, 2009 from 1:00-2:00 pm EST Why Attend? In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets...
Negotiation Bargaining Chips: The Value of Goodwil
Posted on February 09, 2009The more goods and services you have to "trade" to negotiate a deal, the more likely you will achieve the most optimal settlement possible. Remember, litigation is simply a business negotiation being conducted in the courts (Google's Eric Schmidt)...
Because its more cost efficient to play nice . . . .
Posted on February 07, 2009Softening Up Opposing Counsel in the midst of the recession from the brilliant Charles Fincher (who kindly permits me to post his work so long as I link and attribute. Thanks Charles! You're a model of 21st Century collaborative and reciprocal IP sharing!) For more laugh out loud funny lawyer cartoons, go immediately to LawComix...
"Patent Troll" Study at Stanford to Get Underway
Posted on February 05, 2009From the Wall Street Journal's Market Watch, Famed patent firm backs study on touchy subject; Myhrvold, Lemley's study aim for academic neutrality, but some are skeptical By John Letzing, MarketWatch SAN FRANCISCO (MarketWatch) -- Nathan Myhrvold, a former high-ranking Microsoft Corp...
Settling IP Litigation with Cross-Licenses
Posted on February 03, 2009Because this is how most intellectual property disputes will end, the only question is: how much mutual warfare do the parties actually need to endure before they're ready to come to the peace summit. Though the collateral damage of litigation does not cause actual bodily injury, the corporate "body" and its members will suffer in lost productivity, translating into fewer revenues, causing lower profits...
IP Legal Services Going the Way of the Buggy Whip?
Posted on February 02, 2009I found the IP Strategist on Twitter, justification alone for the time I spend there getting to know people inside and out of my market whose experience, wisdom, education and training expand my understanding of my clients' concerns on a daily basis. (post card from Hugh McLeod's Gaping Void post on Buggy Whip thinking) I talked to IP attorney Jackie Hutter this morning, author of the IP Asset Maximizer Blog and found that we shared a passion for focusing on business solutions to commercial problems rather than adversarial answers to justice issues...
A Year of Living Frugally with the Texas Lawyer
Posted on January 30, 2009Thanks to the National Arbitration Forum Blog for this reminder about IP ADR: Involved in an Intellectual Property Tiff? Consider ADR In their article Keep a Lid on Costs in IP Disputes (Texas Lawyer, 1/26/2009), Ted D. Lee and Miguel Villarreal Jr...
Two Hours to Download Newspaper to Computer? Let Us Take You Back to 1981
Posted on January 30, 2009Thanks to @StephanieDube for circulating this timeless piece of computer history, making 1981 (my second year of legal practice) look more like 1948. The best thing about receiving the San Francisco Examiner on computer says one satisfied user, is being able to COPY IT!! Courtesy of Faith & Geekery.
Your Jury Doesn't Care About Patent Infringement if the Defendant Didn't Copy It
Posted on January 27, 2009I'll never forget watching an ABTL mock trial with two juries equipped with focus group dials. The mock trial concerned an allegation of copyright infringement and the two juries were comprised of the people likely to be hearing the evidence (regular people) and the people likely to be presenting it (lawyers)...
Failure is the Key to Success
Posted on January 26, 2009Thanks to Rex Hammock's RexBlog for calling our attention to this fabulous Honda commercial on failure. Favorite quotes: Indy car driver: You're constantly on the brink of crashing, because that's the fastest. Edison: I never failed...
Random IP Media Historical Note
Posted on January 23, 2009From Wikipedia: The theme music [to the Lone Ranger] was the "cavalry charge" finale of Gioacchino Rossini's William Tell Overture, now inseparably associated with the series, which also featured many other classical selections as incidental music including Wagner, Mendelssohn, Liszt, and Tchaikovsky...
Whether Litigating or Negotiating, Persuasive Skills Paramount
Posted on January 22, 2009From Six Ways to Get People to Say "Yes" at Copyblogger 6 Powerful Compliance Triggers Here are six common compliance triggers identified by psychologists along with my suggestions for applying them to copywriting: Reciprocation — There is an overwhelming urge to repay debts, to do something in return when something is done for us...
The Unbearable Density of the RIAA on the Change-iest Day of the Year
Posted on January 20, 2009From Wired: The Recording Industry Association of America is objecting to the webcasting of pretrial arguments in an upcoming file-sharing trial. The RIAA claims that the re-runs "will be readily subject to editing and manipulation by any reasonably tech-savvy individual...
International Institute for Conflict Prevention & Resolution Gives Writing Awards
Posted on January 19, 2009Mediator blah blah receives Honorable Mention!! Congratulations to New Zealand's master mediation blogger Geoff Sharp! NEW YORK, NY, January 16, 2009 – The International Institute for Conflict Prevention & Resolution (CPR Institute), a membership-based, nonprofit alliance of global corporations, law firms, scholars, and public institutions dedicated to the principles of commercial conflict prevention and alternative dispute resolution, announced the winners of the 26th Annual CPR Awards Program at a dinner held at New York’s Barclay InterContinental on January 15...
Thinking Outside the Box to Deliver Greater Client Satisfaction During Hard Economic Times
Posted on January 13, 2009Live Telephone Seminar ADR in IP Litigation from ALI-ABA Wednesday February 18, 2009 from 1:00-2:00 pm EST Why Attend? In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets...
Blawg Review #194 Celebrates Innovation at Build a Solo Practice
Posted on January 12, 2009This week, Susan Cartier Liebel (@SusanCartierLiebel) she of Build a Solo Practice and Solo Practice University, hosts Blawg Review #194 on our favorite theme: innovation, using the Phoenix as her inspiration. As Susan explains: The Phoenix represents to many the life cycle: birth, growth, death and re-birth because from the ashes life arises anew often strengthened through reinvention...
ReMix: Larry Lessig Subjects Himself to Stephen Colbert
Posted on January 10, 2009Larry Lessig on The Colbert Report Deeplink by Tim Jones from Electronic Frontier Foundation. Last night, Larry Lessig, a close ally and former board member of EFF, chatted with Stephen Colbert about Lessig's new book Remix, and how America's broken copyright laws are criminalizing our kids: Colbert: Isn't that like saying that arson laws are turning our kids into pyromaniacs?? They're breaking the law! You can't just throw the law out the window! Lessig: "Totally failed war...
Make Yourself a Lean Mean Patent Litigation Machine
Posted on January 09, 2009Check out Chicago IP Litigation this morning on patent litigation wisdom from the bench. Chief Judge Michel: The State of Patent Law by R. David Donoghue Making good on his promise to turn his IP Colloquium into National Public Radio for IP law, Doug Lichtman's newest offering is an extended interview with Federal Circuit Chief Judge Michel...
Blawg Review # 193 Takes IP Where It's Never Been Before: Into the Heart of Darkness
Posted on January 05, 2009Being a British Barrister Blogger, Charon QC, the Host of Blawg Review #193 is nothing if not Bold, Bawdy, Brazen, and Bodacious without being at all Blustery or Bullying. For my IP ADR Readers, I'll highlight the IP Deadly Sins which IP disputes might fit comfortably inside -- including luxuria (extravagance, later lust), gula (gluttony), avaritia (greed), acedia (sloth), ira (wrath), invidia (envy), and superbia (pride)...
Mediator Prospective Liability Waivers and Mediator Malpractice
Posted on December 30, 2008Yesterday I posted excerpts from a Los Angeles Daily Journal article about the ethics (and enforceability) of a mediator-client agreement in which the client waives any right he or she might have to pursue the mediator for malpractice. Before moving into those waters here, let's brainstorm a little about how mediators might fall "below the standard of care" in a profession that so many claim has no standard of care...
The Daily Journal on Mediator Waivers of Prospective Potential Liability
Posted on December 29, 2008(CPR, right. Are mediators like fireman as Straus Institute's Peter Robinson suggests?) Excellent article on mediator liability waivers in a recent Los Angeles Daily Journal Article (excerpted below). I have much to say about this topic, particularly as to mediators who hold themselves out as possessing expertise in niche areas, such as the resolution of intellectual property disputes...
"Happy Lawyers" is Not an Oxymoron
Posted on December 26, 2008From today's Los Angeles Daily Journal FORUM COLUMN For Lawyers, the Pursuit of Happiness Involves a Return to the Basics By Victoria Pynchon "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness...
For Everything Else There's AMEXMasterCard Card
Posted on December 17, 2008pimg width="107" vspace="5" hspace="5" height="70" border="5" align="left" alt="" src="http://www.ipadrblog.com/uploads/image/MC_logo.jpg" /From a href="http://www.likelihoodofconfusion.com/?p=1742"Likelihood of Confusion/a -- a emmust read /emabout the foolish-ness-esses of applying too much knee-jerk law to the business of business...
Scrabulous by Any Other Name is Baaaaccccckkkkkkkkk
Posted on December 15, 2008Thanks to @dhowell (she of Bag and Baggage) for alerting us to BetaNews' breaking news that Hasbro has settled with the Scrabulous brothers. Here's the news release: "Pursuant to the settlement, RJ Softwares has agreed not to use the term Scrabulous and has made changes to the Lexulous and Wordscraper games (in the US and Canada) to distinguish them from the Scrabble crossword game...
Blawg Review #190 Celebrates Bill of Rights Day as the RIAA Seeks to Designate Litigant "Vexatious" for Seeking a Jury Trial
Posted on December 15, 2008Run right over to the Legal Satyricon for as much Bill of Rights savagery as you might have been waiting eight years for as Blawg Review #190 Celebrates Bill of Rights Day. Our favorite here at the IP ADR Blog is the Seventh Amendment. SEVENTH AMENDMENT In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law...
IP ADR Blogger Jay McCauley Joins Kichaven, Rothman in High-End ADR Boutique
Posted on December 13, 2008By Greg Katz Daily Journal Staff Writer LOS ANGELES - The crowded Los Angeles mediation market is about to get a new competitor. Professional Mediation will open its doors in January. It is the brainchild of Cary Sarnoff, president of Sarnoff Information Technologies, whose main enterprise is Sarnoff Court Reporters...
IP ADR Blogger John Leo Wagner Makes DJ's Top 40 Neutrals List
Posted on December 13, 2008We're proud to announce that our friend and colleague, Judicate West hearing officer (mediator and arbitrator) John Leo Wagner, Federal Magistrate (ret.) has been named one of 40 Top California Neutrals by the Los Angeles Daily Journal Daily Journal Bio from the Top 40 List Below Affiliation: Judicate West Rate: $6,600 a day Location: Los Angeles Specialty: Mediation and arbitration...
Business Solutions to Commercial IP Problems or Legal Solutions to Business Problems? Why Not Both?
Posted on December 10, 2008I recently advised a client that his IP dispute with a virtual world was just the type of cutting edge, paradigm busting, sophisticated legal problem that people go to law school to resolve. Good for litigators. Bad for client. I'll return with business advice for resolving legal problems with business savvy but pause here to share with you Drinker Biddle's recent parade of horribles on IP challenges facing virtual worlds and their entrepreneurs...
Blawg Review #189 at Infamy or Praise Delivers the Goods
Posted on December 08, 2008Remember those days - largely before you went to law school - when you believed all lawyers with whom you were going to practice would evidence the benefits of a classical education? I believed. As did two ex-husbands until they first attended law firm holiday parties...
Settle Your Next IP Case with a Mind Map
Posted on December 06, 2008Check out the ever-exhaustive Settlement Perspectives blog this week for a walk down the organized aisle of mind-mapping for your mediator. As in-house counsel John DeGroote explains: A sample Mediation Mind Map, available in .pdf format here...
Estimating the Settlement Value of Your IP Case
Posted on December 05, 2008Thanks to Robert Holland at Sidley Austin Los Angeles for giving us a few more issues to consider when estimating the settlement value of any case. THE PRACTICAL IMPACT OF CALIFORNIA’S EQUITY-FIRST RULE ON SETTLEMENT VALUE AND CHOICE OF LITIGATION FORUM by Robert Holland Sidley Austin, LLP with thanks to JD Supra here and in my twitter network @Legal_Alerts The California Court of Appeal’s recent decision in Hoopes v...
Fast Track Arbitration for Small IP Disputes through the AAA
Posted on November 25, 2008Beginning today, I'll be available to handle Expedited Commercial Cases for the American Arbitration Association. As the AAA explains: AAA offers fast, convenient online claim filing through our AAA WebFile service. In addition to filing claims, clients can make payments, perform online case management, access rules and procedures, electronically transfer documents, select Neutrals, use a case-customized message board and check the status of their case...
Thanksgiving Week Gratitude Opportunities
Posted on November 24, 2008From the Smart Woman Guide Blog, one of the best ways to feel grateful this holiday season and to express our recognition of our many blessings. (pictured, Sheila Ansah Adjei looking for a Kiva micro-loan) Together We Are Stronger: The Value of Cooperation in Business Cooperation is a SmartWoman Principle...
Creating Healthy IP Culture Best Dispute Prevention Strategy
Posted on November 20, 2008An ounce of prevention . . . . with thanks to Patent Baristas for the following: Book Review Monday: Intellectual Property Culture cul·ture (n.) the set of shared attitudes, values, goals, and practices that characterizes an institution or organization (Merriam-Webster’s Dictionary Online)...
And if You're Not YET Sure the RIAA Has It's Head Up its . . .
Posted on November 19, 2008Jaw dropping from Techdirt: RIAA Agrees To Settlement, Then Asks For Twice As Much from the anything-they-can-get-away-with dept Ray Beckermann is, once again, highlighting some highly questionable activities by the RIAA, noting that after getting defendants to agree to a settlement amount, the RIAA sometimes immediately asks for double the agreed upon amount, and submits that proposal to the court...
Yes, Virginia, Santa Claus is Solo Practice University?
Posted on November 13, 2008It's official! I've joined the faculty of Solo Practice University™ Huh? I don't see that University in any tier of the U.S. News and World Report's Law School Rankings! And if it's not ranked for goodness sakes, does it even exist? Yes, Virginia, a school for legal practitioners does exist "as certainly as love and generosity and devotion exist, and you know that they abound and give to your life its highest beauty and joy...
IP Settlement Strategy and Tactics Presentation
Posted on November 11, 2008Over at BrightTalk.com here! A 45-minute narrated power point presentation about using the litigation as an opportunity to make a business deal.
Head's Up RIAA: Engage These Kids Passions: Don't Sue Your Market for Heaven's Sake
Posted on November 11, 2008Since you've clearly already taken your brains out of your heads, make a strategic marketing decision that doesn't put them up your #$@%. Engage young people's loyalty; their capacity for innovation; their motivation to do the right thing if paired up with the right innovative partner...
Heddy Lamar and Inventor's Day at IP Think Tank Blawg Review No. 185
Posted on November 10, 2008Heddy Lamar invented wireless tech? Well . . . . it's not quite what happened, but not too far from the truth according to Duncan Bucknell's IP Think Tank Blawg Review #185. If that doesn't send my Hollywood lawyer friends over to Duncan's pad for a read I don't know what would...
Join BrightTALK for the IP Summit Web Cast on November 11, 2008
Posted on November 09, 2008TIMES ARE ALL PACIFIC STANDARD TIME: WEB CASTS ARE ALL FREE Join BrightTALK for the Intellectual Property Summit here! IP litigation in China 1:00 am Presenting Moderator: Peter Ollier, Asia editor, Managing IP Are Google Adwords Trademarks? 7:00 am Presenting Jason M...
Ba-Da-Bing! Virtual Strip Club Protected by First Amendment
Posted on November 06, 2008From our own Hon. Margaret Morrow (head of the U.S. District Court's Settlement Officer Panel here) a reasoned and lively opinion on the intersection between life and video games here - E.S.S. ENTERTAINMENT 2000, INC. v. ROCK STAR VIDEOS, INC...
"Return Phone Calls Within 24 Hours, Use Spell Check, Don't Ever Hit 'Reply All'" Not Patentable
Posted on October 30, 2008I'm not certain whether all of my IP ADR colleagues think business method patents are . . . well . . . ridiculous like I do, not to mention yet another way to stifle innovation, ingenuity and the collaborative commercial spirit that made our economy great, but they'll have to weigh in now if they don't agree that this is very good news American business ...
Justice Thrives in a Healthy Democracy: California Voting Information Here
Posted on October 29, 2008Over at the Settle It Now Negotiation Blog, I've asked legal bloggers in every State to post a page devoted to helping voters exercise their right to participate in re-creating the government by consent that a democracy guarantees us. Because I'm in Nevada, I posted Nevada voting information on the negotiation blog...
Collaborative Law and Intellectual Property Cases
Posted on October 28, 2008Guest Blog Post by Tamera H. Bennett Thank you to Victoria Pynchon for allowing me to be a guest blogger. In preparing to write the post I had several topics going through my mind, but I thought it would be interesting to pitch this topic out to the fantastic readers of this blog for some feedback...
Collaboration Agreements for Creatives
Posted on October 27, 2008Turns out the term "Hollywood Contract" is not an oxymoron after all. Not if you follow the three-part series Why Every Writing Team Should Have a Written Collaboration Agreement over at Theater and Entertainment Law. And don't think you don't need one of these if you are part of a young writing team just starting in business with a friend...
Survive in Tough Times? Don't Plate that Patent in Gold
Posted on October 17, 2008A truly excellent post over at IP Asset Maximizer Blog on reducing legal expenses while still protecting your inventions. To give you a taste before you speed on over there, blogger and self-described "Intellectual Property and Patent Business Strategist and 'Recovering Patent Lawyer'" Jackie Hutter suggests that the "disciplined" entrepreneur will obtain[] patent rights that are adequate, but are not so broad as to fully protect the upside opportunity associated with the innovation...
Reward or Punish? Nice IP Litigators Finish First
Posted on October 17, 2008Apparently I was in a coma in March of this year when "the press went crazy for Martin A. Nowak’s study on the value of punishment." As Scientific American recently reminded us A Harvard University mathematician and biologist, Nowak had signed up some 100 students to play a computer game in which they used dimes to punish and reward one another...
Copyright Czar Lawrence Lessig?
Posted on October 14, 2008Which Presidential administration do you think might be smart enough to do that? Go to Wired to Vote: Who Should Be the First U.S. Copyright Czar, then vote for the team with sufficient wisdom to appoint the right person. Excerpt from Wired post below; full post at link above: On Monday, Bush signed the "Enforcement of Intellectual Property Rights Act" creating the new position — an official on equal footing with the U...
Changing Copyright Law for the Better with Larry Lessig
Posted on October 13, 2008Can a law professor be a lawyer's hero? I have just two words for you: Larry Lessig. See Peter Black's Freedom to Differ post today on Lessig's WSJ editorial on changing copyright law for the better and for the good. Just one of several suggestions below...
Musicians Outside the (i)Pod from IP KAT
Posted on October 12, 2008See what IPKAT's talking about when it notes its fascination with the music industry's efforts to "develop new business models" in its post on the formation of the Featured Artists Coalition. IPKAT comment below. What excites the KAT at the link above...
Following Radiohead Good Mag Offers "Pay What You Want"
Posted on October 12, 2008... and agrees to donate it to the charity of your choice. It's GOOD! h/t Freakonomics here. Sharing Paris iPhone photos - this at Le Cimetière du Père-Lachaise
Sedona Discovery Cooperation Proclamation
Posted on October 07, 2008Thanks to the recent Twitter entry of R. David Donoghue -- "follow" him here -- of the Chicago IP Litigation Blog, we here at the IP ADR Blog can bring you the Sedona Discovery Cooperation Proclamation. Since I'm in Paris and David promises to post a piece on this in his blog tomorrow, I'll leave the commentary to him...
The 21st Century: It's All About Collaboration: Pick Up the Lawyers' Guide Today
Posted on October 04, 2008The Lawyers' Guide to Collaboration Tools and Technologies Say goodby to quill pens and obstreperous adversarial posturing. Join authors Dennis Kennedy and Tom Mighell in learning "Smart Ways to Work Together" in their Lawyer's Guide to Collaboration Tools and Technologies...
Blawg Review #179 Celebrates the Invention of the Ballpoint Pen
Posted on September 29, 2008I remember the first time I laid my hands on a BIC pen. I was in junior high school and the kids down the street seemed to have stumbled over a treasure trove of them. They were . . . well . . . simply beautiful . . . as was the way they glided across the Windex-blue lined paper populating my denim-covered school binder...
It's Time for a LegalTED When IBM Wants a Patent on No Patents
Posted on September 29, 2008Why LegalTED? Because we're using 18th Century dispute resolution technology to solve 21st Century conflicts. Because we're all scratching our heads over items like the one below from SlashDot -- IBM Wants a Patent on Finding Areas Lacking Patents posting them, and then going on with our business days as if there weren't anything we could do about it -- waiting for Congress, for instance, to solve a problem that rests in our own hands...
Blawg Review # 179 Secures Innovation Tomorrow Morning
Posted on September 28, 2008Great way to start your IP week -- check out Blawg Review #179 at Securing Innovation tomorrow morning. Preview here. Looking forward to it!
As Bratz/Mattel Mediator Speaks, Mike Young Wonders If It's Too Much
Posted on September 25, 2008In Friday's Daily Journal, mediator and former U.S. ambassador Pierre-Richard Prosper talks about his efforts to help the Bratz/Mattel parties settle their long-running patent infringement lawsuit. Mediator Mike Young wonders about mediation confidentiality as both Prosper and counsel talk about the potential to settle the case and the way in which trial proceedings have impeded resolution...
Preparing for an IP Mediation: Flow Charts, Check Lists and Mind Maps
Posted on September 23, 2008(mind map from Knowledge Aforethought) Check out the brilliant copyright flow charts and checklists which the The Corner of Lex and Biz has thoughtfully aggregated for the rest of us here. When I prepare for an IP mediation, I take the parties' briefs and make flow charts, mind maps and checklists from them...
Blawg Review # 178 Rocks the IP World from Down Under
Posted on September 22, 2008Run, don't walk to what may well be the Best BlawgReview of the Year at Freedom to Differ with these tasty IP and technology morsels. Law, blogs and technology At one of my favourite blawgs, The UTube Blog, Edward Lee blogged that NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast? At PrawfsBlawg Marc Blitz pondered the privacy implications of a video game that you control with your mind...
Law in Motion: Legal Documentary Journalism at its Best
Posted on September 20, 2008When I celebrate the fact that the means of production are now in the hands of the people, I'm not talking about the ten-fingers of your 13-year-old daughter (great as her uploaded videos of the family cat might be). If you're longing for quality documentary content on the internet, check out the KobreGuide, which has a LAW CHANNEL channel here...
California Supremes Open Door Closed by U.S. Supremes
Posted on September 04, 2008by Jay McCauley Every time I ask attorneys to identify the single worst drawback of arbitration, their overwhelming answer is “no appeal." With Arbitration comes the nightmare of losing for no good reason with no possible fix...
If You Can't Copy the Law, There's Something Really Wrong Here
Posted on September 03, 2008From the No Comment Department: (h/t Slashdot) California claims copyright to its laws, and warns people not to share them. And that's not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc...
California Supremes Open Door Closed by U.S. Supremes
Posted on September 02, 2008by Jay McCauley Every time I ask attorneys to identify the single worst drawback of arbitration, their overwhelming answer is “no appeal." With Arbitration comes the nightmare of losing for no good reason with no possible fix...
What to Do When the FBI Arrives at Your Door
Posted on August 29, 2008In light of the FBI's arrest of local blogger and alleged illegal streamer of copyrighted Guns and Roses music, Kevin Cogill, I thought it would be useful to the blogging community to direct it to tips on dealing with the FBI below: If an Agent Knocks: Federal Investigators and Your Rights from the Center for Constitutional Rights...
FBI Plays Starring Role as IP Bully by Arresting Blogger
Posted on August 29, 2008Blogger arrested, accused of posting 9 unreleased Guns N' Roses songs Those of you old enough to remember Woodstock in "real time" or to have attended yourself, you'll no doubt recall the magic moment when the concert producers decided to tear down the fences and make the concert free...
Patent Reform at the DNC and Dovetailing Differences to Settle Patent Infringement Litigation
Posted on August 28, 2008Thanks, first, to Google Reader for offering me feeds to blogs it knows I'd like but don't have (like Peter Zura's 271 Patent Blog) and then making it easy for me to add them to my Reader, which I can now read on my iPhone thanks to Apple. Really...
Los Angeles Judges and Attorneys!! Engage Local High School Students in Conversation about the Tensions Between Liberty and Security to Commemorate 9/11
Posted on August 26, 2008Dialogues on Freedom - Volunteers needed! Commenorate 9/11 by engaging high students in a discussion about the tensions between liberty and security in the wake of the attacks on the World Trade Center. These kids -- 15 through 18 -- were 8 to 11 years old a the time of the attacks...
Linked In Answers to Question: Who Benefits from Inefficiencies of Patent Litigation?
Posted on August 24, 2008I recently posed the following question to the IP ADR Blog's readers and to my LinkedIn network: Which patent infringement litigation parties (if any) benefit from the inefficiencies in the process? As usual, my LinkedIn Network delivers...
And You Thought You Were Engaged in Protracted Litigation
Posted on August 24, 2008Lowering the Bar citing California Punitive Damages provides this comment in response to the return of Exxon to the Ninth Circuit after two decades of litigation. In this artist's conception, the last two human attorneys finally realize they are still on Earth, that the Exxon case has still not been fully resolved, and that they will have to ask for yet another continuance because they aren't dressed for court...
Malpractice Alert: Is it a Settlement Conference or a Mediation?
Posted on August 21, 2008Here in California, there's no stronger rule of confidentiality than that applied to a mediation. It cannot be impliedly waived (Simmons v. Ghaderi) like most privileges, including the near-sacred attorney-client privilege. You cannot be estopped from relying upon it...
Blawg Review #173 at Chicago IP Litigation is Swimming
Posted on August 19, 2008Another Monday, another collection of great law blog posts courtesy of the Blawg Review. This week, Blawg Review # 173 has been put into the capable hands of DLA Piper IP litigator David Donoghue over at the Chicago IP Litigation Blog...
Larry Lessig on Congressional Reform, Internet Policy and the Upcoming Election
Posted on August 19, 2008This is a brief interview with Lawrence Lessig at this year's Personal Democracy Forum in New York City. Lessig answers questions about Change-Congress.org: an online, participatory tagging tool to encourage reform and transparency in the US Congress...
Cease and Desist at Pooh Corner
Posted on August 19, 2008This lawsuit falls into the category of deterrence. Because I live in a part of the world where "creatives" regularly refer to Disney as Maushwitz, I don't tend to think of it as the happiest place on earth. The question here, however, is business strategy and tactics; public image vs...
Do Patent Infringement Litigants WANT an Inefficient Dispute Resolution Process?
Posted on August 18, 2008Now that my step-son is no longer my legal assistant (sniff) but an IP litigator with one of the best IP firms in the country (Irell & Manella) he's a source!! Yesterday I asked him this question: which patent infringement litigants benefit from the inefficiencies of the patent litigation process -- particularly those who are involved in protracted litigation like those lawsuits recently settled by Nokia and Qualcomm...
As We Were JUST saying . . . . last YEAR, Innovate, I mean ADVERTISE
Posted on August 16, 2008I've lived long enough to remember the Empire of the American Car Industry, 25 cent a gallon gas and 35 cent packs of cigarettes (I should have quit when prices reached the half dollar mark). In the mid-80's Pulitzer Prize winner David Halberstam wrote a scorching indictment of the way the Detroit Auto Giants all but handed over the keys to their market dominance to the Japanese for whom the battle of Detroit and Toykyo looked more like taking candy from the hands of oblivious monster-car babies...
An Olympic Moment: Negotiating IP Licenses and Disputes with Chinese Nationals
Posted on August 15, 2008Item: China, one of the world's largest and most promising markets, has seen a 20 percent annual increase in patent application filings over the last fifteen years. Item: In 2007, the State Intellectual Property Office (SIPO) of China received 694,153 patent applications, an increase of 21...
Involved in Contentious IP Litigation? Check Out This Cluster #$%@#
Posted on August 14, 2008Though the headline -- Cybersex Patent Case Leads to Bad Vibes Between Firm, Client -- may draw you in, it's the hyper-compounded conflicts of this litigation that will make your eyes roll. You don't even need to understand who's who or what's what to get a good taste of the procedural nightmare playing out here: Calling the heated struggle with Piccionelli a conflict of interest that threatened the firm's loyalty to Internet Services, Keker filed a motion to withdraw from the case, saying it could no longer represent Internet Services under State Bar Rule 3-700(b), which addresses mandatory withdrawal...
IP Litigator Rule-of-Law-Heroes from Perkins Coie
Posted on August 13, 2008I try not to stray into political waters, but the rule of law is what we honor here even when we're trying to settle cases instead of trying them. So we're directing you to a Seattle Times article -- Personal test of principles -- about Perkins Coie IP attorneys Joe McMillan's and Harry Schneider's representation of the first alleged terrorist tried by American authorities...
This is Where the Patent Litigation Ends: Cross-Licenses & Share Prices Up
Posted on August 13, 2008So how about reverse engineering the litigation? What steps were actually necessary to achieve the settlement? Was it something more than just wearing one another out? Were early summary judgment or adjudication motions needed before the situation could be clearly sized up? Were the legal issues or the business issues more prominent? Where were the carrots and where were the sticks? This lawsuit was filed five years ago...
Settle Your IP Dispute in a Hot Tub
Posted on August 12, 2008Get ready for a radical new idea. One that: suggests the search for accuracy should trump a fully adversarial process; would wrest some control of the litigation and trial process from the hands of the attorneys; and into the care of the experts; and, just might focus IP litigants on the fact that they have a business problem burdened with justice issues rather than a legal problem that frustrates business operations...
Blawg Review #172 is Up at the Ohio Employers Law Blog
Posted on August 10, 2008Mr. Thrifty is not a summer Olympics fan, though I am, but neither of us is much impressed by half-time shows (even when they include Janet Jackson's bared breast). We were, however, quite genuinely and completely blown away by the Opening Ceremonies in Beijing...
Are Too Many Patents as Bad for the Economy as Too Few?
Posted on August 07, 2008In his recent New Yorker article, The Permission Problem, financial reporter James Surowiecki reviews Columbia law professor Michael Heller's new book, “The Gridlock Economy.” TGE decries the development of an "anti-commons" in a business climate possessed by the demon of possession...
Blawg Review #171
Posted on August 04, 2008If intellectual property had a theme song it would have to be "Like a Virgin." Why? Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings...
The Blessed Virgin IP ADR Blawg Review No. 171
Posted on August 03, 2008If intellectual property had a theme song it would have to be "Like a Virgin." Why? Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings...
Fabulous Scrabulous, Word Scraper and the Wages of Litigation
Posted on August 01, 2008Mr. Thrifty and I tried Scrabulous for the first time this week because we assumed it would be our last chance. Last night, we were playing Word Scraper (first game above). We haven't figured out the rules but we think we like it...
Patent Mediation in the Federal Circuit
Posted on July 30, 2008See Patent Mediation on Your Horizon? by Kevin R. Casey at Stradley Ronon Stevens & Young, LLP, over at Metropolitan Corporate Counsel. Here's an excerpt to wet your appetitie.In efforts to enhance the success that the mediation program of the Federal Circuit has already enjoyed in its short existence, Chief Circuit Mediator Amend identified at the Conference eight impediments to settlement of patent cases on appeal...
Next Stop . . . Blaaaawwwwgggggggg Review No. 171
Posted on July 28, 2008The IP ADR Blog will be hosting the Blawg Review this coming Monday. If you've never participated in a Blawg Review before, check out the guidelines for submission here.Though we've been reading Blawg Review since we put up our first tentative post on blogger (here!) in June of 2006, as hosts, we're Blawg Review virgins...
Wise Up at Simple Justice's Blog Review No. 170
Posted on July 28, 2008Because the introduction of the movie Magnolia narrates the best criminal law bar exam question in the history of film, period, I posted it for you over at the Settle It Now Negotiation Law Blog here. Below, the haunting last scene of that dark comedy -- Aimee Mann's Wise Up -- below...
Juror Bias Could Sink Mattel/Bratz Verdict
Posted on July 27, 2008Thanks to the Wall Street Journal Law Blog for posting this Order in the Bratz/Mattel Litigation (Barbie-Bratz Juror Booted for Ethnic Slurs). Juror No. 8 made grossly inappropriate remarks concerning defendant Isaac Larian based on his ethnicity during jury deliberations...
Timing, Bad Vibes, Uneasy Feelings Can Kill a Deal
Posted on July 25, 2008(above: a conspiracy theory caught in the act)From today's Wall Street Journal Market Watch We Learn that Microsoft says 'weird' Yahoo response killed deal Microsoft Corp. executives told Wall Street analysts Thursday that the company ultimately failed to reach a merger agreement with Yahoo Inc...
That's Not the Sound of One Hand Clapping . . . .
Posted on July 25, 2008. . . it's the smell of rubber hitting the road.(right: the scientific representation of rubber hitting the road -- I thought our attorney-engineer readers would appreciate this one -- image from the University of Hamburg)I have a confession to make...
Settling "Bet the Company Cases" -- Qualcomm's Stock Price Soars
Posted on July 25, 2008(photo: from Mediation from Darkness to Light)In the Qualcomm-Nokia battle of the giants, settlement took a dedicated negotiation team, trial counsel who believed the case would not settle, and a string of pre-trial motion victories. Trial counsel is so immersed in pursuing victory -- as well he should be -- that he calls the settlement a "multi-billion dollar award...
Nokia and Qualcomm Settle On Courthouse Steps
Posted on July 24, 2008From the Los Angeles Daily Journal: Qualcomm, Nokia Settle Licensing Dispute By Craig Anderson Daily Journal Staff Writer San Diego-based Qualcomm Inc. will get a big payout from Nokia Corp. to settle a long-running dispute over how much money it should receive to allow the Finland-based cell phone maker to license its patents...
The Wages of Bad Faith Patent Litigation -- The Lawyers are Liable
Posted on July 23, 2008Some cases just need to be tried. See Law Firms Held Liable for Fees in 'Tissue of Lies' Patent Suit at Law.com. Excerpt below:A federal judge has ordered a patent holder and his lawyers to pay attorney fees for bringing an infringement suit based on "nothing more than a tissue of lies...
Working for Justice in the Mediation Zone
Posted on July 22, 2008(The World of Injustice -- the Earth and the Moon as seen from Mars)MEDIATION 'MAGIC' HAPPENS WHEN NEUTRALS REVITALIZE JUSTICE ISSUES FORUM COLUMN By Victoria Pynchon There comes a point in every mediation when the attorneys need help in understanding their clients and the clients need to be reminded of the limitations the legal process imposes on everyone's efforts to resolve the conflict at hand...
Qualcomm v. Nokia: Let the Games Begin
Posted on July 22, 2008(image from Engadget Mobile post Qualcomm suit kindly asks Nokia to halt U.S. GSM sales)From the American Lawyer Daily:Nokia and Qualcomm To Start Trial Wednesday The rivalry between Nokia and Qualcomm is the IP-geek equivalent of Yankees versus Red Sox or Lakers v...
One Man's Piracy is Another's Business Opportunity
Posted on July 21, 2008We LOVE the law here at the IP ADR Blog. And we're huge supporters of the Rule of Law as society's Great Leveller. We're not, however, all that enamoured of lawsuits as a means to create business opportunity or to stem business losses...
BARBIE AND BRATZ -- SISTERS AT LAST?
Posted on July 18, 2008MATTEL WINS FIRST PHASE OF TRIAL, BUT SO WHAT?[Great photo from the Telegraph.co.uk's January 2007 article Spoilt Bratz.]The federal jury in the Dueling Dollies copyright war has returned a major victory today for Mattel -- a unanimous verdict -- finding that Bratz designer Carter Bryant (who wisely settled out early) came up with his initial drawings and prototypes for the Bratz doll while he was an employee of Mattel...
Using Social Psychology to Win Your Next IP Negotiation
Posted on July 15, 2008Using Social Psychology to "Win" Your Next Negotiation - Get more Business Plans
Negotiating by Email? Think Again!
Posted on July 15, 2008The Perils of Using Email in Litigation - Get more Legal FormsEnlarge by clicking on upper right hand arrow.
What's Risk Got to Do with It?
Posted on July 14, 2008Considering a settlement? Conducting a risk analysis? Pay attention to those cognitive biases.From Psychology today -- 10 Ways We Get the Odds Wrong Our brains are terrible at assessing modern risks. Here's how to think straight about dangers in your midst...
AP, Drudge Retort Resolve Copyright Dispute as AP Continues Dialogue with Bloggers
Posted on July 11, 2008Sometimes lawsuits, demand letters and take down notices have a larger purpose than simply making a claim against a single individual. Whether or not AP intended to engage the entire blogging community in a public conversation about fair use of copyrighted news content content, engage them it did...
IP Risk Management: Protection, Protection, Protection
Posted on July 10, 2008When I was practicing, I'd tell my clients that litigators and trial lawyers were the profession's surgeons. We were the people they wanted to avoid because surgery is costly and potentially life-threatening. Transactional lawyers, I stressed, were the Internists of the profession and they should be consulted early and often...
1.52 Billion Reasons to Settle that Patent Infringement Suit
Posted on July 09, 2008From the AmLaw Daily, we learn that Kirkland & Ellis on the Sidelines as Alcatel-Lucent Seeks To Reinstate $1.52 Billion Verdict Last year Kirkland & Ellis IP partner John Desmarais won some serious bragging rights when a California jury awarded his client Alcatel-Lucent $1...
The Best ADR is Prevention and Harvard's Educational Fair Use Project is a Good Start
Posted on July 08, 2008Thanks to LexMonitor for sending us to Rebecca Tushnet's 43(B)log alerting us to Harvard's Right To Teach: an Educational Fair Use Project. We've often said that the best alternative to litigation is prevention -- here the attempt to create a "Statement of Best Practices" that willhelp draw to the surface and articulate a consensus in the academic community about the scope and limitations of user rights in a contemporary culture that is, on the one hand, increasingly participatory and technologically innovative and, on the other hand, increasingly marked by the expansion and tightening of traditional copyright...
IP Soap Opera: Time to Tune Up Your Harassment Policies
Posted on July 08, 2008Thanks to the Amlaw Daily (courtesy of writer Nate Raymond) for bringing us this shocking news -- Kasowitz Benson: Former IP Head Harassed 12 WomenThe former head of intellectual property at Kasowitz, Benson, Torres & Friedman sexually harassed at least 12 female employees at the firm--including making advances on seven of them in one night--before he was fired in December, according to a lawsuit filed Monday by the firm...
Negotiating Planning
Posted on June 30, 2008There's a lot of meat to put on these bones but this set of suggestions for pre-negotiation preparation is a good start. It's applicability to IP negotiations next.PRE-NEGOTIATION TIPS – MEMORY JOGGERS 2 (summary) document each party’s goals, attitudes, limitations and the known or likely opening stance of each side… develop a negotiation strategy by Listing possible solutions for your negotiating partner Listing likely repercussions for both parties defining possible areas of agreement brainstorming underlying mutual needs or common ground...
Why Use an Expert IP Mediator? Let the Harvard Negotiation Law Review Tell You How
Posted on June 30, 2008EXPERIENCED INTELLECTUAL PROPERTY MEDIATORS: INCREASINGLY ATTRACTIVE IN TIMES OF PATENT UNPREDICTABILITY Winter 2008 (Westlaw Link Here)Thanks to Ms. Tran for citing to the IP ADR Blog's Interview with Jay Taylor: Interview by Victoria Pynchon with Jay Taylor, Partner in IP Practice, Ice Miller LLP (July 13, 2007)...
Mediation Gone Wilder
Posted on June 30, 2008Generally, we mediators like to consider mediation as a safe process, one where the parties can be candid with one another, where they can say what they think, where they can develop and explore options, where they can even apologize if necessary, all without fear that their statements will be used against them later in court...
Domain Name Disputes: You Tube, CTV and American Girl Decided by Arbitrators from the National Arbitration Forum
Posted on June 24, 2008What follows is a Press Release from the National Arbitration ForumMINNEAPOLIS, June 24, 2008—The National Arbitration Forum issued decisions on the rights to YouTube.net, CTV.com, and AmericanGirl.net. Conflicts over domain names are on the rise...
More Alternative ADR Practices: Preventing Patent Shark Attacks
Posted on June 20, 2008If your company's business revenue depends to any degree upon its valuable patent portfolio head on over to the Harvard Business Review website and read "Patent Sharks" by Joachim Henkel and Markus Reitzig.Henkel and Reitzig make the following recommendations to help companies avoid patent shark attacks: Move away from amassing huge patent portfolios for cross-licensing with competitors Simplify standards and create more-modular designs cooperate with competitors early in the R&D process Foster interdepartmental and intercompany cooperation Stop flooding patent offices with insignificant inventions...
The Other ADR: Insurance and Indemnity Agreements
Posted on June 20, 2008(right: Blackberry design patent from Patently-O article on the RIM settlement) Though the term "patent terrorist" is hyperbolic, the points made in How to fight against patent terrorism by Richard Wilder, a partner with Sidley Austin and IP counsel for the Association for Competitive Technology provides valuable advice about ways to protect your company from the expense of patent infringement litigation when the process server knocks on your company door...
IP ADR: Pool Patents for Protection, Prevention and Profit
Posted on June 09, 2008Check out this week's Harvard Business School Working Knowledge article: Monetizing IP: The Executive's Challenge here. As patent protection becomes more and more costly and less and less certain, innovators are pursuing collaborative agreements to prevent disputes from arising in the first instance...
A PLEA TO IP LITIGATORS: DRAW ME PICTURES!!
Posted on June 08, 2008Hap tip to Corner of Lex and Biz for Drawing that Explains Copyright Law with link to Eric J. Heels' Copyright rights, unregulated uses, and fair use whose drawing appears below. This is a plea from your mediator. Yes, I love the well-wrought narrative and yes I am a sucker for persuasive prose...
Oldies but Goodies: Negotiate Better with Socrates and the Negotiation Guru
Posted on May 30, 2008(Socrates image links to a fine article on "Intellectual Cheerfulness" here)As Dr. Leigh Thompson of the Kellogg School of Management at Northwestern University has informed us, only seven percent of negotiators seek information that would reveal the other parties' true goals and aspirations when it would be dramatically helpful to do so...
Counterfeit Handbags, Mediation and the Rule of Law
Posted on May 30, 2008Mediating a fairly run-of-the-mill commercial case – a fight over the sale of an import business -- a federal settlement officer slowly begins to conclude that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags...
It's Not "Just About Money" for Corporate Counsel's Best Legal Department of 2008
Posted on May 20, 2008Qwest Communications is Corporate Counsel's Best Legal Department of 2008. And it's not because Qwest is the fiercest fighter in the litigation jungle. It's partially because Qwest used its in-house negotiation talent to settle a $40 billion lawsuit for $400 million...
Negotiating Patent Infringement Settlements
Posted on May 17, 2008This treatise assumes you've reached agreement in principle or won a judgment or verdict in a patent infringement dispute. Looks like an invaluable resource. Patent Infringement Compensation and Damages. Link here. Publisher's description below...
IP ADR Blog Selected as "Top Blog" for LexisNexis Copyright Law Center
Posted on May 15, 2008Take a look at the new LexisNexis Copyright Law Center where we're pleased to be featured along with our friends at IPKat, the first Blog to welcome us to the IP Blogosphere. Here's what LexisNexis has to say about its new Copyright Law Center:We take pride in associating with the best talent in the legal world, so we are thrilled to include you as part of this dynamic new platform that features commentary from experts and gives visitors to the site the ability to interact with the content and one another...
More on the Absence of a Harry Potter Settlement
Posted on May 07, 2008I've always said that the biggest lie in any business is "I don't take it personally."It seems that some personal-offense-taking may be one of the reasons the lawsuit between billionaire J.K. Rowling and Fan-Lexicon-Site-Builder Steve Vander Ark has not settled (covered by our own Mike Young here and here)...
IPKat Announces the Official Launch of ACID's Mediate to Resolve
Posted on May 07, 2008A little slow on the uptake here in alerting U.S. readers to the official launch of the Anti Copying in Design organization's U.K. Mediate to Resolve service. Illustration and excerpt direct from IPKat. Mediate to Resolve's list of Mediators here...
The Chicago IP Litigation Blog Includes Settle It Now in the Carnival of Trust
Posted on May 05, 2008R. David Donoghue over at the Chicago IP Litigation Blog is hosting a "Carnival" of Blogs that is new to me -- The Carnival of Trust. As David explains:The Carnival of Trust is a monthly, traveling review of ten of the last month's best posts related to various aspects of trust in the business world...
Greek Island Seeks to Bar Gay Women from Using the Term "Lesbian"
Posted on April 30, 2008Too busy to comment, but couldn't resist posting this one. Comments from the IP crowd? Ideas for interest-based solutions from the ADR posse? Mike Young?ATHENS, Greece - A Greek court has been asked to draw the line between the natives of the Aegean Sea island of Lesbos and the world's gay women...
Improver Licenses: a Way to Reward Innovation without Stifling It?
Posted on April 23, 2008Check out Cumulative and Overlapping Innovation by Adam B. Jaffe and Josh Lerner over at Harvard Business School Working Knowledge here as well as Jaffe and Lerner's book Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It, one of the Economist's Best Books of 2004, Economics and Business Category...
((red)) and the ownership of intellectual property
Posted on April 21, 2008The significant problems we face cannot be solvedby the same level of thinking that created them.--Albert EinsteinLawyers, philosophers and scientists are all trained to question first principles. The right of one individual to the absolute and exclusive right of dominion over property by virtue of creation or payment (by money or barter) is one of the first principles of capitalism and is rarely questioned...
Patent Trolls Getting You Down? Ask for a Re-exam
Posted on April 21, 2008See The Unlucky Troll at Forbes.com, excerpt below:.[Chicago lawyer Anthony] Brown first noticed the JPEG patent after quitting his corporate law practice in 1996 and raising just under $1 million from friends and family to fund his new patent-licensing firm...
The Shape of Time (Because it's Sunday AND Passover)
Posted on April 20, 2008. . . and because this puts everything else into perspective -- including our own ability to know anything other than our (highly flawed) perception of it . . . . which has to do with negotiating past impasse . . . . . I'll let you decide why ...
Patent Construction Reversal Rate So High "You Can't Advise Your Clients on What's Going to Happen"
Posted on April 19, 2008There are dozens of reasons why a negotiated settlement of a patent infringement case is superior to continued litigation, but only one reason why it's even better than winning. As law.com recently reported, "over the last decade, 38 percent of the cases had at least one term found on appeal to have been wrongly construed [and] ...
Where Fantasy and Fair Use Collide
Posted on April 18, 2008Harry Potter and Copyright Fair Use junkies know this already -- there is a firestorm brewing between the not insignificant powers (and financial resources) of JK Rowling and her Harry Potter franchise (which includes Warner Brothers) on the one hand and RDR, the wanna-be publisher of a fan's "Lexicon" or reference guide, on the other...
Do You Need a Magic Wand to Settle with a Billionaire?
Posted on April 18, 2008A mere muggle gets it. But will IP attorneys heed the call to mediate? In the epic Harry Potter copyright fair use battle now under way in a District Court in New York, the mortal judge is wondering out loud -- from the bench -- why these parties can't just settle their dispute...
IP Mediation Advocacy: CPR Master Guide to Patent Mediation
Posted on April 10, 2008Check out this book -- Patent Mediation, Better Solutions for Business -- and other resources at the International Institute for Conflict Prevention and Resolution here today!Provides a five-step roadmap for helping in-house counsel and corporate leaders utilize mediation, when appropriate, a strategy proven to substantially reduce the cost of patent disputes...
Hard Bargaining: What's Machiavelli Got to Do with It?
Posted on April 07, 2008Former Executive Vice-President and General Counsel to The Walt Disney Company, entertainment law heavy-weight Lou Meisinger knows more about driving a hard bargain than anyone I know. Yet it is Lou who taught me that the deal you drive too hard is the one that will come back to bite you...
Live Blogging from the ABA ADR Conference in Seattle
Posted on April 04, 2008Former Federal Magistrate and IP ADR Blogger, John Leo Wagner and I presented Tactics of the Adept in Modern Mediation Practice today at the ABA ADR Convention in Seattle. We had a lively discussion about the ways in which "at the table" tactics can be strategized in advance to assure that the right people are available for deployment at the optimal time to maximize the potential for the most effective and efficient settlement possible...
No You Can't Contract Your Way Around the FAA: Supreme Court Decides Hall v. Mattel
Posted on March 25, 2008Here's the opinion: comment soon.
Help! Your Federal Judges and Settlement Officers
Posted on March 23, 2008Check out Federal Judges Speak Out On Intellectual Property Litigation at the Guiding Rights Blog.by Mark VB Partridge.Mark conveys the advice of three federal court judges: Virginia Kendall, Rebecca Pallmeyer, and Matthew Kennelly as follows: 1...
. . . . and that you haven't violated my client's copyright in "Easter Bunny"?
Posted on March 22, 2008by the incomparable Charles Fincher of LawComix!
Frankly, We're Surprised This Didn't Happen Earlier: Class Action Seeks to Stop RIAA Bullying
Posted on March 16, 2008From Concurring opinions hereAs the folks at Recording Industry v. The People note, the 109-page complaint begins by invoking the RIAA's statement that it sometimes catches dolphins when fishing. It is a bold way to show the possible callousness of the RIAA and MediaSentry ...
IP Mediator Michael Young's "Girls Gone Wild" Commentary Catches Court's Attention
Posted on March 12, 2008From ALTERNATIVES TO THE HIGH COST OF LITIGATION, INTERNATIONAL INSTITUTE FOR CONFLICT PREVENTION & RESOLUTION VOL. 26 NO. 3 MARCH 2008UPDATE: DESPITE MEDIATION RELATED INCARCERATION, GIRLS GONE WILD FOUNDER IS HEADED FOR MORE ADR A federal judge has rejected a recusal motion from the maker of the Girls Gone Wild videos, who challenged the judge’s impartiality for first ordering mediation, and then sending the producer to jail for contempt based on his ADR conduct...
USC IP Institute 17 and 18 March 2008
Posted on March 12, 2008Mike Young writes to tell us that the USC IP Institute is coming up on March 17 and 18. See brochure below. Mike is moderating a panel on fair use with a a group of experts, including Tony Falzone. Tony is with Stanford's Fair Use Project, and is currently in hot litigation with J...
Speedy Patent Trials? Check Out the Northern District of California
Posted on March 11, 2008We mediators long for the day when we can no longer use the expense, delay and uncertainty of trial as a good reason to settle your patent litigation. Why? Because mediation, as Diane Levin recently wrote, is simply an alternative -- not necessarily the "appropriate" -- means of resolving your clients' dispute...
Mediation Confidentiality in California: A Power Point Presentation
Posted on March 11, 2008Confidentiality in Settlement Negotiations and Mediation - Get more free documents
Prepare to Celebrate World IP Day
Posted on March 11, 2008“Never before in history has innovation offered promise of so much to so many in so short a time.” "Intellectual property has the shelf life of a banana." These two quotes from world-class innovator and IP rights owner, Bill Gates, say it all about the state of intellectual property today...
You Have Coverage for that IP Dispute? Follow the Money!
Posted on March 10, 2008How important is insurance coverage to your clients' decision to bring or defend or negotiate the resolution of a commercial dispute? It's usually the difference between having options and being entirely out of luck.And when that decision concerns catastrophic losses? Unless you are an insurance coverage specialist, you make coverage decisions at your peril...
The Moment an Idea is Divulged, It Forces itself into the Possession of Everyone
Posted on March 06, 2008This is the sort of statement I simply cannot resist. Thanks to TechDirt!If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it...
Rule 408 No Bar to Proving Settlement in Trademark Case
Posted on March 05, 2008See No do-overs, no take-backs over at Likelihood of Confusion, excerpt below:Hypothetical: We are negotiating a trademark dispute. During those negotiations — which we both agree are being undertaken for purposes of settling our dispute — I, trademark user, promise not to object to (i...
Not Breaking News: A Trademark Tutorial from Lindquist and Vennum
Posted on March 03, 2008(image from the U.K. Trademark Application Blog)What's the difference between an IP arbitrator or mediator and a general commercial arbitrator and mediator? Some of us -- like Les Weinstein and Michael Young -- have devoted substantial parts of their careers to patent (Les) and trademark (Michael) litigation...
Why an IP ADR Blog? Because We Aggregate IP Settlement Information for You!
Posted on March 03, 2008Someone once asked me whether IP ADR was too narrow a topic to justify an entire blog(!!!!)Any regular reader will chuckle in response. Check out, for instance, the IP Blogs listed on the ABA Blawg site. This week's featured blog, Patently O, is one of the best IP blogs in the world...
Patent Infringement Settlements in the News
Posted on February 29, 2008EBay Agrees to Buy Patents From MercExchange, Settling Long-Running Dispute EBay Inc. has settled a seven-year patent dispute with MercExchange LLC that prompted an important intellectual property ruling from the U.S. Supreme Court. The online auction company said in a statement Thursday that it bought the three MercExchange patents it had been accused of violating...
Seagate a Floodgate to Patent ADR?
Posted on February 28, 2008(above, floodgates along the Bitan Dam by Poagao)The U.S. Supreme Court just denied review of Convolve Inc. v. Seagate Technology. Why do we care? Because in Seagate, the Federal Circuit reversed a long established precedent and announced a new and higher standard for obtaining treble damages in patent cases, which could have the impact of making some patent cases more receptive to mediation or other ADR processes...
The Easiest Way to Get What You Want: Say Please
Posted on February 28, 2008Recently I re-posted Five Ways to Minimize Risk of Copyright Liability from Citizen Media here. Today, IP attorney extraordinaire Tamera Bennett (left) dropped by to remind us of our own ADR "core values," i.e., self-determination and respect for the rights of others...
WOW!! IP Think Tank Global Week in Review
Posted on February 22, 2008Unbelievably extensive link roll to global IP resources in a single week! Check it out. I just subscribed but am thinking I'd need to take a vacation to keep up!Thanks Duncan!By the way, the patent infringement case I was talking about involved one co-defendant selling its business to another co-defendant where the two businesses had different geographic markets; different distribution channels; different strengths; different weaknesses; and, the seller was cash poor due to the litigation...
Settle the Patent Infringement Case by Selling Your Company?
Posted on February 14, 2008Patent infringement settlements sometimes include the drastic remedy of selling your company. It is the exception, but by no means any longer surprising, when the parties to a patent infringment mediation inform me that the co-defendants have been exploring the option of a buy-out while I was in separate caucus with the plaintiff...
Five Ways to Minimize Risk of Copyright Liability from Citizen Media
Posted on February 14, 2008We've said this before: prevention beats every dispute resolution mechanism available so long as you do not limit your own freedom out of fear of liability. That said, here are the top five tips for using copyrighted material fearlessly from the extraordinarily concise and helpful "Primer on Copyright Liability and Fair Use" from the Citizen Media Law Project Blog...
What is the Most Difficult Time to Settle Your Patent Infringement Case? Right After a $432 Million Verdict
Posted on February 13, 2008(if you want to see other photos of heart stents -- the product at issue here -- go to commercial photographer Rick Lee's Blog -- On Location with Rick Lee) Why would we be talking settlement on the heels of the jury verdict Dickstein Shapiro attorney Gary Hoffman just brought home for his physician-inventor client as reported in law...
Outsourcing IP Work to India? Maybe its Time for a Career Change
Posted on February 12, 2008Apparently, you can outsource IP work, along with your document management tasks, to India. At least that's what Howrey's counting on all the while denying that its outsourcing. Here's an excerpt from Howrey Opens Office in India, Gives Clients Lower-Cost Option, "It's not outsourcing," insists Robert Ruyak, managing partner and CEO of Howrey, describing his firm's new office in India...
IP ADR Dictionary: "S" is for Story Telling
Posted on February 08, 2008I was once contacted by one of the writers for the hit series House who wanted to know what the parties may do doing a mediation. After explaining several current mediation "processes" to him, I said this...
Yes, You Should -- If At All Possible -- Seek Legal Advice When Served With a Cease and Desist Letter
Posted on January 28, 2008(right: my attorney)Yesterday I suggested that by reading Professor Marc Randazza's post Copyright vs. Free Speech (etc.) you could learn how to "respond to legal bullying without hiring a lawyer." When Paul Levy of the Public Citizen Litigation Group asked me what part of the Legal Satyricon's advice I was referring to, I pointed him to Randazza's citation of the Streisand Effect, the story of which reads as follows:A few years ago, Kenneth Adelman posted aerial photos of Barbara Streisand’s home on the intertubes...
Copyrighting Comedy
Posted on January 28, 2008Thanks to Les Weinstein for hipping us to Mark Lacter's Daily Dragon -- this item on Jay Leno's federal copyright infringement action. It's always been a pretty gray area, but don't tell that to Jay Leno and Rita Rudner who have settled a federal copyright lawsuit against author Judy Brown and several book publishers...
Cease and Desist Letter Posting Not Likely to Constitute Infringement
Posted on January 27, 2008Reading the news in the blogosphere is sort of like reading your opponent's brief for the first time -- you're pretty certain you know that's not the law, but if you don't read the cases cited, it looks pretty nauseatingly right. Nauseating because it makes your arguments about your client's legal rights ...
Ninth Circuit Decides Comedy Club Arbitration Battle
Posted on January 23, 2008Mr. Thrifty and I have been known to walk to the IMPROV (Jerry Seinfeld, Sarah Silverman, and before Mr. T., even Rosanne Barr before she was Rosanne). The club is right around the corner from our little neighborhood -- the one that's recently been renamed "Beverly Grove" in honor of the two shopping centers that anchor it firmly in L...
Is Copyright Protection One of the Interests We're Willing to Give Up Net Freedom For?
Posted on January 23, 2008I don't purport to be an expert in the field of internet monitoring for the prevention of copyright infringement -- though the word "prevention" does suggest prior restraints on free speech. Because we are here at the commencement of the development of the law in regard to internet freedom, all lawyers, not just IP lawyers, should take an interest and let themselves be heard...
The American Car Industry: Lose Your Market & Intentionally Alienate Your Fans
Posted on January 19, 2008I'm posting a photo of a 1956 Chevy instead of the 1956 Ford I remember being my family's first new car because Ford apparently doesn't want anyone to promote their vehicles. Image from Military.com's "Ride of the Week."Read on below:Thanks again to Plagiarism Today's Weekend Linkroll for continuing to follow companies in self-destruct mode down their own garden paths...
When it Comes to Web Searches, We're Incompetent and Irritable: What's an IP Litigator to Do?
Posted on January 17, 2008Recently, I've noticed Yahoo telling me the number of seconds I've been waiting to get my hands on my email when it doesn't appear instantaneously. I'm a little abashed when I realize I'm already getting annoyed by the time Yahoo informs me I've been waiting for only 22...
Patently O Identifies Top IP Law Schools
Posted on January 14, 2008Here's a law school ranking list for that small but elite group of aspirants to the legal trade -- engineers who want to be lawyers (my brain burns at the cognitive dissonance) -- Dennis Crouch's Top Thirty [Law School] Patent Programs (Ranked by Patently-O Hits!)Here are the top ten -- George Washington; University of Texas at Austin; DePaul; Columbia; U...
Domain Name Disputes on the Rise and Resolved Primarily in Favor of Trademark Holders
Posted on January 12, 2008The Wall Street Journal Law Blog reports Domain-Name Disputes at an All-Time High. What interests me is not the number of complaints filed by trademark owners against cybersquatters under the “Uniform Domain Name Dispute Resolution Policy” (UDRP) -- 1 in 1999 and 2,156 in 2007 -- but WIPO's report that "[a]bout 85% of trademark owners prevail when they bring these complaints...
Colm Brannigan and Michael Erdle on Mediating Canadian I.T. Disputes
Posted on January 09, 2008Ontario-based mediator Colm Brannigan * has passed along a valuable article on the mediation of Information Technology disputes from a June '07 Ontario Bar Journal publication. The article, Resolving I.T. Disputes through ADR -- Part I Mediation was written by Colm with his co-author Michael Erdle...
What Lawyers are Looking for from Mediators
Posted on January 08, 2008Thanks to Colm Brannigan for posing this question to the LinkedIn Legal Community: What Qualities Do Counsel Look for in a Mediator? We've already posted -- here -- the answer of L.A. Sheppard Mullin attorney Jim Burgess. Below, we give you the thorough and insightful answer of Vermont attorney, mediator and arbitrator Richard Cassidy of Hoff Curtis...
Threats, Lawsuits Fail to Revive Industry & Fool Says Don't Rush In
Posted on January 05, 2008Plagiarism Today continues to provide us with the best aggregation of IP news every week in its Saturday Linkroll. Today we're linked to Corante's post "Even Fools Don't Invest in the Music Business," noting the Motley Fool's warning (We're All Thieves to the RIAA) thata good sign of a dying industry that investors might want to avoid is when it would rather litigate than innovate, signaling a potential destroyer of value...
RIP YES; SHARE NO: THE RIAA SPEAKS
Posted on January 04, 2008Direct from NPR to Engadget to our readers:Speaking to NPR, RIAA president Cary Sherman . . . said . . . that the RIAA hasn't ever prosecuted anyone for ripping or copying for personal use, and that the only issue in the Jeffrey Howell case was -- as always -- sharing files on Kazaa...
When a "Cease and Desist" Letter is the ADR of Choice
Posted on January 04, 2008Take a look at this excellent article -- Pirates Stealing Content from Rival Website -- by Florida Gunster Yoakley lawyers David Bates and Meenu Sasser.This one-page article is well-worth reading if you or your clients possess anything of value on the internet that can be "scraped" by pirates...
The IP Litigator's Holy Grail: Dismissal without Leave to Amend
Posted on January 02, 2008(left, the victorious Karen R. Thorland of Loeb & Loeb)Just as we're waxing philosophic about litigation's questionable ability to effectively and efficiently resolve a dispute requiring factual findings, along comes a ruling that not only resolves a mixed question of law and fact, but does so at the pleading stage without giving Plaintiff a chance to amend the Complaint...
Duane Morris on Lapp Factors: Are We Clear? Crystal!
Posted on January 02, 2008Duane Morris reports today on the Third Circuit Decision Clarif[ying] Proper Use of Lapp Factors in Trade Dress Infringement Actions.I leave the strictly legal analysis to my fellow IP legal bloggers. See e.g. the 43(B)log's treatment of the denial of the preliminary injunction by the District Court here...
Happy New Year by Anthony (Space
Posted on January 01, 2008Happy New Year by Anthony (Space Potato)
Possessed by Possession: Egypt to Copyright Pyramids
Posted on December 29, 2007Wikimedia assures me this photograph is royalty free. The pyramid it depicts? Not so much.Thanks again to Plagiarism Today's Saturday Linkroll for this citation to the Christmas 2007 record:Cairo - In a potential blow to themed resorts from Vegas to Tokyo, Egypt is to pass a law requiring payment of royalties whenever its ancient monuments, from the pyramids to the sphinx, are reproduced...
Wikimedia Commons: Sharing IP Visions with No Strings Attached
Posted on December 29, 2007Bloggers with no visual artistic talent -- like me -- are perennially searching for free images to emphasize or draw attention to the central theme of their prose. As powerful as words can be, they cannot deliver the multi-layered messages contained in a single image with the same degree of immediacy or power...
From Theory to Practice: the Questionable use of Custom in the Law Governing Intellectual Property
Posted on December 27, 2007If you're feeling all pipe-smokish and tweedy this holiday season, take a look at Loyola Law School Professor Jennifer E. Rothman's article in the Virginia Law Review, The Questionable Use of Custom in Intellectual Property (2007) 93 Va. L. Rev...
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