BC Law IPTF Blog

Today SCOTUS finally handed down its decision in KSR v. Teleflex and weighed in on the nonobviousness standard. Writing for a unanimous Court, Justice Kennedy, as expected, rejected the Federal Circuit’s current test for nonobviousness - whether there was a teaching, suggestion, or motivation (TSM) to combine prior art references. The TSM test does provide helpful insights into the nonobvious inquiry, however, that does not demand the application of a narrow and rigid standard. Under the new standard the court must determine whether the is more than a predictable use of the prior art elements according to their established functions. Just a preliminary post. More to come.

I often hear the “rumor” that if you go to challenge a traffic violation, and the arresting officer doesn’ t show up, you’re automatically let go. So, one time, I went into an Orange County, MA, courthouse to contest a speeding ticket—I honestly don’t think I was going as fast as the cop reports I was going.

I go into a room, and at a desk, there’s a woman who mumbles something about who she is—she looked half-asleep—and asked me what happened. I told her that it was late at night, and I was going down a hill. I remember being mindful of my speed because I know there are lots of cops out on Route 2 late at night. All of a sudden, I see these lights bearing down on me from the top of the hill, and then they’re tailgating me… So I probably sped up a bit. And then he hit his lights, and then I find a ticket in my hand.

She kind of glances up at me and says, “I don’t believe you.” And she says I have to pay the fine. But then I ask her, I thought that if the police officer who arrested me isn’t here, then I get off. She said, no, she represents the police officer, and the ticket still stands. What?

So for the longest time, I thought this “cop no-show” freebie was a myth. But I’m studying Evidence, and I run across Fed. R. Evid. 803(8)(B). It says that records of public offices setting forth matters observed pursuant to duty imposed by law fall under hearsay exceptions, excluding matters in criminal cases observed by police officers. So, if a traffic violation is a criminal case where my speed was a matter observed by a police officer, then this out-of-court written statement is hearsay. The police officer may appear at court to testify as to the contents of that writing, but the writing in itself is not evidence admissible into court.

I think this means that lady in Orange County, MA, screwed me. (Unless, for that level of violation, the rules of evidence are “relaxed.”)

Today, my buddy Adam and I presented at a roundtable at MiT5 about Adam’s project, Edtags.org. Here’s the abstract from the presentation:

Identifying Online Experts, Paul Ham, Adam Seldow
Our research involves building a community of experts at the Harvard Graduate School of Education around a socio-semantic networking web site, Edtags.org. Through our work with the web-site, we have come across a recent set of questions regarding the make-up of the community and culture. How do we ensure that populations of participants are “experts” in a field? Is it a matter of “numbers” or must there be a screening process to verify the users for participation? Should we screen the content for our specific field, and if so how? What is the critical mass of endorsed sites on a socio-semantic network that changes it from a place where educators save bookmarks to a place where educators save bookmarks and discover new ones? Lastly, how can search engines best distinguish “credible” sites from “socio-spites” (socio-semantic networking spam sites)?

We presented alongside sam smiley, a professor at Lesley College, and ended up having a great discussion about ownership, copyright, content management, as well as identifying experts in an online community site. We also got to show off the latest version of Edtags.org, which just keeps on getting better and better.

Our biggest questions were regarding how to identify experts: are they self-identified (I’m a professor or through self-tagging), community-identified (through votes or friends), or moderated (by Adam)? Though we didn’t end up with concrete answers, we did receive a lot of feedback on how to think about expertise on-line and safe ways of developing community.

One thing that I’m definitely going to keep track of is avoiding “forcing” people to have friends. You can suggest friends and explain why: these are users who are similar to you based upon their tags or their bookmarks; these are bookmarks recommended to you based upon your bookmarks; etc. But don’t force people into communities.

Also, it sounds like right now that self-selection and organic-selection of experts seems to work and won’t inhibit our user growth.

Adam also announced our new project, through Seth, to open source and distribute the Edtags code hopefully by the end of the summer.

The shiznit’s going down on Todd Goldman and his company, David and Goliath. Essentially, Goldman decided to hire some artists to rip-off Threadless t-shirt designs.

For those who don’t know about Threadless (or D&G), it’s a community-based web site where t-shirt designers submit their work and people comment on them and then buy the final designs. They encourage participation by offering deals like if you upload pictures of you wearing their t-shirts, then you’ll get a discount. Great idea, very successful, and, best of all great, t-shirts. (I own a… Bunch.)

Since this has blown up on the Internet, Goldman’s lawyer has been e-mailing bloggers who are discussing this issue–”We have acquired articles posted on your website which contain defaming, derogatory and malicious statements about Mr. Goldman“–asking them to remove posts from their blogs. But now it looks like his lawyer is apologizing at least to the artists for the rip-offs.

Here are some of the rip-offs, posted on Penny Arcade:

I’m always impressed when I go through and moderate the sp*# on this blog that our sp*# filter has caught over 34,000 sp*# comments over the 9 or so months this has been up.

I’m also encouraged that at least when the sp*#-ers are looking for posts to comment on, they read through a bunch of pages before finding a choice one to post their comments on… And then have them hung up on the sp*# moderation queue. Thanks, guys!

The other thing that impresses me about this blog is how low the consistent readership is compared to how many people actually find the content from search engines. Most of the time when I look through the site stats, I click on the Google searches, and the BCIPTF blog usually shows on the first page of results.

This means we’re either doing a good job of writing about interesting things, or the things we write about are so obscure that no one else writes about them.

I love this study: Is Plain Language better? Comparative Readability Study of Plain Language Court Forms by Maria Mindlin. (PDF)

The study re-writes a Subpoena Duces Tecum and a Proof of Personal Service and discoveres—no joke—that if you re-write them using simpler English, people understand them better.

I am very much against the use of legalese in court documents. While I still want lawyers to have the ability to decrypt legalese, why should we make it harder for each other and especially harder for laypeople?

I ran across this article while trying to find better language for a Subpoena Duces Tecum. The subpoena forms found in the Mass. Practice books or online are crap. The language is meaningless. What do you really need to say? You’re telling someone to come to a courthouse about certain information, over a certain matter, by a certain date. You could really say:

You are ordered by the Commonwealth of Massachusetts to testify at the Grimes Courthouse at 123 Lawsuit Road, Boston, MA - (617) 123-12345 - at 9:00 AM EST regarding Jones v. Jones (Docket No.: 12-D07-1234).

You are ordered to bring with you all documents relating to all bank accounts in the name of John Jones (S.S.N.: 123-45-6789)…

If you do no follow these orders…

And then you’re done. Pretty clear what you have to do, right? And then you serve this with a cover letter that says that if they just mail you the documents by a certain date, then the people you serve don’t have to show at the courthouse. I would even go as far as Maria Mindlin recommends and change the name from Subpoena Duces Tecum to “Order to Go to Court and Provide Documents.”

Just cut through the bullshit and tell people clearly and precisely what they need to do. Wouldn’t everything be easier that way?

Which also reminds me: Often I’ll call an organization before I subpoena them to find the name of the Keeper of the Records. Usually, people know who this person is. But sometimes when people hear the word “subpoena,” they freak out and figure out a way not to give me that information. (”Oh, you have to send it to someone in California in the legal department there.” “Oh, I don’t know who that should go to… [click - dialtone].”) But if I just told them I need to serve a court order to get some account information from a customer involved in a lawsuit, then I bet it’d be less threatening.