BC Law IPTF Blog

Hackers recently intercepted e-mails and phone conversations from MediaDefender, a company that monitors torrent tracking sites and seeds fake content to discourage illegal downloading. They purportedly did this by tracking down a MediaDefender plant in a torrent forum by the user’s IP, obtained his password for the forum, and then tried that password on his Gmail account… And voila! They had access to his Gmail, to which he had forwarded his work e-mail.

(I wonder if betraying his password would violate the torrent forum’s TOS—and whether the user might have a claim against them for that. For example, he accepted the TOS which formed a contract between him and the forum owners, and if they promise to keep his password secure, then they breached the contract… Then, damages?)

The leaked e-mails and phone conversation (the latter, a separate hack) revealed which sites MediaDefender “policed” and some conversations they had with the NY Attorney General’s Office about aiding the AGO with a child porn investigation. (Yes, more child porn on this blog.) Ironically, in the phone call with the AGO, MediaDefender stressed how secure their services were given the highly sensitive nature of the AGO investigation.

On top of it all, there’s evidence that MediaDefender created a fake torrent site, a “honeypot,” named MiiVi to lure and trap torrent users (from an ArsTechnica post):

A web site called MiiVi allegedly offered full-length motion pictures for download and offered to install special client software on the user’s computer to help speed up the downloads. However, the software did a little more than that: it also reportedly performed searches of the user’s computer for other illegal software and reported its findings back to MediaDefender. Acting on a tip from The Pirate Bay, the online publication ZeroPaid began an “investigation” (a followup to Torrent Freak’s article) and found that MediaDefender didn’t make much of an effort to hide who was behind MiiVi. The whois records for MiiVi were clearly registered to MediaDefender with the company’s address in California and administrative contact information within the company.

In reaction to this shit-storm, MediaDefender has sent cease and desists to at least MegaNova and isoHunt, to which they’ve responded derisively. From the ArsTechnica article:

[T]he isoHunt administrator says that the he will comply with the request if it is properly submitted. “Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it,” he concedes, “just as soon as we’re done laughing at you.”  

“Dearest little asstunnels, Let me start off by thanking you for your pitiful attempt to have your e-mails removed from the entire internet,” Meganova’s response says. “In case you haven’t noticed, this site is located in Europe (I hope you can point it out on a map) where your stupid copyright claims have no base. But fair is fair you guys did suffer over the past week so here’s bit of advice to you guys: F*** you! F*** you again! F*** you again and again and again!”

Furthermore, MediaDefender has written to sites that have published the list of torrent sites they’ve been targeting, bullying them into removing the list.

Gotta love the drama. And asstunnels.

Lifehack.org has an interesting post on Taking Notes that Work. Probably pretty applicable for law school students.

I think a lot of people, students and professionals alike, attempt to capture a complete record of a lecture, book, or meeting in their notes — to create, in effect, minutes. This is a recipe for failure. Trying to get every last fact and figure down like that leaves no room for thinking about what you’re writing and how it fits together.

I’m going to try the first bit which generally says to just focus on the new stuff you’re learning; don’t write down the stuff you already know.

Your focus while taking notes should be two-fold. First, what’s new to you? There’s no point in writing down facts you already know. If you already know the Declaration of Independence was written and signed in 1776, there’s no reason to write that down. Anything you know you know you can leave out of your notes.

This is an old question, but deserving an occasional update:

The Manual of Patent Examining Procedure (“MPEP”) defines a product-by-process claim as “a product claim that defines the claimed product in terms of the process by which it is made . . .” Manual of Patent Examining Procedure (MPEP) § 2173.05(p).  Product-by-process claims were originally limited to circumstances where the product could not be described or distinguished from prior art solely in structural terms, but required reference to the process by which the product was made.  This principle was called “Painter’s Necessity Rule.”  In re Painter.  Today, however, the patent office no longer applies “Painter’s necessity rule” and issues product-by-process claims even where the applicant is able to describe and distinguish the invention solely in terms of composition or structure.  In re Hughes (permitted product-by-process claims even though applicant could describe the invention in structural terms); see also MPEP § 2173.05(p). 

Some district courts have approached analysis of product-by-process claims in infringement suits by explicitly following either Scripps Clinic & Research Foundation  v. Genentech, Inc., or Atlantic Thermoplastics Co. v. Faytex Corp..  A Scripps interpretation fails to limit a product-by-process claim by the process steps, and may render a competitor’s very similar product made by a different process an infringing product.  An Atlantic Thermoplastics interpretation would limit a patented product to the process described in the claim, thus distinguishing a competing noninfringing product from the patented product.  Judge Newman in her dissents states that it is most useful to focus on the facts of the case to determine whether the process limits the process in a product-by-process claim.  See Atlantic Thermoplastics Co., Inc., (Newman, dissenting).  The claims in Scripps were directed to a product that was new and unobvious, and because of its structural complexity, required definition in process terms.  See Scripps Clinic & Research Found.. To Judge Newman, the Scripps claims constituted “true product-by-process claims.”  Atlantic Thermoplastics Co., Inc..  

In contrast, claims similar to those in Atlantic Thermoplastics tend to be directed to relatively simple products that are capable of compositional or structural definition.  See Atlantic Thermoplastics Co., Inc.. Judge Newman refers to this class of claims where the product is old or readily described in structural terms but the process is new as “product of the process claims”.  Atlantic Thermoplastics Co., Inc..  Such products are not properly claimed using the product-by-process format, and thus should be infringed only when an identical or equivalent process is used.  Essentially, Judge Newman’s arguments bring Painter’s necessity rule back into the twenty-first century to apply it to the infringement context.                         

An alternative strategy that can be used independently to avoid choosing between Scripps and Atlantic Thermoplastics, or to support choice of precedent described supra, is to follow the quintessential case on modern claim construction, Phillips v. AWH Corp., and apply traditional construction techniques to product-by-process claims.  Traditional construction techniques involve referring to the specification and prosecution history to interpret patent claims.  For example, the court in Cryovac Inc. v. Pechiney Plastic Packaging, Inc., noted the dissonance in Federal Circuit precedent regarding infringement of product-by-process claims, and instead applied Phillips to find that “[T]he determination of whether the process is properly viewed as a limitation is a context-specific inquiry . . . whether [the claim] contains a product-by-process limitation or not, must be construed in light of the specification.”  The Court found that packing material made from layers oriented coextruded film was limited to the product as accomplished by a racking or blowing process, because the blowing process was described in the specification – both general description and examples - of the patent.    

In addition to the specification, Phillips directs the court and parties to examine the prosecution history of the patent to determine the definition of product-by-process claim terms.  If an applicant points to or adds process limitations to support novelty or nonobviousness or to distinguish prior art, such limitations “act as a limit on the claim for purposes of infringement analysis.”  Kennametal, Inc. v. Cerametal S.A.R.L..  For example, the patent claims in Kennametal, Inc. v. Cerametal S.A.R.L., which were directed to high pressure water jet nozzles, were originally rejected by the Examiner as anticipated by prior art.  In response to the rejection, the patentee amended the claims referring to “a high pressure injection nozzle member” to add the process language “formed by liquid phase sintering without imparting external pressure”.  The patentee stated that the amended claims were not anticipated by prior art because the prior art failed to teach the sintering process without the pressure.  The court recognized that the patentee “inserted the process language specifically to avoid the prior art,” and emphasized that “‘if claim scope is relinquished during prosecution on grounds of patentability, the doctrine of prosecution history estoppel provides that the relinquished scope can not (sic) be recovered’ in an infringement action.”              

These specification and prosecution history arguments may not only independently demonstrate that process steps limit its product claims, but also provide support for following Atlantic Thermoplastics and not Scripps.  For example, if a patent owner is able to analyze the composition and structure of the two competing products in order to bring an infringement suit, then is should not need to resort to the production process to support patentability and infringement.  In that case, the patent owner’s claim may more properly be described as a “product of the process claim” instead of a “true product-by-process claim,” evoking Atlantic Thermoplastics and eliminating Scripps as appropriate precedent to follow.

On Friday, the House endorsed a bill encompassing some of the most significant changes in patent law in the last 50 years.  One of these changes defines “inventorship” of a patent as the first person or group to file the patent application, as opposed to the current practice of giving inventorship to the first person or group to “invent”.  The patent systems of most other countries grant patents to the first person/group to file the application.

Thus, it is said that this change to the first to file standard will bring the US patent system into harmony with that of the international community.  Foreign inventors will have less of a disadvantage in filing American patent applications.  Further, there is no problem of evidence or proof of inventorship that is experienced in the first to invent system.  Currently, the PTO and courts must expend time and other resources tracking evidence of parties who argue about who invented something first, right down to the question of what “invent” even means (first to conceive of the idea, first to reduce to practice, etc). 

However, independent inventors may find themselves at a disadvantage in this first to file system.  They do not have the resources or legal departments that big companies have, and thus may be slower to file applications than their counterparts.  Thus, the first people that have an idea and carry it through may not be the same people who are granted the patent.  In fact, many people argue that the new system will make it easier to claim (or steal) someone else’s ideas. 

Particularly in the United States, where independence and individuality are valued highly, this might be a tough change to swallow.  On the flipside though, this change to first to file will have the effect of giving the public the benefit of the invention faster.

I’ve decided to give the Apple iWork Pages ‘08 a fair shake in the word processor wars. It’s taking me a bit to get used to it. But my first impression of the cleanliness of the interface and the way it aesthetically “fits in” with the Mac environment assisted my persistence with the new world. (The biggest thing, immediately, was that it “knew” how to size the page and text to my 12″ Powerbook screen. Word always felt a bit uncomfortable: Was the page screen in the middle of the screen or to the left? Normal view or Page view? Zoom at 115% or 135%? Things like that.)

Let’s start by saying that it’s been about a month, and I’m still using it in lieu of Microsoft Word.

There’s no default font setting in Pages. So if you want all your documents to *not* use Helvetica 12-pt, then you have to create a new “Blank” template. (My font is Georgia 11-pt, for the record.) I can handle that.

You create shortcut keys for special characters in the Preferences… menu option. For example, in Word I’d map option-6 to the “section” symbol; option-shift-p to the “pi” symbol for “plaintiff,” etc. In Pages, I map things differently. Instead of key combinations, I use typed macros: “-s” for section, -pp for pi. Fine.

What kills me is that two dashes doesn’t auto-correct to an em-dash without a trailing space in Pages. (”Dash dash space” instead of just “dash dash.”) And when I insert mathematical symbols, the leading gets screwed up. And the bullet schemes are weird; I like the Word filled bullet on level one, then hollow bullet on level two. And their nice thick bullets, not the anemic ones that Pages uses.

But there are smart things in Pages. (Like the many more smart things in Numbers, the Excel rival.) I just tried a spell-check. In Pages, it’s called Proofread. And you know what it proofread for me? It told me that “prior to” is too wordy, and I should just use “before.” Ah, proofreading only a lawyer can love! And then it told me that I should limit my usage of the word “input” to computer and other technical uses. Kind of groovy, if you ask me. It’s the touch of an actual editor and proofreader, and not just some linguistically brute-force algorithm that makes vague suggestions insulting your style a la Word.

And so I’ll continue to plug away with Pages. Hopefully I don’t get stuck with Betamax on this one.

Local rules for patent cases have become all the rage these days.  It all started with the Northern District of California, followed by the Southern District of California, Eastern District of Texas, and the Northern District of Georgia, amongst others.  Some judges in jurisdictions without local rules have even adopted very similar sets of rules for their own use. 

These rules all have common features.  They require early disclosures of Preliminary Infringement Contentions and Preliminary Invalidity Contentions, together with supporting documents.  They require parties to set out a schedule at the Rule 26 conference, deciding the course of claim construction.  Parties must exchange lists of terms to be construed, preliminary constructions, and then submit a joint claim construction statement.  Construction briefs must be written.  Finally, the claim construction hearing (or “Markman Hearing”) is held, where the judge hears both parties’ constructions and supporting evidence, and finally decides on the construction to be used for the rest of the litigation.

The advantage of these patent local rules is that they set deadlines for the completion of claim construction discovery and the hearing, thus pushing the cases along the court docket.  Parties can focus early on what terms they need to research and construe, and what interpretations will work best for their arguments.  Early disclosure ensures cooperation in these endeavors.  Jurisdictions with these patent local rules are thus popular with plaintiffs who want resolution quickly.

However, patent local rules have been criticized because they may focus the issues too early, before the parties ( and the judge) really know what is at stake.  Rules that do not allow changes in construction after preliminary exchanges may be too rigid as parties realize later in the case that they missed important issues.  Further, many of these procedural events occur before the judge is able to comprehend technology involved.  For this, many have recommended neutral tutorial sessions for the judge, or assistance of Special Masters to help the judge learn the technology or science involved in the case.

The Boston Globe recently ran an article by Sacha Pfeiffer regarding the possibility of drafting patent local rules for D. Mass..  Judge Stearns gave positive comments, and a few other judges have responded positively.  The current President of the BPLA, Lee Bromberg, said that applying patent local rules in D. Mass. would make the jurisdiction more attractive for plaintiffs, lowering costs of litigation for local businesses (particularly some of the smaller biotech companies), and also boost business for local hotels, restaurants, law firms, and support as more people come to litigate.  Just look what making patent litigation more attractive did for E.D. Tex.!  It will be an interesting story to follow as rules are drafted and tried out by the D. Mass. judges.      

Take old gift cards and turn them into coasters…

But don’t we have enough coasters in this world? And coasters that essential that we have to keep on making more? Can’t we just think a little harder and figure out other ways of recycling(or upcycling) our used materials than… Coasters?

Here’s a better idea, for saving paper: Reduce the margins in your word processor to save paper.

Looking at the Twitters, the Facebook statuses, the Tumblrs, and all the other micro-content services that broadcast your state of mind to your network, I can’t help but be nostalgic and hearken back to the we-knew-it-way-back-when of the .plan file.

Back in the day, when all you had was UNIX, and you used mh or mail or elm or pine to access e-mail, you could create a text file called “.plan.” Then, when anyone “fingered” you (similar, at least by metaphor, to the “poke” functionality in Facebook), they could see when you last logged in and what was written in your .plan file (and also your .project file).

If you were crafty, you’d run as a daemon “masterplan” which did a DNS lookup whenever someone fingered you (i.e., read your .plan file) and then tried to tell you what username fingered you and when. Masterplan ultimately died because of the number of DNS lookups it had to perform to determine your fingerer—it would take ages and bog down the system. (This was also possible back then because fingering was limited to user accounts on the same system. It wouldn’t work with the multiple servers and clients model of the current Internet.)

But the .plan and the .project had purpose: Really, what is your current “plan,” and what is the current, smaller “project” that you’re working on? It ultimately morphed into the “plan” being a quote from a song or some funny quip that communicated to the other semi-anonymous, obfuscated user (Who the hell is “97psh” or “burble chips”?) what your predilection of mood or drunkenness was at at the moment. It also worked because, unlike perhaps Twitter, you were *always* UNIX to read your e-mail. You couldn’t “background” the OS like you can close or background the Twitter Firefox window. It was more like your status while you were cruising around Facebook.

But just like .plan and .project had purpose, maybe Twitter or Facebook or Google Talk can have purpose as well.  It’s an area where you can tell people what you’re working on–and whether you are interruptable or not, in general, or for a specific purpose.

Working in a law firm, I keep track of my time by client/matter number. What if that client/matter topic was posted on a Twitter? Then when someone wants to contact me, say, by IM, they can mouse over my name and see that I’m working on a certain C/M. Then they can say, quietly to themselves, “Hey, I’m working on that right now, too, so maybe I should IM him now!” Or alternatively, “Eh, he’s working on something else, so maybe I won’t bug him now.” And then have an application—yet to be written—where it matches my Twittered C/M with every else’s Twittered C/M and shows me who else is working on my project at that time.

Great place for someone to build on Jabber for a law-firm specific IM system.

Just one of those things: I’m reading about Bougainville Province and their fight for autonomy from Papua New Guinea. Then I took a break to look up some Iron & Wine lyrics, for the song “Passing Afternoon.” The song goes, “She chose a yard to burn / But the ground remembers her / Wooden spoons, her children stir her bougainvillea blooms.”

Both the province and the creeping flowers were named after a French explorer, Louis Antoine de Bougainville. Bougainville dreamt of utopian paradise, away from civilization, free like the noble savages of the islands he explored.

The Iron & Wine song hauntingly takes to ask the story of a woman remembering her past loves, when life was free. Perhaps there is some hearkening back to the innocent utopia of Bougainville, as her “children stir her bougainvillea blooms” and she loses her wedding ring “somewhere near her misplaced jar of bougainvillea seeds.”

Bougainville Province, on the other hand, has less of an idyllic memory—what with war and revolution watering its recent history. Though there is irony in a Wikipedia quote where the Americans, while attacking Japanese troops in the province during WWII, left the enemy entrenched, “to whither on the vine” through starvation and disease. Perhaps on bougainvillea vines (though not native to Bougainville), or just listening non-stop to Iron & Wine (which didn’t exist during WWII).

Judge Nancy Gertner scathingly rebuked the FBI for its illegal and unjust activity in convicting four men for a murder they didn’t commit. The criminal charges were overturned six years ago; this is the civil side of the picture. Their appeals largely hinged upon the fact that a brutal hit-man turned FBI informant, Joey “the Animal” Barboza, framed them for the killing.

Unfortunately, two of the men, Tameleo and Greco, died in prison. The other two, Salvati and Limone, spent more than 30 years in prison.

Yes, I agree that the FBI should be punished for their blatant disregard for the law some 30 years ago. But I resent that these four men are portrayed as wronged “innocents.” They were all part of the Cosa Nostra gangland in Boston. They came in with dirty hands. Perhaps one or two of them were mere hangers-on, lowlife peons, but Tameleo was reputedly consigliere of the New England mob, and Limone was a Boston leader.

And, on a side note, the WBUR reporter, Fred Thys, is a graduate of my alma mater, Williams College. Hurrah!