"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Thursday, April 28, 2016

Inter Partes Patent Act Provisions Under Review in Supreme Court Oral Argument re Cuozzo Speed Technologies v. Lee

Ronald Mann at SCOTUSblog has oral argument analysis of
Cuozzo Speed Technologies v. Lee at
Justices struggle to read “tea leaves” in Congress’s slipshod drafting
of Patent Act provisions for inter partes review
.

Is a statutory reading conforming to considerations raised by U.S. Supreme Court Justice Stephen Breyer in a quote of Breyer by Mann going to be the decision in this case? See here.

Based upon our many postings over the last 10 years criticizing the vast over-reaching of patent claims and the massive over-issuance of patents per se in our technological era, we would of course favor a statutory interpretation that permits as much invalidation of past patents as possible AND that ALSO results in a strong reduction in the number of new patents to be issued in the future: i.e. a "results-oriented" decision, both retroactively as well as prospectively, might be one way to look at Congressional intention.

One could indeed argue that "who", as a practical matter, whether courts or quasi-courts, does the above -- seriously necessary -- "patent reform" implementation, may not be as important, as that it be done.

Is the current process therefore "chilling"? It appears to us that legitimate inventors of legitimate inventions will continue to apply for patents for their discoveries, regardless of the now challenged inter pares patent review.

Monday, April 18, 2016

Modern Attorney Advertising Since Bates v. State Bar of Arizona (or) How Far Have Things Come in the Virtually Monastic (Medieval Origin) Legal Profession?

Victor Li at the ABA Journal reports from the seventh annual Avvo Lawyernomics conference that Lawyers should be big, brave and bold in their advertising efforts, at least as based on two keynote speeches by Scott Stratten, president at Un-Marketing, and Ann Handley, chief content officer of MarketingProfs. It was Handley who specifically "encouraged lawyers to be 'bigger, braver and bolder' when creating content for marketing purposes".

Big, Brave & Bold? It could be a law firm name. Surely the speakers Stratten and Handley are right in urging more courage, but how far has lawyer advertising actually moved since the 1977 U.S. Supreme Court Decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and why not further.

Bates v. State Bar of Arizona was our favorite case to teach law students legal analysis in the days when we were FFA Lecturer in Anglo-American Law, Legal Research and Legal Writing at the University of Trier Law School.

Legal issues relating to attorney advertising illuminate the legal profession better than perhaps any other parameter, and it is perhaps significant that very little substantive progress has been made on this score in 40 years.
 
State bar associations in the USA rely upon the ABA (American Bar Association) Model Rules of Professional Conduct for basic guidelines, but each State bar brews its own cauldron of regulations in exercising local monopoly powers over its members. Attorneys are kept on a tight rein. Why is that so?

The profession of law retains many similarities to a monastic order. See James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts, University of Chicago Press, 2008 [reviewed at forum historiae iuris by Mark R. Munzinger]; Amelia J. Uelmen, A View of the Legal Profession From a Mid-twelfth-century Monastery, 71 Fordham L. Rev. 1517 (2003). Available at: http://ir.lawnet.fordham.edu/flr/vol71/iss4/11; James A. Brundage, The Ethics of the Legal Profession: Medieval Canonists and Their Clients, 33 Jurist 237, 237 (1973).

Munzinger in his above cited review summarizes Brundage's main thesis:
"Brundage defines professionalization, in its strictest sense, as much more than the acquisition of the skills necessary to making a living in a given occupation. Rather, a true professional has studied and mastered a body of esoteric knowledge, an accomplishment that confers a degree of prestige; the occupational application of that knowledge is not only useful, but purports to promote the interests of the whole community; the professional has pledged to uphold an ethical standard different and more demanding than ordinary community norms require. These criteria lie at the base of Brundage’s thesis and provide the framework for his account of the development of the medieval legal profession.
...
Although Professor Brundage modestly deems his book a provisional account to be modified by further research, Medieval Origins is nothing less than the magnum opus of a master scholar. As such, it lays the foundation and sets the standard for future work on the subject. Medieval Origins of the Legal Profession not only delivers on its title, but is much more besides. Every medievalist, legal historian, and lawyer interested in the history of his or her profession should have a copy on their shelves."
At the ABA website page on Professionalism & Ethics in Lawyer Advertising we find under Latest Developments an update from January 1, 2016 in the form of a .pdf about Differences between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct, plus links to Court Rulings, Reports and still other Links.

The .pdf cited above writes in addition: "For links to all state ethics rules (including advertising rules), go to" ... Links of Interest at
http://www.americanbar.org/groups/professional_responsibility/resources/links_of_interest.html, an online page which then takes us to more Links to Other Legal Ethics and Professional Responsibility Pages.

Those links include
  • Nationwide links 
  • Links relating to Individual States of the United States each state, plus
  • Foreign Rules of Professional Conduct (Australia, Canada, United Kingdom, and Other Countries) 
  • Links to Law Schools involved with Law and Ethics
  • Additional American Bar Association Ethics and Professional Responsibility Resources 
  • National Organizations dealing with legal ethics and professional responsibility
  • Journals dealing with the Legal Profession and Ethics, and
  • Other Links
Whoever reads the U.S. Supreme Court decision in Bates v. Arizona and then compares the holding in that case with various current State bar rules and regulations will quickly see that the bar associations utilize their monopoly powers just as effectively now as nearly 40 years ago in keeping their membership under a strong virtually monastic regime of discipline, also as regards attorney advertising.
 __________

A bit off topic, but we might add here for those interested in the historically, militarily and politically critical corridor between the Baltic Sea and Black Sea, which remains a hot spot in our modern political world today, that Munzinger, cited above, also has written some interesting material about that:

Mark R. Munzinger, The Profits of the Cross: Merchant Involvement in the Baltic Crusade (c. 1180-1230), Journal of Medieval History 32 (2006), 163-85., cited in Alan V. Murray, editor, The Clash of Cultures on the Medieval Baltic Frontier, Routledge & Taylor Francis Ltd, United Kingdom (2009), Ashgate Publishing Ltd., Farnham, Surrey UK and Burlington, VT, USA.


"Above the Law" Blog Bans Comments: LawPundit Drew the Same Conclusion Years Ago

Debra Cassens Weiss at the ABA Journal reports that
Plagued by 'often offensive' comments, Above the Law bans them all.

LawPundit made that same experience already years ago, as have surely many other blogs and websites.

When people are able to post anonymously under aliases, many apparently no longer feel constrained by the finely set but unwritten rules of normal social dialogue, and things get out of hand quickly, leading to flame wars or comparable uncivilized discourse.

In those wars, commenting on the "substance" of things becomes secondary to what is in effect a textual "battle" for a given position in the commenting pecking order, thus reflecting the combative mentality of many blog posters. Mankind is a competitive being, and, without constraints, is on the warpath.

Of course, the fact of having online venues where would-be text-writing warriors can establish their place and prove their worth is perhaps a socially useful thing, but it wreaks havoc on serious blogs.

We found only two solutions to the problem: the first solution is to moderate all comments rigorously, which quickly proves to be a time-intensive waste of time, and the second solution is to dispense with comments altogether, which has the disadvantage that it can reduce the number of total readers and may even antagonize some of the most dedicated blog aficionados, who find themselves "chilled" by not being able to express their thoughts.

Well, that is why there are so many lawyers in real life. Things are difficult enough when there ARE laws, rules and regulations to uphold, and that can be enforced. In their absence, things become an inglorious free-for-all.


Saturday, April 16, 2016

New European Union (EU) Data Protection Rules Governing Police Cooperation and Citizens' Digital Rights Passed by the European Parliament as the General Data Protection Regulation (GDPR)

We reproduce here a press release from the European Union Parliament on new rules regarding digital rights, the General Data Protection Regulation (GDPR)  ["REGULATION (EU) 2016/… OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ... of ... on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)"]

European Parliament PLENARY SESSION Press Release of April 14, 2016
Police cooperation / Citizens' rights / Justice and home afairs

"Data protection reform - Parliament approves new rules fit for the digital era


New EU data protection rules which aim to give citizens back control of their personal data and create a high, uniform level of data protection across the EU fit for the digital era was ["were", sic] given their final approval by MEPs on Thursday. The reform also sets minimum standards on use of data for policing and judicial purposes.

Parliament’s vote ends more than four years of work on a complete overhaul of EU data protection rules. The reform will replace the current data protection directive, dating back to 1995 when the internet was still in its infancy, with a general regulation designed to give citizens more control over their own private information in a digitised world of smartphones, social media, internet banking and global transfers.

"The general data protection regulation makes a high, uniform level of data protection throughout the EU a reality. This is a great success for the European Parliament and a fierce European 'yes' to strong consumer rights and competition in the digital age. Citizens will be able to decide for themselves which personal information they want to share", said Jan Philipp Albrecht (Greens, DE), who steered the legislation through Parliament.

"The regulation will also create clarity for businesses by establishing a single law across the EU. The new law creates confidence, legal certainty and fairer competition", he added.

The new rules include provisions on:
  • a right to be forgotten,
  • "clear and affirmative consent" to the processing of private data by the person concerned,
  • a right to transfer your data to another service provider,
  • the right to know when your data has been hacked,
  • ensuring that privacy policies are explained in clear and understandable language, and
  • stronger enforcement and fines up to 4% of firms' total worldwide annual turnover, as a deterrent to breaking the rules.
New rules on data transfers to ensure smoother police cooperation

The data protection package also includes a directive on data transfers for policing and judicial purposes. It will apply to data transfers across borders within the EU as well as, for the first time, setting minimum standards for data processing for policing purposes within each member state.

The new rules aim to protect individuals, whether victims, criminals or witnesses, by setting out clear rights and limitations on data transfers for the purpose of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including safeguarding against and preventing threats to public security, while at the same time facilitating smoother and more effective cooperation among law enforcement authorities.

"The main problem concerning terrorist attacks and other transnational crimes is that member states’ law enforcement authorities are reluctant to exchange valuable information", said Parliament's lead MEP on the directive Marju Lauristin (S&D, ET)."By setting European standards for information exchange between law enforcement authorities, the data protection directive will become a powerful and useful tool which will help authorities transfer personal data easily and efficiently, at the same time respecting the fundamental right to privacy", she concluded.

More details on the general data protection regulation and the directive in our Q&A here.

Next steps

The regulation will enter into force 20 days after its publication in the EU Official Journal. Its provisions will be directly applicable in all member states two years after this date.

Member states will have two years to transpose the provisions of the directive into national law.

Due to UK and Ireland's special status regarding justice and home affairs legislation, the directive's provisions will only apply in these countries to a limited extent.

Denmark will be able to decide within six months after the final adoption of the directive whether it wants to implement it in its national law.

REF.: 20160407IPR21776
Updated: 14-04-2016 - 16:23"
[this is the snipped end of the press release and what follows is EU Pundit text]

Contact for the press release: Rikke Uldall at the European Parliament Press Service ... please go to this link: the EU original page of the press release.

The European Data Protection Supervisor (EDPS) has a posting about this new Directive at One giant leap for digital rights.

Crossposted at EUPundit.


Saturday, April 09, 2016

Blazing Fast 5G Networks Will Require Bigger and Better Cloud Infrastructure

5G networks, expected already as early as 2020, will need bigger and better cloud infrastructure. Jim Lyons of NetAppVoice has the story at Forbes in Fast 5G Networks Will Require Flashy Clouds.

Hat tip to CaryGEE.

Saturday, April 02, 2016

Announced Changes in Associated Press Stylebook Use Lowercase internet & web to Replace Capitalized Internet & Web Starting June 1, 2016: What About the Spellcheckers!!??

In what web of deceit did you find yourself in yesterday?
This not an April 1 story. We checked the APStylebook at Twitter.

What is really IMPORTANT news?

Changes that we will be living with for years appear to us to fall in this category of importance.

Hence, we thus call attention to Henry Pickavet's piece at TechCrunch on the Associated Press (AP) Stylebook announcement that 'Internet' is to be spelled "internet" (in AP reports and in other sources relying on the Stylebook) as of June 1, 2016, i.e. the heretofore capitalized term "Internet" is to be demoted to a lower case existence in the spelling "internet". The same is to happen to the "Web" of the World Wide Web, which is being downgraded to "web".

For background, see the Wikipedia at Capitalization of "Internet" and Internet.

Living in Germany, we can not fully support the AP in these decisions.

The order-loving Germans know what is important and capitalize ALL nouns. Hence the "Web" and the "Internet" will remain capitalized in Germany.

We presume Microsoft's "Internet Explorer" will remain as is.

We are not sure that reducing capitalized words of meaning to the same level as their original generic term will in any way be helpful to understanding.

Indeed, my Blogger spell-checker has "Internet" as correct so that any lowercase "internet" comes up as a spelling error, and, you know what,
Microsoft Word in its most recent edition also marks "internet" as a spelling error. So the effect of the AP change is more work for us, with NO BENEFIT!!

Dear folks at AP, what foolishness have thou wrought!!??

P.S. Oh Well, I suppose we could just as well write associated press, ap, and stylebook in the future. Does it make a difference?

Friday, April 01, 2016

Quo Vadis Legal Profession? Highly Educated Candidates Enjoy Competitive Advantages in the Legal Services Job Market

Quo vadis legal profession and legal services?

At the New York Times,
Seton Hall Law Prof Michael Simkovic
concludes in his article,
Overall Stagnation in Legal Jobs Hides Underlying Shifts,
that highly educated job candidates in legal services
enjoy a market that is expanding, rather than contracting,
and that this trend marks the economy as a whole.

ABCs of Google Alphabet Transition Difficult

At Wired, Jessi Hempel reports after the first six months that Google’s Alphabet Transition Has Been Tougher Than A-B-C.