SUPREME COURT ORDERS TRIAL BY COMBAT
TO DECIDE IP CASES!
In a breathtaking development, breaking with two centuries of intellectual property law, the Supreme Court by a 7-1 vote summarily decreed that all patent, copyright and trademark lawsuits will hereafter be resolved through trial by combat. In the majority opinion, Justice Alito summed up the Court’s reasoning succinctly: “We’re sick and tired of handling this s***.”
The concurring opinion of Justice Clarence Thomas was a bit more illuminating. “I concur. Patent cases are hard.” Equally to the point, in the lone dissenting opinion Justice Ginsburg lectured the Court. “Lawsuits should continue as before. Facts matter. Law matters. S*** happens.”
Look, I get it. In the last three years, the Supreme Court has overruled the “unruly” patent appellate court (the Federal Circuit Court of Appeals) ten out of thirteen times. A three-judge panel made up of the Three Stooges would do better. Throwing darts, drunk.
At first, I was delighted. Employing cutting sarcasm and a rapier wit, I thought myself well-armed. But in double-checking, I see the Court had broken bones more in mind that scathing words. So, we lawyers all have to regroup.
First off, it’s time to hire, but not like before. I’ll have to address the war elephant in the office straight off in future interviews.
“Well, Ms. Chan, I see you graduated from Stanford Law School in the top of your class and have already won two trials in your first three years out of school. You’ll find our health and life insurance package is exceedingly generous. And we contribute to your 401k if you survive…if you stay…with us over three years. But tell me, any experience with a Valyrian broadsword?”
Of course, I’m approaching this far too simplistically. Until now, only we patent litigators could handle patent litigation. Trial by combat will radically change that: knowledge of unintelligible law and wrestling with technical facts is so 2016. Now, even a probate attorney could take up arms.
Next, I will have to school my fledgling combatants on the finer art of initial confrontation. First and foremost, as Harvey in the Butch Cassidy movie said, when Butch wanted to discuss the rules for their knife fight, “There are no rules in a ...OOF!” Treachery is good. First is better.
Contingency fee arrangements will need to take a turn as well, as we thin out the lawyer herd. “Mr. Stempott, I’ll be happy to take your case. If we win, we get one-half (of the money, not of the body)….Yes, I know it’s a lot, but if we lose, Ms. Chan dies. You have no idea how difficult it is for us employers these days.”
*See article “§ -- The Lawyer Formerly Known as ‘Payne’,” below.
BUT §ERIOUSLY, IP NEW§ YOU CAN USE:
SUPREME COURT ASKED TO TAKE TRADEMARK CASE ON RACIALLY DISPARAGING MARK. The Patent and Trademark Office has petitioned the Supreme Court to accept a First Amendment case involving registration of a trademark which is allegedly disparaging. Section 1052(a) of the Lanham Act prohibits registration of “matter which may disparage” persons or “bring them into contempt.” However, the Court of Appeals for the Federal Circuit ruled that this provision violated the First Amendment, in connection with an Asian-American rock band which sought to register their mark “The Slants.” See commentary.
SUPREME COURT HEARS ARGUMENTS ON PATENT ENHANCED DAMAGES. The Supreme Court is also considering the standard for enhanced damages. In the 2007 Seagate case, the Federal Circuit Court of Appeals established a “rigid” standard for willful infringement and potential trebling of damages. The standard allowed enhanced damages if the infringer “acted despite an objectively high likelihood” that it was infringing a valid patent, if, as a second prong, the infringer knew/should have known that it was infringing. See commentary.
FEDERAL TRADE SECRETS STATUTE ENACTED. The House and Senate have passed the first federal trade secrets act. Long the province of various state-originated rights, for the first time a federal statutory claim is possible. Proponents claim this Act will streamline multi-state disputes. However, California trade secret litigants benefit from well-developed case law, even for parties from more than one state. One doctrine eliminated – which did not exist in California – is the inevitable disclosure doctrine. See commentary.
AND NEWS ABOUT US:
BOB PAYNE TO SPEAK ON TRADEMARK REMEDIES IN STRAFFORD WEBINAR, MAY 11. Bob Payne will team up with attorney Bradley Walz in a Strafford Publications webinar on “Trademark Infringement Remedies: Overcoming the Challenges of Inconsistent Court Treatments to Protect IP Rights.”
PAYNE TO SPEAK AT STATE BAR 3-DAY SOLO AND SMALL FIRM SUMMIT. Robert Payne will make a presentation on “Spotting Hidden Intellectual Property in Your Practice” at the State Bar’s Summit in Newport Beach, on June 18. Not all intellectual property comes with a label stamped on it. Business litigators, estate planners, employment lawyers, corporate counsel and family lawyers will all benefit from learning how to spot intellectual property assets and issues that lie just beneath the surface.
BOB NAMED A “SUPER LAWYER” FOR NORTHERN CALIFORNIA FOR 7TH YEAR. Robert Payne was named a Northern California “Super Lawyer” for a seventh year. According to its website, Super Lawyers is an independent rating service of outstanding lawyers in 70 practice areas who have attained a high degree of peer recognition and professional achievement. Payne has also been a Martindale-Hubbell av-rated (top rating) attorney for twenty-five years.
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YOU’RE ALWAYS GOING TO GET SOME “HOP-ONS”
Among my under 250,000 subscribers, alert readers have resonated with my § name.* Naturally, its pronunciation leads into some of the best scenes from the cultish TV series “Arrested Development.”
Most intellectual property litigators learn their craft through years of toil in lawsuit trenches. But for me, all the lessons of decades of IP litigation are there to de-germ, right from the scripts of this insightful series. As it may come back for a fifth season, it’s time to review.
“You’re always going to get some hop-ons.” The responsible son, Michael, drives around town in a car with a rear stair extending over the cab. It constantly attracts errant free-riders. As does valuable IP. Copy cats are infringers – of patents, trademarks, trade secrets and copyrights. Imitation is the severest form of effrontery. It never ends; there will always be hop-ons to your IP stair car.
“I think something laid eggs on me.” Lawyer Barry Zuckerkorn (Henry Winkler) always seemed to care most about his own petty skin and other problems, if not his billable hours. You can avoid this in hiring your lawyer, with your opening question. Don’t hesitate to ask, “As of now, are you rash free?” Don’t worry. I get this question all the time. It’s well-known code in lawyerland for: “Will you be there for me?” So, go ahead. Trust me.
“All right?!?” C’mon! The Literal Doctor advised the Bluth family at the hospital that Buster would be “all right.” Bemused by their visible relief, he clarified that Buster had lost his left hand to a marauding seal and was now “all” right. Now, misleading through “truth” is a high art form, like claiming to have under 250,000 subscribers. It’s best left to us professionals.
“And you can say goodbye to these [flashing], because it’s the last time!” Long-time secretary of Michael’s father would confront Michael, ending each exchange by flashing her breasts “for the last time.” Again and again. It’s just like opposing counsel making a “final” offer of settlement. “Take it, or we walk,” they always say. Yeah, yeah. It’s never true. Except when it isn’t never true.
“Has anyone in this family ever seen a chicken??” Michael’s family plagued him with clucking “chicken” taunts for lacking nerve. But they didn’t act or sound like any chicken you’d recognize. Moral: don’t get a cut-rate lawyer. She may not have seen a patent chicken like yours. Maybe she never knew – would self-blued Tobias say “she never knewed”? -- one. Maybe she has only fed trademark tree sparrows or read about cybersquatting rock pigeons. Experienced IP litigators have both raised and carved up the whole chicken, from gizzard to talon. We speak chicken.™
A combined analyst and therapist. This joke, you either remember, or you’ll have to comb through all 68 episodes to find for yourself. Let’s just say an experienced litigator both skillfully questions the opponent’s arguments and counsels clients sagely – serving as an effective “questellor,” if you will.
“There’s always money in the banana stand.” For years I thought this was the father’s reassurance that he had an offshore bank account in some former Soviet republic. In Central America probably. We intellectual property lawyers know that IP rights in trademarks, trade secrets and patents are incredibly valuable. But they can go up in flames if the owners don’t want to protect them against hoppers.
“And that’s why you always leave a note.” George, Sr.’s one-armed ex-employee would feign horrible accidents to teach the young Bluth kids not so “important” life lessons, like leaving notes when the milk runs low. Law school was like that. Come to think about it, so was traffic school. (Pop quiz for fanatics – what was the employee’s name?)
“I’ve made a huge mistake.” Well, that’s something G.O.B. always wound up saying, but you’ll never hear that from me. I watched all four seasons.
*See article “§ -- The Lawyer Formerly Known as ‘Payne’” , below.
§EE BELOW FOR FAVORITE PAST HUMOR ARTICLES
§ -- THE LAWYER, FORMERLY KNOWN AS “PAYNE”
Having written and edited IP humor over 18 years, I take pride in launching this new IP humor and news blog. (Some of you may remember receiving the lgp@law newsletter over the years, which I published when I was a partner at the Monterey IP law firm of LaRiviere, Grubman & Payne.) This resurrection calls for a profound personal transformation as well. Following the inspiring example of the former Artist, Formerly Known as Prince, I have shed my former name. From now on, I shall only go by “§.”
Not all will accept my decision, I know. Clients, judges will just have to adapt. A potential client calls, requesting Robert Payne? I slam down the phone. Judge asking, “What do you have to say to that, Mr. Payne?” I turn my back, with a dismissive hand flourish. It’s important to be firm. However else will they learn?
And, yes, I know , it is utterly unpronounceable. A mere trifle. The best I can suggest is you put body as well as voice into it. Turn your head upward and to the right, shoot your right index finger up to the sky and shrilly cry out in falsetto voice, “Ca-Ca′!” If you’ve ever watched Gob (“Jobe”) mock Michael in the Arrested Development TV series, you know what I’m saying.
About “Ca-Ca′!”: The emphasis is on the second “ca′.” I must be quite strict on this point. Either way, though, I must say, it never fails to get complete attention in court. I suggest you practice in front of the mirror before your next call with me.
One thing I’ve prepared for is victory in court. Before, it was the traditional, gracious hand shake with opposing counsel. No more. Zorro has nothing on me. True, I can’t very well slash clothes with a ball point pen (personal space and all). So, I’ll just have to cast a smug glance at my opponent and “air scribble” my “§”. Sure, a casual observer might assume I’m suffering from an acute nervous disorder, if I don’t act with clear intention. So I will have to scribble with panache.
After all, I have a §erious reputation to protect.
OUR PAST ARTICLES
Robert Payne has written IP humor for 18 years. He also wrote a humor column for the local newspaper, just for fun. Here are some samples. Hope you enjoy!
Save Our Planet
The Dude Abides
Rock, Paper, Scissors, Lizard, Spock
Why Did IBM Skip the Loo?
ABOUT “§ TO WIT”
§ TO WIT is a blog about IP humor and about IP “news you can use.” What does “To Wit” mean? In formal, legal language, it means “namely,” to clarify and specify. “The indictment charged that Jones knowingly possessed a firearm, to wit: a .38 caliber revolver.” But for us, it’s a salute, well, "to wit." (Pop Quiz: Did we use “To Wit” as a double entendre, a triple entendre or quadruple entendre? Answer: Who cares?)
But we’re more than just fun and games. We also will post articles on IP issues of interest to smaller businesses — for business owners and their general counsel. The articles will be written in plain English and short. Very short. Rather than rewrite what others have said, we'll generally link to a longer article or original source for those who want to know more.