Blawg Review #276
Every Monday, lawyers get together for Blawg Review and share some of the best law blog posts of the previous week or so.
Colin Samuels, Blawg Review Sherpa Emeritus, describes it best. "Where once we were isolated legal students, practitioners, and academics who could share our thoughts only with those in proximity, blogging and social media have turned us all into a kind of "other memory" for one another. The knowledge, experience, and insight we are able to access here, within our ever-expanding networks of colleagues and friends, colleagues-of-colleagues, friends-of-friends, is nothing short of amazing. By participating, we are able to give and receive and grow beyond ourselves while allowing others to grow as well. Thanks to our tools, these memories need not fade or become inaccessible, but we should always keep in mind that tools do not create — we do."
Blawg Review is often focused on a special theme more important than ourselves as lawyers, individuals, or corporations. A good example is Blawg Review #274 recently, where patent attorney Vincent LoTempio marked the 20th anniversary of the Americans With Disabilities Act.
We hosted Blawg Review #179 on Dia del Inventor, the equivalent in Argentina of National Inventors Day in the United States, where instead of commemorating Thomas Edison the day celebrates Laszlo Biro, the inventor of the ballpoint pen.
Last year, Tom Colson, the CEO of IP.com and father of three girls, hosted a special presentation of Blawg Review #217 on Father's Day. Today, we're pleased to host Blawg Review #276, the third time this blog carnival for everyone interested in law has been hosted on IP.com's blog, Securing Innovation.
Securing Innovation is not a law blog, or blawg, per se, but is the business blog of IP.com, a company that is familiar to the community of intellectual property lawyers, patent attorneys and in-house counsel of some of the world's most innovative companies. Topics on this blog are usually about Intellectual Property, patents, trademarks, copyright, trade secrets, and innovative technologies -- like this new T-Mobile Samsung Vibrant Android smartphone that comes preloaded with the full length movie Avatar.
Which brings us to the focus of this Blawg Review; not Intellectual Property but Indigenous Peoples. International Day of the World's Indigenous People.
"The theme of this year’s Day of the World’s Indigenous Peoples is indigenous filmmakers, who give us windows into their communities, cultures and history. Their work connects us to belief systems and philosophies; it captures both the daily life and the spirit of indigenous communities. As we celebrate these contributions, I call on Governments and civil society to fulfill their commitment to advancing the status of indigenous peoples everywhere."
The stated objectives of the United Nations with respect to Indigenous Peoples are:
- Promoting non-discrimination and inclusion of indigenous peoples in the design,implementation and evaluation of international, regional and national processes regarding laws, policies, resources, programmes and projects;
- Promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent;
- Redefining development policies that depart from a vision of equity and that are culturally appropriate, including respect for the cultural and linguistic diversity of indigenous peoples;
- Adopting targeted policies, programmes, projects and budgets for the development of indigenous peoples, including concrete benchmarks, and particular emphasis on indigenous women, children and youth;
- Developing strong monitoring mechanisms and enhancing accountability at the international, regional and particularly the national level, regarding the implementation of legal, policy and operational frameworks for the protection of indigenous peoples and the improvement of their lives.
“The Declaration is a visionary step towards addressing the human rights of indigenous peoples... I encourage Member States and indigenous peoples to come together in a spirit of mutual respect, and make use of the Declaration as the living document it is so that it has a real and positive effect throughout the world.” Secretary-General Ban Ki-moon
Stories and documentary films of the world's threatened indigenous tribal peoples are, perhaps because they're real, more relevant than Avatar but ultimately that movie may have a greater impact for the causes of indigenous peoples because of the way in which it tells the story.
Deliberations, the blog of the American Society of Trial Consultants (ASTC) tells a story of a trial, once upon a time, in a land far, far away.
The Wall Street Journal Law Blog reported this week, "The battle between oil giant Chevron and Ecuador’s government continues to rage. The parties were back in court on Thursday to discuss the latest item in their long-running dispute over environmental damages in the country’s Amazon region." For background and references to the movie "Crude" about this case, see this YouTube video of a Voice of America news report. In a blog post on Opinio Juris, Roger Alford reports that the "ongoing saga regarding Chevron’s legal travails in Ecuador took an interesting twist this week. As I reported earlier, Chevron has secured key outtakes of the movie Crude that appeared to show alarming collusion between the plaintiff lawyers and the Court-appointed expert." In another post on Opinio Juris, Roger Alford says one of the key arguments that the Ecuador plaintiffs are making in response to Chevron’s Motion is that the damaging quotes are being taken out of context. Without question, writes Alford, one of the most damning excerpts is when lead plaintiffs’ lawyer Steve Donziger is quoted as saying that “Because at the end of the day, this is all for the Court just a bunch of smoke and mirrors and bullshit. It really is.”
David Lat on Above the Law, perhaps the most widely-read legal blog, says the "biggest legal news story of the past week — even bigger than the confirmation of Elena Kagan, which was widely expected — was the ruling of Chief Judge Vaughn Walker (N.D. Cal.) in Perry v. Schwarzenegger. Judge Walker struck down California’s Proposition 8, a voter-passed ban on gay marriage, citing due process and equal protection grounds." ATL has uploaded a version of the decision in fully hyperlinked form, i.e., with links to the authorities cited by Judge Walker.
The ABA Journal reports that David Boies, one of the lead members of the legal team that challenged Proposition 8, in his keynote speech to the Opening Assembly of the 2010 ABA Annual Meeting in San Francisco called on lawyers to speak out against personal attacks on judges in controversial cases.
Scott Greenfield at Simple Justice tells the sad tale of the seduction of the American Bar Association.
Douglas Keene at The Jury Room writes about a curious case where a man (pretending to be a woman) entered suicide chat-rooms and gave suicidal people info on best means for suicide. He is now being charged with criminal activity and says he was the victim of a 'suicide chat room addiction'.
Michael Young at The IP ADR Blog enjoys Eating Pie and Trade Secret Theft - What's the Use?
IP maven Ron Coleman at Likelihood of Confusion kvetches about the mania for dubious “IP enforcement” by government agencies, like the FBI, that really should know better.
Eric Goldman at the Technology & Marketing Law Blog discusses the ECJ's favorable opinion in the Google cases, and Google's decision to liberalize its trademark policy in Europe.
Jeremy Phillips at IPKat says, "It's good to see that the courts, however busy they are, can still find some odd jobs for retired judges -- a sort of post-occupational therapy -- and the learned judge must have had a rare old time reminiscing over the musical icons of his own younger days."
Jeff Neuburger at the Proskauer New Media & Technology Law Blog examines the question "Who owns the firmware on a smartphone, the device manufacturer or the purchaser?"
Ben Sheffner at Copyrights and Campaigns reports that Eagles frontman Don Henley and his fellow songwriters Mike Campbell and Danny Kortchmar have settled their copyright suit against former GOP Senate candidate Chuck DeVore for an apology and payment of an undisclosed sum. In his interview with C&C, Henley said that his motivation for the lawsuit was not financial or political, but “simply a matter of my copyrights being violated by music being used in a way it was never intended to be used.” Apparently, copyright litigation was the last resort.
Peanut Butter & Jelly Follies; Who Is Your Lawyer?
Colin Samuels, in-house lawyer in a Bay Area technology company, reads law blogs, and blogs when he gets A Round Tuit at Infamy or Praise.
Joe Mullin at The Prior Art has an interview with Columbia Law School professor Eben Moglen on Bilski, software patents, and big pharma.
Intent generally is not required for patent infringement, a strict liability tort, writes Kevin Noonan at Patent Docs, who reports that pharma and software companies have filed a joint Amicus Brief in the Therasense case. It is only in "extraordinary situations," amici argue, that intent becomes an issue: for infringers when the allegation is for inducing infringement, and for patentees when the allegation is inequitable conduct. The brief argues that specific intent, defined as "[t]he intent to accomplish the precise act with which one has been charged" (reflecting the origins of the concept in criminal law) is the standard that a court should apply when establishing inequitable conduct. As reported last week on Patent Docs, The Intellectual Property Owners Association (IPO) also filed an amicus curiae brief last week in the Therasense, Inc. v. Becton, Dickinson & Co. case, in support of neither of the parties. The motivation for filing the brief is described as follows: "IPO submits this brief because of the frequency with which inequitable conduct issues arise in patent litigation and the resulting need for a clearly articulated and consistently applied standard for determining inequitable conduct." Dennis Crouch at PatentlyO has collected more thoughts from friends of the court.
Dennis Crouch at PatentlyO points to an important OP-ED by Judge Paul Michel and Hank Nothhaft (Tessera CEO) for the New York Times. They argue that an important way for the US government to stimulate entrepreneurship and job growth is by giving the USPTO a large bolus of money ($1 billion) to put its affairs in order.
Director's Forum: David Kappos' Public Blog has An Update on USPTO’s FY 2010 Spending Authority. Gene Quinn at IP Watchdog has an Interview Exclusive with USPTO Director David Kappos.
Patent Baristas has a blog post about a recent case where Eli Lily lost an appeal finding claims 2, 6, and 7 of U.S. Patent No. 5,464,826 invalid for obviousness-type double patenting over its earlier U.S. Patent No. 4,808,614.Stephen Albainy-Jenei explains: "The doctrine of double patenting is intended to prevent a patentee from obtaining an extension of a patent for the same invention or an obvious modification. The proscription against double patenting takes two forms: (1) statutory double patenting, which stems from 35 U.S.C. § 101 and prohibits a later patent from covering the same invention, i.e., identical subject matter, as an earlier patent, and (2) obviousness-type double patenting, which is a judicially created doctrine that prevents a later patent from covering a slight variation of an earlier patented invention.
Previously, on a subject that is of considerable importance to indigenous peoples, Patent Baristas reports that the USPTO recently gained access to the Traditional Knowledge Digital Library (TKDL)a database of non-patent literature and prior art developed by the government of India. This follows earlier reports at Spicy IP that the EPO had negotiated access to this knowledge. Arguments have been made by many, including Dr. Kalyan at SiNApSE, who think that the traditional knowledge digital library should be open and accessible to the world at large rather than limiting it to governmental patent offices.
Peter Black's Freedom to Differ waves goodbye to Google Wave.
Susan Crawford asks What next?
Since 1969, the ‘developed’ world’s attitude to tribal peoples has changed beyond recognition. Then, it was assumed that they would either die out or be assimilated; now, at least in some places, their experience and values are considered important. Survival has pushed tribal issues into the political and cultural mainstream. This, perhaps, is our greatest achievement of all, but there are many barriers of racism, tyranny and greed which we must still overcome..
Amnesty International USA says, "The Obama Administration has agreed to review the U.S. position on the UN Declaration on the Rights of Indigenous Peoples, which sets forth the “minimum standards for the survival, dignity, and well-being of the Indigenous peoples of the world.” Of the 143 member states who adopted the Declaration at the UN General Assembly in 2007, the U.S. was one of only four member states who voted against it. We now have a critical opportunity to encourage the Administration to adopt the Declaration and ensure the rights and dignity of our Indigenous communities around the world, including here at home!"
Gordon Smith at the Conglomerate mentions the feel-good business story of the week: The Giving Pledge.
Blawg Review has information about next week's host, R. David Donoghue at the Chicago IP Litigation Law Blog, and instructions how to get your blog posts reviewed in upcoming issues of this carnival of law blogs.
