The IP ADR Blog

Changing Copyright Law for the Better with Larry Lessig

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 13 Oct 2008 05:37:09 -0800

Can a law professor be a lawyer's hero? I have just two words for you: Larry Lessig.

See Peter Black's Freedom to Differ post today on Lessig's WSJ editorial on changing copyright law for the better and for the good.

Just one of several suggestions below.

Deregulate "the copy": Copyright law is triggered every time there is a copy. In the digital age, where every use of a creative work produces a "copy," that makes as much sense as regulating breathing. The law should also give up its obsession with "the copy," and focus instead on uses -- like public distributions of copyrighted work -- that connect directly to the economic incentive copyright law was intended to foster.

Speaking of change .... what was the prevailing dispute resolution technology when Columbus sailed the ocean blue in 1492?

In England, trial by jury!

What's the prevailing dispute resolution technology today when we celebrate Columbus Day* more than 500 years later?

Trial by jury!

So I was just wondering ....... whether we might be able to convince Lessig to head up the LegalTED Conference Steering Committee for 2009. I'd like to sign Bruce McEwen of Adam Smith, Esq. for the Steering Committee as well, for his unbelievably great analysis of the Heller collapse (which I observed up close and personal) and for this:

Are, then, the 19th-Century notions of "conflicts" a barrier to globalizing and consolidating law firms? If you want my view, it's that clients seek concentrated--not dispersed--expertise, and that deep and long-standing industry knowledge is precisely where competitive advantage comes from. This stands "conflicts" on its head, and says that clients seek depth, not shallowness.

As well as for noting that, um, clients are adults!

From Clients are Extraordinarily Understanding (h/t to Diane Levin's brilliant and comprehensive Blawg Review # 181 here)

_________________

* Click here for the counter-narrative.

Musicians Outside the (i)Pod from IP KAT

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 12 Oct 2008 13:12:02 -0800

See what IPKAT's talking about when it notes its fascination with the music industry's efforts to "develop new business models" in its post on the formation of the Featured Artists Coalition. IPKAT comment below. What excites the KAT at the link above.

The IPKat is fascinated by the continued efforts made on all sides of the music industry to develop new business models and feels that it's clearly apparent that there are almost as many potential business models as there are business interests -- this seems to herald the end of any "one size fits all" model. Yet there's safety in numbers, which means that even big name artists need to organise within groupings such as the FCA.

Following Radiohead Good Mag Offers "Pay What You Want"

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 12 Oct 2008 05:48:05 -0800

... and agrees to donate it to the charity of your choice.

It's GOOD!

h/t Freakonomics here.

Sharing Paris iPhone photos - this at Le Cimetière du Père-Lachaise

Sedona Discovery Cooperation Proclamation

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 07 Oct 2008 08:18:50 -0800

Thanks to the recent Twitter entry of R. David Donoghue -- "follow" him here -- of the Chicago IP Litigation Blog, we here at the IP ADR Blog can bring you the Sedona Discovery Cooperation Proclamation.

Since I'm in Paris and David promises to post a piece on this in his blog tomorrow, I'll leave the commentary to him. Here's the 3-page manifesto and below the introduction.

(left, Donoghue, standing up for reason and client-satisfaction).

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.

With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

The 21st Century: It's All About Collaboration: Pick Up the Lawyers' Guide Today

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 04 Oct 2008 13:44:59 -0800

The Lawyers' Guide to Collaboration Tools and Technologies

Say goodby to quill pens and obstreperous adversarial posturing. Join authors Dennis Kennedy and Tom Mighell in learning "Smart Ways to Work Together" in their Lawyer's Guide to Collaboration Tools and Technologies.

If you're practicing intellectual property law (why else would you be reading this blog) you know that technology is moving faster than the speed of the law and that your own practice is often moving faster than any human being possibly could. What can Dennis Kennedy and Tom Mighell help you do about it? Here's what their new book's ABA blurb says it has in store for all of us:

This first-of-its-kind guide for the legal profession shows you how to use standard technology you already have and the latest "Web 2.0" resources and other tech tools, like Google Docs, Microsoft Office and SharePoint, and Adobe Acrobat, to work more effectively on projects with colleagues, clients, co-counsel and even opposing counsel. In The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together, well-known legal technology authorities Dennis Kennedy and Tom Mighell provides a wealth of information useful to lawyers who are just beginning to try these tools, as well as tips and techniques for those lawyers with intermediate and advanced collaboration experience.

Collaboration technologies and tools are the most important current developments in legal technology and are likely to remain so for the foreseeable future. Explained with minimal technical jargon, the book focuses on highly practical and usable ideas that you can put to work straight away.

With practical advice on how to use specific tools and concrete action steps to take, lawyers and law firms at all levels will benefit from working together better.

You'll learn:

* The basics of collaboration and collaboration tools

* How to select and implement tools and strategies

* The best ways to collaborate on documents, cases, transactions, and projects

* How to collaborate inside and outside the office

* How to collaborate using tools you already have or own

Technology now makes it easier than ever to work with others -- this is the first guide dedicated to the special requirements of the legal world with the practical steps it takes to do it right.

Far too often attorneys come to mediations and settlement conferences meeting one another for the very first time. They have demonized one another, transmitted the satanic nature of the adversary to their clients -- who had already branded the opposition as cousin to the Bin Ladens -- and hope to work out a "deal" sufficiently satisfying to the parties that the clients are happy with the lawyers.

You'll litigate and settle all of your complex IP litigation far more quickly and efficiently with an attitude of collaboration and tools of cooperation. The litigation will be less acrimonious and less expensive, making it far less likely that your clients will choose you as the next target of the lingering sense of injustice they have after some dimwit mediator splits the baby in half and hammers them to reluctantly accept a bad deal as the only alternative to an expensive and risky trial.

I can't express the value of Kennedy's and Mighell's book any better than did Patrick J. McKenna, author of Herding Cats, First Among Equals, and First 100 Days: Transitioning A New Managing Partner.

There is an old adage that one can either work hard or work smart . . . you have a choice. And we would all choose working smart, but once having made that obvious decision, you then have to figure out how.

The good news is that Kennedy and Mighell have now produced the most comprehensive playbook, whether you are a solo, large law firm practitioner or working within a legal department, for how to choose and use the right technology tools to 'smartly' collaborate.

And for those who know that collaboration is a profoundly human endeavor, the authors identify all kinds of practical and cultural issues to watch for. This is one of those few texts that will be dog-eared throughout, for continued reference."

If you're still not convinced, here's the first chapter courtesy of the Kennedy, Mighell and the ABA.

Buy it. Read it. Catch your practice and your life up with the 21st Century. Thrive.

Blawg Review #179 Celebrates the Invention of the Ballpoint Pen

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 29 Sep 2008 13:07:10 -0800

I remember the first time I laid my hands on a BIC pen. I was in junior high school and the kids down the street seemed to have stumbled over a treasure trove of them. They were . . . well . . . simply beautiful . . . as was the way they glided across the Windex-blue lined paper populating my denim-covered school binder. (yes, I stole "Windex-blue" from the L.A. Times article on Paul Newman's recent lamented death).

Who knew I was just beginning to develop an actual aesthetic (see MOMA collection here).

Today, Securing Innovation celebrates the invention of the ballpoint pen in Blawg Review #179 here.

SI is one of the best IP blogs to appear on the scene in some time and I don't link to it nearly enough. With Blawg Review #179 I'm hoping that S.I. will begin to get the readership it deserves -- like -- a MILLION unique hits a year -- that's how essential it is to the IP practitioner.

Today, check out the great links SI organized under the following topics: Intellectual Property News and Opinion; Patents; Trade Secrets; Trademarks; Cyberlaw and the all important miscellaneous, entitled appropriately to the ballpoint pen topic, P.S.

Finally, the all-important reminder:

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Of particular interest to everyone interested in Intellectual Property law and policy might be the November 10th presentation of Blawg Review #185 by Global Intellectual Property Strategist Duncan Bucknell at his indispensible IP Think Tank weblog.

Of course, all those neat papers purchased in September were torn and crammed into my Pee Chee folder by the end of the term. Someday, an ode to the Pee Chee.

This one from Studionebula.com.

It's Time for a LegalTED When IBM Wants a Patent on No Patents

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 29 Sep 2008 08:58:15 -0800

Why LegalTED? Because we're using 18th Century dispute resolution technology to solve 21st Century conflicts. Because we're all scratching our heads over items like the one below from SlashDot -- IBM Wants a Patent on Finding Areas Lacking Patents posting them, and then going on with our business days as if there weren't anything we could do about it -- waiting for Congress, for instance, to solve a problem that rests in our own hands.

"It sounds like a goof — especially coming from a company that pledged to raise the bar on patent quality — but the USPTO last week disclosed that IBM is seeking a patent for Methodologies and Analytics Tools for Identifying White Space Opportunities in a Given Industry, which Big Blue explains allows one 'to maximize the value of its IP by investigating and identifying areas of relevant patent 'white space' in an industry, where white space is a term generally used to designate one or more technical fields in which little or no IP may exist,' and filling those voids with the creation of additional IP."

I'm back from the State Bar Convention, in Monterey, no less, and not a single lawyer I spoke to had ever even heard of the TED Conference (except my good friend Lilys McCoy for whom I imagine I've now irrevocably disqualified myself as her mediator).

And this just in from How Appealing, a link to the New York Times article on copyrighting the law, except below and link to the NYT article, Who Owns the Law? Arguments May Ensue

IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society.

Carl Malamud runs PublicResource.org, which provides the text of statutes, court decisions and construction codes at no charge.

Well, it is still a bit of a head-scratcher. Let me try to explain.

To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.

Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.

“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”

And this (copyrighting tatoos) from AvvoBlog today (another NYT article here).

So what do I mean when I say LegalTED?

This is the kind of thinking I'm talking about -- Howard Rheingold on Collaboration.

So the first question (other than who will be on the Steering Committee besides the few passionate advocates of transformation I've already spoken to) is this: WHAT IS THE QUESTION?

Blawg Review # 179 Secures Innovation Tomorrow Morning

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 28 Sep 2008 09:52:09 -0800

Great way to start your IP week -- check out Blawg Review #179 at Securing Innovation tomorrow morning. Preview here.

Looking forward to it!

As Bratz/Mattel Mediator Speaks, Mike Young Wonders If It's Too Much

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 24 Sep 2008 20:05:45 -0800

In Friday's Daily Journal, mediator and former U.S. ambassador Pierre-Richard Prosper talks about his efforts to help the Bratz/Mattel parties settle their long-running patent infringement lawsuit. Mediator Mike Young wonders about mediation confidentiality as both Prosper and counsel talk about the potential to settle the case and the way in which trial proceedings have impeded resolution.

Though the disclosures are general, I'd be cautious in talking to the press about on-going mediations, particularly where the mediator is talking to the parties nearly every day as Prosper says he is.

There's a word to the wise contained in today's appellate opinion on mediation confidentiality Rael v. Davis, expressly holding that all parties to a mediation must agree to waive confidentiality in writing and in person, not through counsel. Excerpts from the DJ article troubling Mike are below. You can read the entire article only if you're a subscriber.

September 19, 2008

DOLL DIPLOMACY
A former ambassador is called in as a mediator to help toy makers settle their expensive differences.
By Jason W. Armstrong
Daily Journal Staff Writer

RIVERSIDE - Pierre-Richard Prosper has helped guide a lot of high-stakes negotiations. His job as U.S. ambassador in charge of the secretary of state's Office of War Crimes Issues several years ago included forging agreements with foreign ministers on the return of their nationals held at Guantanamo Bay, Cuba.

Later, along with his duties as counsel at Arent Fox in Los Angeles, Prosper became an oft-tapped mediator in complex cases . . .

But he said this week his latest meditation - helping to settle a four-year federal court battle that is essentially a hair-pulling dust-up between two dolls - has proven to be one of his thorniest assignments. . . .
"We are in the midst of litigation - the fog of war," Prosper said. "Both parties firmly believe in the strength of their positions. Getting them to move from their respective corners is a major challenge."
But Prosper said he "firmly" believes "there is an agreement out there that can be reached."

"The real question is, is there the political will to reach such an agreement?" he said. "That's the harder issue."

The litigation involving the edgy, wide-eyed Bratz - dolls credited with cutting into sales of Mattel's longstanding Barbie - has been gritty: Mattel sued MGA, accusing the Bratz manufacturer of pirating its concept for the highly lucrative line by working on the idea with a Mattel employee . . .

Christa M. Anderson, an attorney for Bryant, said Prosper's persistence stood out. While she said she couldn't comment directly on his negotiations in the case, Anderson said he "worked very hard" to achieve a consensus.

"He's good at bringing the parties back to the table again and again through creative ideas and persistence," Anderson, a partner with Keker & Van Nest in San Francisco, said. "He's very diligent."
In the Mattel-MGA spat, Prosper said the parties have appeared close to an agreement on several occasions. But numerous clashes between the lawyers and sudden twists and maneuvers in the trial drove a wedge into discussions, Prosper said. He declined to discuss specific instances.
"There were a couple of times in the past weeks where we have moved closer to [an agreement], but then because of events in court its caused us to take a step back," Prosper said.

Prosper declined to comment on the negotiations, but Larian told the Wall Street Journal last week that he was "open to all different options as long as they are reasonable." He told the paper he would be willing to share with Mattel a portion of royalties from the "first generation" of Bratz dolls manufactured in 2001, but he refused to share other revenues and future sales of the line.

Thomas Nolan, lead trial attorney for MGA in the case, declined to comment on settlement talks. He is a partner with Skadden Arps Slate Meagher & Flom in Los Angeles.

John Quinn, lead trial lawyer for Mattel, also wouldn't discuss the negotiations. Quinn is a name partner with Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles.

But both men said they appreciated Prosper's tenacity.

He "won't give up," Quinn said.

Nolan agreed, and said he admires Prosper's "ability to stay calm" when "everyone else around him is emotional."

In the Bratz case, for the past several weeks, Prosper said he's had almost daily in-person or telephonic meetings with the lawyers and executive officers for Mattel and MGA.

"This case has an interesting landscape that has constantly shifted, so it's required almost daily communications with the parties," Prosper said.
Prosper has been credited with successfully negotiating, along with former Secretary of State Colin Powell and others, with Serbia to hand over former Yugoslavian leader How does Prosper compare war crimes negotiations to the doll fight he's now immersed in?
"The parties are in the throes of litigation, and this is the most important thing to them," Prosper said. "But this case isn't about life or death. It's about dolls and money. There are more important things we should be spending our time and resources on."

Preparing for an IP Mediation: Flow Charts, Check Lists and Mind Maps

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 23 Sep 2008 11:30:21 -0800

(mind map from Knowledge Aforethought)

Check out the brilliant copyright flow charts and checklists which the The Corner of Lex and Biz has thoughtfully aggregated for the rest of us here.

When I prepare for an IP mediation, I take the parties' briefs and make flow charts, mind maps and checklists from them. Though your deathless prose is a joy to me as an old Lit Major, writer and literary journal editor, it's not so useful to me in getting what I need to understand about a complex commercial transaction really quickly, including the party relationships, legal and fatual issues, party interests, points of potential impasse, junctures at which party differences might be put to good negotiation advantage and similarities that might be used to smooth the way toward a reasonable settlement that makes good business sense for everyone.

Here's what I tell my litigants -- MAKE THE CHARTS FOR ME. If you're the only "side" that does this, I'm far more likely to keep YOUR CHART before me throughout the course of the negotiation. And though I do not see my primary role as a 13th juror -- particularly in cases where the lawyers have being living with the case for years -- the opinions I express -- sometimes reluctantly -- on the merits, do have an effect on the parties' decision to settle and their valuation of the case.

As I'm always saying, please help me help you.

Blawg Review # 178 Rocks the IP World from Down Under

vpynchon@settlenow.com (Victoria Pynchon) — Mon, 22 Sep 2008 11:02:55 -0800

Run, don't walk to what may well be the Best BlawgReview of the Year at Freedom to Differ with these tasty IP and technology morsels.

Law, blogs and technology

At one of my favourite blawgs, The UTube Blog, Edward Lee blogged that NBC praises YouTube technology in keeping unauthorized Olympics videos off the Internet — is Viacom’s case against YouTube now toast?

At PrawfsBlawg Marc Blitz pondered the privacy implications of a video game that you control with your mind. Meanwhile Sam Bayard from The Citizen Media Law Projectblogged that YouTube announced changes to its community guidelines last week, prohibiting the upload of videos inciting others to commit violent acts, giving Senator Lieberman a partial victory on terrorist videos.

On Pointwondered whether the 11th US Circuit Court of Appeals tried to cover up a particularly deplorable decision in a civil-rights case by not publishing it, only to have the videotape of a Florida police officer repeatedly tasering a handcuffed motorist showing up on YouTube - with the apparent support of the dissenting judge.

The Greatest American Lawyer observed that Cell Phones Can Distract ... And Kill: Metrolink Engineer May Have Been Texting In Deadly Train Crash. While on that tragic accident, Traverse Legalreported that it appears that cybersquatters immediately prey upon the publicity that surrounds a mass accident.

Adam Frucci noted that an anti-consumer 8,000 words update to AT&T's 2,500 pages-long customer agreement (called a "guidebook" by the company) probably won't be read by many of its customers, but it is attracting attention from regulators who may require the telecom giant to rein it in.

Mike Masnick doubted that peer review is sufficient to help the somewhat dysfunctional American patent system. Gene Quinn wrote that patent trolling has subverted the system from one protecting innovation to one simply redistributing wealth.

And with a shrink-wrap license on a bag of grapes in a supermarket, Mike Madison suggests that contracts have finally "jumped the shark" while Timothy Zick looked at Meatspaces, Cyberspaces, and (Relative) Expressive Freedom and Michael Dorf chanted Spam, oneSpam Spam Spam Spam Spam, Glorious Spam,

Susan Crawford, the founder of One Web Day, urged us to contribute to the e-Democracy Time Capsule at timecapsule.onewebday.org:

Anyone across the country and the world can contribute by adding text, images, and video that celebrates e-Democracy to an open blog. We invite you to add the following entries:

Best of the e-Democracy Web: Your favorite tools, citizen journalist site, etc. What empowers you to act online?

E-democracy heroes: Brag about your friends and colleagues- who is behind the best political technology, content, and critical policy fights today?

Legislation and Policy: What are the issues we face in delivering the best possible future for e-Democracy?

Letters to the future: How do you see the e-Democracy Web growing (or failing) in the future?

However, one law blogger is in a little bit of trouble with the Recording Industry Association of America seeking to have attorney-blogger Ray Beckerman declared a "vexatious" litigator. According to Wired'sThreat Level blog the RIAA alleges that Beckerman, one of the nation's few attorneys who defends accused file sharers, "has maintained an anti-recording industry blog during the course of this case and has consistently posted virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass plaintiffs ... Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions." Read more here and visit Beckerman's blog, Recording Industry vs The People.

Submission guidelines for next week's issue here and if you're brave enough to follow Aussie Peter Black's lead, there are a lot of free dates open for next year's hosts for Blawgreview in the right-hand sidebar.

Law in Motion: Legal Documentary Journalism at its Best

vpynchon@settlenow.com (Victoria Pynchon) — Sat, 20 Sep 2008 10:02:10 -0800

When I celebrate the fact that the means of production are now in the hands of the people, I'm not talking about the ten-fingers of your 13-year-old daughter (great as her uploaded videos of the family cat might be).

If you're longing for quality documentary content on the internet, check out the KobreGuide, which has a LAW CHANNEL channel here.

The Guide takes its name from its publisher and editor Ken Kobré whose textbook (below, right) has been the widest-selling text on photojournalism in the world for nearly thirty years.

I'd be excited about this new way to find quality moving journalism on the 'net whether or not my good friend journalist-mediator Jerry Lazar wasn't serving as Editorial Director -- a guy with some of the best instincts for quality journalism in the country. Here's how the Kobre Guide describes itself:

This project is an antidote to comprehensive Web video portals, such as YouTube and MetaCafe... We're focusing instead on handpicked, high-quality documentary-style journalism that is being produced primarily by major media outlets -- and frustratingly difficult for consumers to find...

We're a "curated" site (to use the latest buzzword, now that "edited" seems to have lost favor), which means that we're relying on discerning eyes and ears of people like YOU (and not search engines or web bots) to help alert and point us to the creme de la creme ...

We've already located scores of prizeworthy multimedia gems to showcase at launch, and now we're soliciting input from smart folks like you, who are in a position to know about and share the good stuff out there...

Criteria? ... Think "60 Minutes" TV newsmagazine-style journalism (NOT daily news or event coverage) -- but geared for the Web... Mainly video, but also compelling audio-slideshows, or a hybrid thereof...

In short: True (nonfiction) journalism Web multimedia stories of the highest professional quality...

And thanks for the shout out Professor!

California Supremes Open Door Closed by U.S. Supremes

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 04 Sep 2008 00:33:21 -0800

by Jay McCauley

Every time I ask attorneys to identify the single worst drawback of arbitration, their overwhelming answer is “no appeal." With Arbitration comes the nightmare of losing for no good reason with no possible fix.

In March of this year, the Supreme Court closed the door to the best solution, finding that contracting parties who choose arbitration lack the power to write appellate review into their arbitration agreements. Hall Street Associates, LLC v. Mattel, Inc. (2008) __U.S.__, 128 S.Ct. 1396. (see opinion below)

Just last week, the California Supreme Court, addressing the very same issue under the California Arbitration Act, re-opened the door. Cable Connection, Inc. v. DirecTV.

Both the Federal Arbitration Act and the California Arbitration Act expressly provide that an award may be vacated if it is “in excess of the arbitrator’s powers.” FAA section 10; CAA section 1286.2. The question presented to both courts was whether parties may contractually define those powers by providing that arbitrators who fail to base an arbitral award on the law exceed them. The United States Supreme Court answered: “No, parties may not define those powers.” The California Supreme Court declared the opposite: “Yes, they may.”

A Tale of Two Visions

In Hall Street, the U.S. Supreme Court made the finality of erroneous awards a feature so hard-wired into arbitration's nature that it cannot be contractually averted. The California Supreme Court, by contrast, makes arbitration a malleable institution whose features may be designed by the contracting parties. For the U.S. Supreme Court, arbitration’s essential virtues are efficiency and finality. For the California Supreme Court, arbitration's essential virtue is customizability –– efficient for those who seek efficiency and reliable in its outcomes for those who crave predictability.

Last November, before either decision was issued, I mispredicted in a post at the Settle It Now Negotiation Blog that the United States Supreme Court would side with the freedom of contracting parties to protect themselves against lawless awards. I did so not only because a majority of the Circuit courts had thus far gone that way (the First, Third, Fourth, Fifth and Sixth, with the Ninth teetering hopelessly back and forth and the Second not yet heard from) but also because the power of the argument was blindingly evident:

Congress expressly said Courts may vacate when the arbitrator exceeds his power [I said]. It never prohibited the contracting parties from defining what those powers are…. What Congress said it intended was to put arbitration agreements “on the same footing” as all other agreements. That should mean “carry out what the parties contracted for” as long as their contract is neither illegal nor contrary to public policy.

This is why the U.S. Supreme Court's decision was so disappointing. It didn't deny contractual freedom on ordinary grounds of illegality or contravention of established public policy, but on the ground that “maintain[ing] arbitration’s . . . . virtue of resolving disputes straightaway” is essential. Apparently the Court feels obliged to protect this one beneficial trait of arbitration against the supposed peril of those who might use arbitration for its other benefits.

For the same reason, the California Supreme Court's decision is gratifying, particularly as it pauses to note frank mystification by what the U.S. Supreme Court has done. Before upholding the rights of people who are of legal age and sound mind to opt for the rule of law and expect the courts to honor their wishes, the Court noted that "[b]efore Hall Street, we would have had no difficulty concluding that enforcing agreements for judicial review on the merits is consistent with the fundamental purpose of the FAA [the Federal Arbitration Act].” The California Court went on to counter the notion that arbitration has any single essential characteristic -- such as finality -- explaining,

Review on the merits has been deemed incompatible with the goals of finality and informality that are served by arbitration and protected by the arbitration statutes. However, … those policies draw their strength from the agreement of the parties. It is the parties who are best situated to weigh the advantages of traditional arbitration against the benefits of court review for the correction of legal error.

Id. at 31.

Finding no reason to fear that parties favoring dependability over efficiency imperil any public interest, the California Court found it quite legitimate for "sophisticated parties in high stakes cases" to "desire . . . . the protection afforded by review for legal error" in light of their often unfortunate experience with arbitration awards that "deviated from the parties’ expectations in startling ways.” Rather than harming the institution of arbitration, the Court concluded that “the development of alternative dispute resolution is advanced by enabling private parties to choose procedures with which they are comfortable.” Id.at 33 (emphasis added).

We Dug Our Own Hole

How did we reach the point where a state court, rather than the U.S. Supreme Court, would protect the parties’ freedom to contract for a private adjudication that calls upon the rule of law? I believe that we –– the ADR community –– have done this to ourselves. Endless tracts on the benefits of arbitration tout its primary benefit (compared to litigation) as its efficiency, isolating a common characteristic of many arbitrations and universalizing it into a necessary trait of all arbitrations.

The largest private ADR provider in the world, the American Arbitration Association, saw fit to file an amicus brief in the Hall Street matter, opposing its own customers' contractual freedom on the ground that arbitration's fruits cannot properly be anything other than finality and efficiency, even if parties want it to produce something more appealing for them. As the AAA argued,

Permitting enhanced judicial review by contract would not only eviscerate the principle of finality in individual cases, but would likely transform arbitration into traditional litigation. If procedural efficiencies in arbitration were lost, and if courts increasingly intervened in the process, the value of arbitration would inevitably decline.

AAA Amicus Curiae Brief, p. 6

That efficiency and finality are necessary features of arbitration is not a new argument, and it has been made elsewhere than in the courts. Stephen Ware, the most insightful intellect in the field of Arbitration today, brilliantly decries the habit of many fellow ADR academicians to reify arbitration into an institution having necessary features apart from the contracts that create it. Responding to ADR guru Edward Brunet’s attempt to inventory the “core values of arbitration,” Ware says:

I do have one quibble with [that approach]. Unlike Professor Brunet, I do not see secrecy, arbitrator expertise, adjudication efficiency or finality as necessary values of arbitration. I see autonomy as the value that transcends those other values. Because arbitration law gives the parties autonomy, they can choose to have their arbitration be secret or not. Because arbitration law gives the parties autonomy, they can choose to have their arbitration use quick and efficient procedures or not. . Because arbitration law gives the parties autonomy, they can chose to make their arbitration final or – by having an appellate arbitration panel or expanding the grounds for vacatur – not.

It is certainly true that most parties to arbitration agreements choose to use their autonomy to advance the values of secrecy, arbitrator expertise, adjudicatory efficiency and finality. But, in my view, that does not show that these are core values of arbitration; it shows that these are core values of most of the parties who agree to arbitrate.

Brunet, Speidel, Sternlight and Ware, Arbitration Law in America, a Critical Assessment, Cambridge University Press, 2006, p. 339

The Solution is Simple -- Leave the Federal Arbitration Act in the Dust

What are the implications of the California Supreme Court rejecting this limited view of arbitration? Quite simply: it reestablishes a critically needed arbitration vehicle that the United States Supreme Court had eliminated. The addition (or retention) of this vessel to the ADR fleet does not impair the rest. Nor is our ability to use this vessel undermined by the United States Supreme Court’s limiting interpretation of its own arbitration institution –– that created by the Federal Arbitration Act. That Act does not preempt the States' ability to go in the opposite direction from the FAA, even under the auspices of identically worded legislation. Counsel concerned about preserving judicial review do not have the contractual freedom to provide for such review in contacts governed by the FAA, but they absolutely have the contractual freedom to specify that their contracts are not governed by the FAA.

The upshot: For those with California disputes, or those in states whose courts have taken their own arbitration acts in the same direction California has taken its, or for those in states whose choice of law rules permit a binding contractual provision that California Law applies (procedural geeks will know this is not so far fetched; interestingly, the Cable Connection case itself began with a motion to compel proceeding in Oklahoma) the solution is simple: draft the arbitration clause to specify that the arbitration shall be governed by the law of an appropriate friendly state [e.g. the California Arbitration Act]. Otherwise stated: Leave the Federal Arbitration Act in the dust.

The irony: This is exactly the opposite of the advice sensible counsel would have given last year for those concerned with finding refuge from erroneous awards. Last year, four appellate courts in California had said you can’t contract for review, while the majority of the Federal Circuit Courts had said you can. Even those circuits that did not allow the parties to agree to review could give the cold comfort of potential reversal for extremely bad awards under the “manifest disregard” doctrine, a doctrine that has been expressly rejected by the California Supreme Court applying the California Arbitration Act.

California the New Delaware?

Decades ago, Corporations found a refuge from the anarchy of irrational or incompetently administered corporate law when the tiny state of Delaware turned itself into a Mecca for such matters. It is not far-fetched to envision California as an analogous Mecca for Arbitration. In this fertile ground, arbitrations reviewable on the merits –– a species of arbitration the U.S. Supreme Court viewed as a platypus too weird to exist –– will be permitted to thrive.

Attorney-Mediator-Arbitrator Jay McCauley will soon be joining IP ADR as a regular blogger. We'll provide his specific IP expertise in the bio soon to be included above. Until then, here are Jay's essential credentials.

After practicing since 1980 as a Harvard Law School educated, AV rated trial and appellate lawyer, Jay McCauley turned his experience and skills to full-time mediation and arbitration in 1998. He has had extensive training at the Straus Institute for Dispute Resolution, and now teaches as an adjunct professor at that Institute. He serves on the Large Complex Case Panel as well as the Employment panel of the American Arbitration Association, where he has handled a broad range of disputes, including several whose value has exceeded $50 million. He also serves as a mediator with Judicate West, where he specializes in the resolution of complex business, employment and real property disputes.

If You Can't Copy the Law, There's Something Really Wrong Here

vpynchon@settlenow.com (Victoria Pynchon) — Wed, 03 Sep 2008 19:36:03 -0800

From the No Comment Department:

(h/t Slashdot)

California claims copyright to its laws, and warns people not to share them. And that's not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him,

For full post click here.

The closing scene from And Justice for All irresistible . . .

What to Do When the FBI Arrives at Your Door

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 29 Aug 2008 14:29:32 -0800

In light of the FBI's arrest of local blogger and alleged illegal streamer of copyrighted Guns and Roses music, Kevin Cogill, I thought it would be useful to the blogging community to direct it to tips on dealing with the FBI below:

If an Agent Knocks: Federal Investigators and Your Rights from the Center for Constitutional Rights.

The Constitution. That document containing the rights Presidents swear to protect and defend. That littletechnicality. The Constitution.

Did I say Constitutional Rights?

Here's are the categories of advice. Click on the Agent Knocks link above to connect to any of them.

1. What is Political Intelligence?
2. Do I have to talk to the FBI?
3. Under what laws do the agents operate?
4. What federal agencies are likely to be interested in a citizen's political activities and affiliations?
5. How does the FBI learn about citizens and organizations?
6. What if I suspect surveillance?
7. How should I respond to threatening letters or calls?
8. What rights do I have?
9. What should I do if police, FBI, or other agents appear with an arrest or search warrant?
10. What should I do if agents come to question me?
11. If I don't cooperate, doesn't it look like I have something to hide?
12. Are there any circumstances under which it is advisable to cooperate with an FBI investigation?
13. How can grand juries make people go to jail?
14. Is there any way to prevent grand jury witnesses from going to jail?
15. What can lawyers do?

FBI Plays Starring Role as IP Bully by Arresting Blogger

vpynchon@settlenow.com (Victoria Pynchon) — Fri, 29 Aug 2008 07:38:32 -0800

Blogger arrested, accused of posting 9 unreleased Guns N' Roses songs

Those of you old enough to remember Woodstock in "real time" or to have attended yourself, you'll no doubt recall the magic moment when the concert producers decided to tear down the fences and make the concert free.

Then they made a lot of money on the documentary.

I suppose they could have called the local, state or national authorities to arrest the trespassers, but would that have made good business sense? I don't think so. When the culture is changing faster than the law, it makes far better business sense to co-opt the movement than to arrest it.

Still, some people just don't get it.

I'm linking you to the Los Angeles Times story on the arrest of a local blogger for streaming Guns 'N Roses. Since I'm printing the Times article in its entirety, you may consider this a teeny tiny act of civil disobedience in the tradition of Thoreau (his Civil Disobedience here).

But listen, guys. Send the firemen instead of the FBI. They're always much better looking.

Need I say there's got to be bigger story here? Like, selective prosecution? Any criminal lawyer readers out there.

Below, the L.A. Times story. Complete.

("Yes, Officer. I did pay for the cartoon over at istockphoto.com. I've got the receipt here somewhere")

Kevin Cogill, 27, of Culver City, who admitted to allowing public access to the songs on the Antiquiet blog, was arrested today on suspicion of violating federal copyright laws.

By Scott Glover, Los Angeles Times Staff Writer

A man accused of posting nine previously unreleased songs by the rock band Guns N' Roses on a website where they could be accessed by the public was arrested at his home early today on suspicion of violating federal copyright laws, authorities said.

Kevin Cogill, 27, is accused of posting the songs, which were being prepared for commercial release, on the Internet blog Antiquiet in June, according to an arrest affidavit. The site received so much traffic after the songs were posted that it crashed, the affidavit states.

Cogill admitted to posting the songs when he was questioned by an FBI agent, according to the affidavit. He was arrested at his home in Culver City this morning and is expected to appear in U.S. District Court in Los Angeles later today, said Assistant U.S. Atty. Craig Missakian.

I'll be very interested to see what the U.S. District Court Judge does with this. We have a very serious federal court bench here who do not like playing games with their extremely limited and extraordinarily valuable time.

For a genuine legal analysis see Citizen Media Law Project's coverage for which I'm providing a link and an excerpt:

Update: Cogill has in fact been charged under 17 U.S.C. § 506(a)(1)(C), which implements the copyright amendments included in the Family Entertainment and Copyright Act of 2005. I've been able to locate the criminal complaint filed against him, and it charges that he "knowingly and willfully distributed a copyrighted work being prepared for commercial distribution, namely nine previously unreleased songs by the band Guns n' Roses, by making the songs available on a computer network accessible to members of the public."

(You can follow further developments in the case by going to our legal threats database entry, United States v. Cogill.)

Speaking of Woodstock . . . Jimi Hendrix' Star Spangled Banner below.

Patent Reform at the DNC and Dovetailing Differences to Settle Patent Infringement Litigation

vpynchon@settlenow.com (Victoria Pynchon) — Thu, 28 Aug 2008 09:40:49 -0800

Thanks, first, to Google Reader for offering me feeds to blogs it knows I'd like but don't have (like Peter Zura's 271 Patent Blog) and then making it easy for me to add them to my Reader, which I can now read on my iPhone thanks to Apple. Really. I'm grateful (but could someone now please replace Outlook with a program that doesn't move at a glacial pace?)

On to the real purpose of this post with a hat tip to Peter Zura's 271 Patent Blog for this item out of Denver.

Lofgren, D-Calif., told a crowd in Denver on Tuesday that it is crucial for Congress to pass legislation to update the U.S. patent system next year -- . . .

Lofgren, who represents the Bay Area and is a key member of the House Judiciary Committee, said a new effort should begin with "things we know we can agree on." A proposal that would curb judicial "venue-shopping" for favorable courts is critical as is language to address patent abuses, she said. "How do you legally set a framework that prevents abuses and allows for a vigorous system that protects intellectual property?" Lofgren asked aloud. "It's not easy to come up with solutions."

Is talking about the things we agree upon first always the best negotiation tactic? It's certainly helpful when you're brainstorming solutions to intractable disputes -- here -- "set[ting] up a framework that prevents abuses and . . . . a vigorous system that protects intellectual property."

When the debate is particularly rancorous, as is often the case in patent infringement litigation, dove-tailing the parties' differences -- an issue upon which they invariably agree -- is one of the best ways to locate and maximize value to both parties. Lax and Sebenius in their must-read 3-D Negotiation remind us that "complementary differences -- pairs of high benefit-low cost items" in which one side values the point highly and the other can provide it at relatively low cost is a good place to begin.

Small talk at the commencement of negotiations -- which itself increases the likelihood of a deal -- is one way the parties can locate these high-benefit-low cost items, particularly where they haven't identified them before the negotiation begins. What kinds of items are easily dove-tailed? Lax and Sebenius provide us with the categories as follows:

Dovetailing Differences in Forecasts or Beliefs about the Future.

Because the settlement of patent infringement litigation invariably requires one party (or both!) to license the other, the parties' differing expectations of market success or likely technological changes that could make the IP less valuable or even obsolete, are a good place to look for the high benefit-low cost synergies mentioned by Lax and Sebenius.

If party A firmly believes that sales are going to increase over the next five years and party B is "certain" that they will decrease, their differences in future projections can be dove-tailed by a graduated schedule of fees. Party B -- who believes there will be minimal to no sales in year five -- can offer higher royalties in year 5+ and lesser in the earlier years. The attempt to dove-tail these differences is also a good way to call your bargaining partner's bluff. You'd be amazed how quickly certainty drains from party predictions when they're asked to put their own money on the gamble.

Dovetailing Differences in Attitudes Toward Risk

I recently negotiated the settlement of a patent infringement case in which Party A and B were considering a merger of the two companies as a means of settling their disputes. Both parties held multiple patents, a few of which were being litigated in other proceedings. Both parties' valuation of the risk of loss if the event of adverse judgments was approximately the same, i.e., there were no material differences in the parties' forecasts about the future outcome of the lawsuits.

The parties did, however, have substantially different attitudes toward risk and differing abilities to sustain losses. Party A, by far the richer player, was much less averse to the outside risks of the pending litigations. Party B was concerned that the the value of the merged company -- his only real asset -- could be destroyed in the event all of the lawsuits were successful. The parties had reached impasse on the value of B's shares and of the merged enterprise primarily because of these uncertainties. Because Party A could weather the outside risk, it agreed to assume it (wagering not only on his ability to satisfy potential judgments but his insurance carrier's willingness to settle existing disputes over coverage). When these uncertainties were removed from B's plate, he was willing to assign far more value to the merged company, enabling the detailed negotiations for the merger to commence. /*

For more hypothetical examples, see the following 3-D Negotiation Risk Attitude Dovetailing sub-sections -- Selling a Restaurant; A Joint Venture of Opposites, A Public-Private Real Estate Deal and Assessment Ambiguities.

Dovetailing Differences in Attitudes Toward Time

This category of dovetailing is very like my first hypothetical. Here, however, the differences in expectations (and desires) concern the mere passage of time coupled with party shares in a joint venture. Here, Party A is impatient for immediate returns on his investment, which he needs to fund a new enterprise. Party B, who is older than A and looking forward to retirement, is more interested in creating a stream of income in the future.

In this scenario, Lax and Sebenius suggest a structure in which Party A earns a smaller share of the early profits and Party B earns a larger share of the later profits.

All of these potential solutions to intractable litigation involve high level financial planning and business forecasting that are far beyond the scope of most "pure money" disputes. There are few patent infringement disputes, however, that couldn't be more easily resolved by dovetailing party differences. The law firm's settlement team should be devoting as much time, thought and energy to negotiation planning as its litigation and trial team is devoting to just winning the darn thing.

______________________

*/ Facts greatly simplified to protect the confidentiality of the mediation and to avoid discussion of unnecessarily complex financial transactions.

Los Angeles Judges and Attorneys!! Engage Local High School Students in Conversation about the Tensions Between Liberty and Security to Commemorate 9/11

vpynchon@settlenow.com (Victoria Pynchon) — Tue, 26 Aug 2008 13:32:16 -0800

Dialogues on Freedom - Volunteers needed!

Commenorate 9/11 by engaging high students in a discussion about the tensions between liberty and security in the wake of the attacks on the World Trade Center. These kids -- 15 through 18 -- were 8 to 11 years old a the time of the attacks. It has defined the world they live in. Help them see it from a different viewpoint.

I have participated in this program for several years now and it has become one of the highlights of my year. You can render this important public service with a half-day of training and a half-day in our local public schools. Below, the description of the program by LACBA.

In response to the September 11 terrorist attacks, Justice Anthony Kennedy created a program where participating lawyers and judges lead discussions in public high schools, discussing the concepts of freedom, law and justice. The dialogues are not lectures. They are focused talks which challenge students to think and talk about their own perspectives and experiences regarding freedom and the state of our nation’s security.

Since its inception in 2002, this annual program, sponsored by the Los Angeles County Bar Association and the Los Angeles Superior Court in cooperation with the Los Angeles Unified School District, has become a day of remembrance and tribute, and an opportunity for lawyers and judges to impact high school students in our community.

Today’s students need input and guidance from legal professionals. Not only are these future decision-makers in need of guided discussions regarding the importance of the events since 2001, but they also need first-hand exposure to the legal profession. The Diversity Pipeline Summit held by LACBA in June 2007, revealed the enormous amount of young people interested in law and legal careers. Therefore, now, more than ever, Dialogues on Freedom is one of the best ways for students to be exposed to future careers in the law.

Please join LACBA's Dialogues on Freedom to help lead a discussion at a Los Angeles-area high school on September 11, 2008. Volunteer teams of lawyers and judges will conduct 50-minute sessions on September 11 at various Los Angeles County High Schools. Last year, teams received assignments at the following schools: Belmont, Chatsworth, Dorsey, Eagle Rock, Fremont, Hollywood, Jefferson, Lincoln, Manual Arts, Monroe, North Hollywood, Roosevelt, University, Venice and Wilson High Schools.

Trainings for judges and lawyers who wish to participate in this year’s dialogues will take place on Thursday, September 4, 5:30-6:30 p.m. at Stanley Mosk Courthouse, 111 N. Hill St., Room 222, in downtown Los Angeles or alternatively on Saturday, September 6, 10:00-11:00 a.m. at Venice High School, 13000 Venice Blvd.

If you are interested in participating as a volunteer in the Dialogues on Freedom program, please sign-up online or e-mail the following information—your name, firm/office name, firm/office address, office phone, e-mail address, and the number of 50-minute class sessions for which you can stay at a school (AM or PM)—to freedom@lacba.org as soon s possible.

Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it. ~Thomas Paine

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. ~Benjamin Franklin, Historical Review of Pennsylvania, 1759

I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. ~James Madison, speech, Virginia Convention, 1788

Liberty means responsibility. That is why most men dread it. ~George Bernard Shaw, Man and Superman, "Maxims: Liberty and Equality," 1905

Linked In Answers to Question: Who Benefits from Inefficiencies of Patent Litigation?

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 24 Aug 2008 16:18:58 -0800

I recently posed the following question to the IP ADR Blog's readers and to my LinkedIn network:

Which patent infringement litigation parties (if any) benefit from the inefficiencies in the process?

As usual, my LinkedIn Network delivers.

The really terrific, thoughtful answers to the question below.

Thanks to each one who answered. I'll be following this up with an article or lengthy post soon.

Unless the litigants are disproportional in size there are no winners from these inefficiencies. One can even say that the biggest losers in this process are not even a party to the case. I'm referring to the consumer or the true bearer of the inefficiencies and related cost.

The speed of innovation, the product development, and the marketing efforts will continue to evolve into quicker and more efficient cycles. At some point the legal process will be forced to adapt. A good example of this is the Federal Rules of Civil Procedure on Electronic Discovery.

Change is good, and depending on how business is conducted, it may also be a necessity.

Francis Bueb CPA, CITP of Ueltzen & Co.

Unless a preliminary injunction is granted, the defendant in a patent infringement case will likely benefit from a longer and less efficient process. Defendants usually want the plaintiff to have to keep shelling out money to keep the litigation furnace burning.

On the other hand, sometimes a plaintiff who is granted a preliminary injunction just wants to keep the defendant out of the market as long as possible. In such a case, the parties are likely competitors and the longer the defendant's competing product is off market the better for that plaintiff. Sometimes, even a litigation loss is a win for such a plaintiff if, say, the plaintiff's product is replaced by a newer version that is accepted by the consumers before the end of the litigation over the product that is replaced.

Ryan H. Flax, IP Attorney, Dickstein Shapiro, LLP

The one with more money.

Ed Green, Patent Lawyer, Coats + Bennett

The sad truth is that only the defense attorneys benefit from inefficiencies in litigation because they are charging by the hour. As for the litigants, the Plaintiff usually wants a trial as soon as possible. So, inefficiencies and delay benefit the Defendant, i.e. the accused infringer.

Scott C. Kinsel, Partner, Moore Landrey LLP

In fact the Plaintiff would be at lose because he/she may not get justice immediately. There is a proverb, “justice delayed, justice denied” and if the process is inefficient there would be delay and in such a situation the Plaintiff may not get quick justice. Also, if the plaintiff(s) do not succeed in getting an injunction order against the defendant(s), specifically in case of IPR matters, the Plaintiff may not be able to enforce his/her monopoly IP Right granted by the concerned IPR Office.

Ram Prakash Yadav, Manager - IPR at ACME Tele Power Ltd. Gurgaon

I'd agree with Ed on this one, deeper pockets benefit from inefficiencies.

Inefficiencies result in increased expenses. The increased expenses become a point of leverage in the dispute. I have had clients avoid exercising some of their rights in litigation because exercising their rights would have delayed the trial, which would have added expenses.

Generally, the Defendant has the deeper pockets - which I would suggest is part of the reason others have suggested the Defendant benefits.

Additionally, you do not have the number of frivolous law suits in patent litigation that you have in other civil litigation because it is so expensive to litigate patent infringement. Most patent owners cannot afford to file a complaint unless they are absolutely convinced they have a winning case.

The big loser in the process is the independent inventor or small company, who do not seek patent protection for their new ideas because they do not believe (perhaps correctly) that they will ever be able to enforce their patent, so why seek it. Ultimately, any novel products they develop that have a market will be stolen without any need for litigation.

Todd Sullivan, Managing Partner, Hayes Soloway, P.C.

Apart form the lawyers, I would say that alternative dispute arbitrators (such as the asker of this question) benefit - the inefficiencies of the legal process will drive more on both sides to use these alternative solutions.

Between the two sides, I think either could benefit, it depends on circumstance - sometimes the patent holder benefits as a potential infringer may continue infringing while awaiting a resolution, and end up paying more when the case is settled - sometimes the infringer will benefit as they can continue profiting from their work while the case is argued, whereas if it was sorted earlier they might effectively be stopped in their tracks - I can easily see a case where both the above could be true.

Finally, the customers may benefit. New products may get developed which would never get launched if their weren't the delays and uncertainties that exist in the system.

Bernard Gore, Facilitation, Project & Programme Management

I don't think there's a simple answer to this, I'm sorry.

It depends on the country - some countries allow an ex parte interim injunction to be granted with no ability for the defendant to add evidence in an appeal. (Highly efficient or inefficient, depending on your point of view.) Either way, the inability to add evidence on appeal is inefficent, if justice is your aim.

It depends on the industry - in the pharmaceutical context, say in the US - the whole litigation procedure is skewed by the Hatch-Waxman regime. So here it even depends on the context of the particular dispute. So, if the 30 month stay is rapidly approaching with no prospect of a trial, then then innovator company will benefit from inefficiencies because they will keep the generic off the market longer, or have a good shot at an injunction in the mean time (depending, again on the patent, etc).

There are others, but this gives the general gist.

Duncan Bucknell, IP Strategist, Lawyer & Patent Attorney

And You Thought You Were Engaged in Protracted Litigation

vpynchon@settlenow.com (Victoria Pynchon) — Sun, 24 Aug 2008 16:03:05 -0800

Lowering the Bar citing California Punitive Damages provides this comment in response to the return of Exxon to the Ninth Circuit after two decades of litigation.

In this artist's conception, the last two human attorneys finally realize they are still on Earth, that the Exxon case has still not been fully resolved, and that they will have to ask for yet another continuance because they aren't dressed for court.