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Wednesday, April 23, 2008
Monday, April 21, 2008
Court Reverses $78.9M Verdict Against DirecTV
The Federal Circuit overturned a $78.9 million verdict against DirecTV (Wikipedia Entry) in a patent dispute with California-based Finisar Corp. over broadcasting technology.
Finisar's patent covers a system for broadcasting video and audio programs through high-speed satellite or cable links.
A jury in 2006 concluded that DirecTV (DirecTV Website) had willfully infringed on seven patent claims and awarded Finisar $78.9 million as "reasonable royalty damages."
In vacating the award, the federal appeals court said the district court had misinterpreted "vital terms" in each of the patent claims.
The appellate judges vacated and remanded with instructions for the lower court to re-evaluate infringement and validity for six of the claims
Finisar's patent covers a system for broadcasting video and audio programs through high-speed satellite or cable links.
A jury in 2006 concluded that DirecTV (DirecTV Website) had willfully infringed on seven patent claims and awarded Finisar $78.9 million as "reasonable royalty damages."
In vacating the award, the federal appeals court said the district court had misinterpreted "vital terms" in each of the patent claims.
The appellate judges vacated and remanded with instructions for the lower court to re-evaluate infringement and validity for six of the claims
Friday, April 18, 2008
Surgeon Could Lose License Over Sex With Patient
SAN DIEGO -- A prominent North County surgeon could be in trouble with the state medical board and learned he could lose his license.
Dr. Dennis Nigro is the subject of a hearing at the state building in which he is accused of having sex with a patient.
Nigro admitted to having a brief affair with a woman in 2003, but said she was no longer in his care during their relationship.
Nigro’s Medicare defense attorney, Michael Khouri, said, “The woman does not believe Dr. Nigro was her doctor when the sex occurred.”
“There is documentation required to terminate relationship. It was not done in this case,” said Deputy Attorney General Mary Agnes Matyszewski.
An administrative law judge will issue a proposed decision that will be sent to the state medical board for final disposition.
Nigro’s license could be suspended if discipline is deemed necessary.
On the subject of the "worst five things a doctor can do," Steve Alexander provided the Investigation Team the list of the "worst five" and then commented on each individual item. There were no specific cases or doctors mentioned in the course of this interview. Among the items provided by Mr. Alexander as one of the "worst five things a doctor can do," was a sexual relationship between a doctor and his or her patient. Clearly, in reporting the allegations against Dr. Dennis Nigro there was no intention or effort to tie Alexander’s separate interview specifcally to the Dr. Dennis Nigro case.
Dr. Dennis Nigro is the subject of a hearing at the state building in which he is accused of having sex with a patient.
Nigro admitted to having a brief affair with a woman in 2003, but said she was no longer in his care during their relationship.
Nigro’s Medicare defense attorney, Michael Khouri, said, “The woman does not believe Dr. Nigro was her doctor when the sex occurred.”
“There is documentation required to terminate relationship. It was not done in this case,” said Deputy Attorney General Mary Agnes Matyszewski.
An administrative law judge will issue a proposed decision that will be sent to the state medical board for final disposition.
Nigro’s license could be suspended if discipline is deemed necessary.
On the subject of the "worst five things a doctor can do," Steve Alexander provided the Investigation Team the list of the "worst five" and then commented on each individual item. There were no specific cases or doctors mentioned in the course of this interview. Among the items provided by Mr. Alexander as one of the "worst five things a doctor can do," was a sexual relationship between a doctor and his or her patient. Clearly, in reporting the allegations against Dr. Dennis Nigro there was no intention or effort to tie Alexander’s separate interview specifcally to the Dr. Dennis Nigro case.
Thursday, April 17, 2008
Legal Immigrants, Until They Applied For Citizenship
Dr. Pedro Servano always believed that his journey from his native Philippines to the life of a community doctor in Pennsylvania would lead to American citizenship.
But the doctor, who has tended to patients here in the Susquehanna Valley for more than a decade, is instead battling a deportation order along with his wife.
The Servanos are among a growing group of legal immigrants who reach for the prize and permanence of citizenship, only to run afoul of highly technical immigration statutes that carry the severe penalty of expulsion from the country. For the Servanos, the problem has been a legal hitch involving their marital status when they came from the Philippines some 25 years ago.
Largely overlooked in the charged debate over illegal immigration, many of these are long-term legal immigrants in the United States who were confident of success when they applied for naturalization, and would have continued to live here legally had they not sought to become citizens.
''It's no wonder there are so many illegal immigrants,'' said Brad Darnell, an electrical engineer from Canada living in California who applied for citizenship but is also now fighting deportation. ''The legal method is so intolerant and confusing.''
A legal immigrant since 1991, Mr. Darnell is married to an American and has two American-born sons. But after he presented his naturalization application last year, Mr. Darnell discovered that a 10-year-old conviction for domestic violence involving a former girlfriend, even though it had been reduced to a misdemeanor and erased from his public record, made him ineligible to become a citizen -- or even to continue living in the United States.
Since 1996, when an immigration law overhaul first brought intensified scrutiny of citizenship applications, at least 85,000 naturalizations have been turned down each year.
The record year was 2000, when 399,670 applications were denied, one-third of those presented, according to an analysis by the Migration Policy Institute, a nonpartisan research organization. More recent denial rates remain high, but have fallen from the peak because more immigrants have prepared with civics classes and immigrant advocates before applying to become citizens, researchers said.
In three recent cases in Florida, aspiring citizens thought their green cards entitled them to vote or register to vote before they were sworn in as Americans. When the immigrants reported their elections activities on their applications, not only were their naturalizations rejected, but they were also ordered to leave the country, according to their lawyer, Jeffrey Brauwerman.
In a current Florida case, a British-born businessman saw his naturalization derailed and was detained for deportation because he forgot to update his home address with the immigration agency, Mr. Brauwerman said. He was charged with ignoring a notice in which immigration examiners mistakenly accused him of a felony he had never committed.
In a case that drew Congressional attention this year in Illinois, Marin Turcinovic, an immigrant from Croatia, was twice denied citizenship because he did not show up at the immigration office to be fingerprinted. As his lawyer explained to no avail, Mr. Turcinovic was a quadriplegic, dependent on a ventilator and unable to leave his home.
Mr. Turcinovic died in April 2004 without becoming a citizen, creating an immigration crisis for his French widow, Corina, who had taken care of him. In January Representative Daniel Lipinski, Democrat of Illinois, presented a bill that halted her deportation.
Immigration officials say denials have increased in the last decade because naturalization applications are increasing. They note that approvals are rising as well. In 1996 naturalizations soared for the first time to more than one million, and they remained above 450,000 each year through 2007.
''Whenever we see a period when large numbers decide to apply, there tend to be larger numbers of people who are not ready or might not meet the requirements,'' said Chris Rhatigan, a spokeswoman for Citizenship and Immigration Services.
Officials said the majority of denials went to applicants who failed a required civics and English language test or fell short of residency requirements. Those immigrants generally can try again.
But as the case of the Servano family illustrates, some denials come as a shock to both the applicants and the communities they call home.
Dr. Servano's mother, five siblings and eight of his wife's siblings became naturalized citizens, including one brother and two brothers-in-law who made careers in the Navy. His four children are Americans by virtue of being born here. He has been a legal immigrant in the United States for 25 years.
Following an outcry from neighbors, patients and local officials, Department of Homeland Security officials in December temporarily suspended the Servanos' deportation. The Servanos and their supporters, including Senator Arlen Specter, Republican of Pennsylvania, are using the unusual reprieve to pursue new legal efforts to resolve the couple's case.
Dr. Servano and his wife, Salvacion, lived for years in the United States with no inkling they might have violated the law. They met in the Philippines when she was a nurse and he was a young traveling doctor. Her strict father insisted she marry, they said, but his family wanted him to wait.
In the early 1980s, their mothers came separately to the United States as legal immigrants and petitioned for residence visas, known as green cards, for Pedro and Salvacion under the category of unmarried children. But between the time the visas were requested and when they were issued in 1985, Pedro and Salvacion, hoping to escape conflicting parental demands, secretly married in the Philippines.
Unaware that their marriage could have violated the terms of their green cards, the Servanos settled in the United States. He completed a second medical residency here and began to practice in blue-collar towns where he made house calls and was known for attention to everyday ills. He and Salvacion married in New Jersey in 1987. They renewed their green cards punctually.
''My goal is to be fully functional and integrated into the society,'' Dr. Servano said. They presented their 1991 naturalization applications without seeking a lawyer.
But the doctor, who has tended to patients here in the Susquehanna Valley for more than a decade, is instead battling a deportation order along with his wife.
The Servanos are among a growing group of legal immigrants who reach for the prize and permanence of citizenship, only to run afoul of highly technical immigration statutes that carry the severe penalty of expulsion from the country. For the Servanos, the problem has been a legal hitch involving their marital status when they came from the Philippines some 25 years ago.
Largely overlooked in the charged debate over illegal immigration, many of these are long-term legal immigrants in the United States who were confident of success when they applied for naturalization, and would have continued to live here legally had they not sought to become citizens.
''It's no wonder there are so many illegal immigrants,'' said Brad Darnell, an electrical engineer from Canada living in California who applied for citizenship but is also now fighting deportation. ''The legal method is so intolerant and confusing.''
A legal immigrant since 1991, Mr. Darnell is married to an American and has two American-born sons. But after he presented his naturalization application last year, Mr. Darnell discovered that a 10-year-old conviction for domestic violence involving a former girlfriend, even though it had been reduced to a misdemeanor and erased from his public record, made him ineligible to become a citizen -- or even to continue living in the United States.
Since 1996, when an immigration law overhaul first brought intensified scrutiny of citizenship applications, at least 85,000 naturalizations have been turned down each year.
The record year was 2000, when 399,670 applications were denied, one-third of those presented, according to an analysis by the Migration Policy Institute, a nonpartisan research organization. More recent denial rates remain high, but have fallen from the peak because more immigrants have prepared with civics classes and immigrant advocates before applying to become citizens, researchers said.
In three recent cases in Florida, aspiring citizens thought their green cards entitled them to vote or register to vote before they were sworn in as Americans. When the immigrants reported their elections activities on their applications, not only were their naturalizations rejected, but they were also ordered to leave the country, according to their lawyer, Jeffrey Brauwerman.
In a current Florida case, a British-born businessman saw his naturalization derailed and was detained for deportation because he forgot to update his home address with the immigration agency, Mr. Brauwerman said. He was charged with ignoring a notice in which immigration examiners mistakenly accused him of a felony he had never committed.
In a case that drew Congressional attention this year in Illinois, Marin Turcinovic, an immigrant from Croatia, was twice denied citizenship because he did not show up at the immigration office to be fingerprinted. As his lawyer explained to no avail, Mr. Turcinovic was a quadriplegic, dependent on a ventilator and unable to leave his home.
Mr. Turcinovic died in April 2004 without becoming a citizen, creating an immigration crisis for his French widow, Corina, who had taken care of him. In January Representative Daniel Lipinski, Democrat of Illinois, presented a bill that halted her deportation.
Immigration officials say denials have increased in the last decade because naturalization applications are increasing. They note that approvals are rising as well. In 1996 naturalizations soared for the first time to more than one million, and they remained above 450,000 each year through 2007.
''Whenever we see a period when large numbers decide to apply, there tend to be larger numbers of people who are not ready or might not meet the requirements,'' said Chris Rhatigan, a spokeswoman for Citizenship and Immigration Services.
Officials said the majority of denials went to applicants who failed a required civics and English language test or fell short of residency requirements. Those immigrants generally can try again.
But as the case of the Servano family illustrates, some denials come as a shock to both the applicants and the communities they call home.
Dr. Servano's mother, five siblings and eight of his wife's siblings became naturalized citizens, including one brother and two brothers-in-law who made careers in the Navy. His four children are Americans by virtue of being born here. He has been a legal immigrant in the United States for 25 years.
Following an outcry from neighbors, patients and local officials, Department of Homeland Security officials in December temporarily suspended the Servanos' deportation. The Servanos and their supporters, including Senator Arlen Specter, Republican of Pennsylvania, are using the unusual reprieve to pursue new legal efforts to resolve the couple's case.
Dr. Servano and his wife, Salvacion, lived for years in the United States with no inkling they might have violated the law. They met in the Philippines when she was a nurse and he was a young traveling doctor. Her strict father insisted she marry, they said, but his family wanted him to wait.
In the early 1980s, their mothers came separately to the United States as legal immigrants and petitioned for residence visas, known as green cards, for Pedro and Salvacion under the category of unmarried children. But between the time the visas were requested and when they were issued in 1985, Pedro and Salvacion, hoping to escape conflicting parental demands, secretly married in the Philippines.
Unaware that their marriage could have violated the terms of their green cards, the Servanos settled in the United States. He completed a second medical residency here and began to practice in blue-collar towns where he made house calls and was known for attention to everyday ills. He and Salvacion married in New Jersey in 1987. They renewed their green cards punctually.
''My goal is to be fully functional and integrated into the society,'' Dr. Servano said. They presented their 1991 naturalization applications without seeking a lawyer.
Tuesday, April 15, 2008
Feds may appeal biotech patent ruling
The federal office that regulates patents is considering whether to appeal a court decision this month that threw out proposed rules that would limit how many times companies can resubmit patent applications. The biotechnology industry vociferously opposes the changes.
A U.S. district court in Virginia on April 1 ruled against the U.S. Patent and Trademark Office, agreeing with international pharmaceutical company GlaxoSmithKline, which argued that proposed changes to the patent process would prevent the industry from protecting new inventions.
Last fall, the patent and trademark office approved regulatory rule changes that limited the number of times a patent application can be resubmitted. The rule changes also limited applications to 25 claims -- the items named in a patent that define the diseases a new drug will treat, and the scope of the intellectual property. In the past, claims and continuations have been unlimited, allowing the biotech industry to protect a wide range of clinical applications.
The biotech discovery process is very different than designing a machine or computer program where the intent and use of the invention is known from the beginning. Patent applicants often add information to an application as new clinical data comes in. While a drug cannot be modified after the application, the scientist may collect additional clinical data, conduct a literature search to provide new findings from the field or dig through old lab notebooks for evidence that their drug will hit the specific disease targets named in the application.
Monday, April 14, 2008
Girl in Polygamist Sect Says She Was Beaten
Court documents say the 16-year-old girl whose call triggered the police raid on a polygamist sect's Texas compound said that her husband beat her.
The San Angelo Standard-Times newspaper is citing the court documents as also saying the girl was the seventh wife of a sect member who is named in an arrest warrant on possible abuse charges.
The newspaper says the girl told authorities at a family violence shelter that her husband hit her in the chest and choked her while another woman held her infant child at the sect's Yearn for Zion Ranch.
Court documents on file Tuesday were the basis for Child Protective Services' request that a judge grant it custody of all 401 children removed from the ranch.
The San Angelo Standard-Times newspaper is citing the court documents as also saying the girl was the seventh wife of a sect member who is named in an arrest warrant on possible abuse charges.
The newspaper says the girl told authorities at a family violence shelter that her husband hit her in the chest and choked her while another woman held her infant child at the sect's Yearn for Zion Ranch.
Court documents on file Tuesday were the basis for Child Protective Services' request that a judge grant it custody of all 401 children removed from the ranch.
Thursday, April 10, 2008
America's Best TV Judges
Ms. Sylva is a distinguished lawyer, activist, public servant and dynamic TV personality. She was the first woman and the youngest elected council woman to the City Council, City of Hawaiian Gardens, served as Mayor, Vice-Mayor, and as a Member of the Board of Directors of the Hawaiian Gardens Redevelopment Agency.
Tuesday, April 8, 2008
Dog's Legal Guide
Everything you need to keep your pooch (or the neighbor's) on a legal leash!
America's estimated 50 million dogs are governed by many things: The stomach, the nose and the law -- laws that you as a dog owner, or as the neighbor of a dog, need to know.
Every Dog's Legal Guide is a newly revised, up-to-date practical guide to the legal issues that affect dogs, their owners and their neighbors every day, including:
- dog owners’ liability for injuries
- dogs that bite or create a nuisance
- animal cruelty
- landlords, tenants and dogs
- traveling with dogs
- providing for pets at death
- dealing with veterinarians
- your rights when buying or selling a dog
- restrictions on dangerous dogs
- vaccinations, licenses and other local laws
- guide, signal, service and therapy dogs
The latest edition of Every Dog's Legal Guide is completely updated with the latest laws of your state that affect your canine.
Monday, April 7, 2008
Appeals court may let NSA lawsuits proceed
A federal appeals court on Wednesday appeared unwilling to end a pair of lawsuits that claim the Bush administration engaged in widespread illegal surveillance of Americans.
The 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security by possibly revealing "state secrets." Judge Harry Pregerson wondered: "We just have to take the word of members of the executive branch that it's a state secret. That's what you're saying, isn't it?" A moment later Judge Michael Hawkins suggested that granting the request could mean "abdication" of our duties. At the heart of both cases is the U.S. Justice Department's argument that any lawsuit claiming illegal activity on behalf of AT&T and the National Security Agency--even if the eavesdropping is known to have taken place--cannot proceed because it could let enemies and terrorists know how the government's surveillance apparatus works. It "could compromise the sources, methods and operational details of our intelligence gathering capabilities," Solicitor General Garre said. In the first case, called Hepting v. AT&T, the Electronic Frontier Foundation and other attorneys had filed a class action lawsuit against AT&T saying it unlawfully opened its networks to the NSA.
Last summer, U.S. District Judge Vaughn Walker in San Francisco ruled that it could proceed.
The second case, Al-Haramain Islamic Foundation v. President Bush, is unique: it involves a classified document that the U.S. Treasury Department accidentally turned over to an attorney for the foundation. The top-secret document showed, according to the group, "Al-Haramain and its attorneys had been subjected to warrantless surveillance in violation of (federal law)."
They responded by filing another lawsuit in February 2006 alleging violations of the Foreign Intelligence Surveillance Act. The Justice Department says the Al-Haramain case must be thrown out because it, too, could endanger state secrets. The foundation's attorneys must not even be allowed to refer to it, government attorney Thomas Bondy said Wednesday, because their "mental recollections of the documents are also out of the case."
"I'm feeling like Alice in Wonderland," replied Judge M. Margaret McKeown. While no decision was announced Wednesday, and a final ruling might not be reached for months, a three-judge panel of the 9th Circuit pressed prosecutors to justify asking that the case be dismissed based on declarations submitted by senior Bush administration officials. (All three judges are Democratic appointees.) "The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"
The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not discuss those contents in a courtroom with reporters and the public in the audience. Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired AT&T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an AT&T switching facility in downtown San Francisco on Folsom Street.
The 9th U.S. Circuit Court of Appeals repeatedly pressed Gregory Garre, the Bush administration's deputy solicitor general, to justify his requests to toss out the suits on grounds they could endanger national security by possibly revealing "state secrets." Judge Harry Pregerson wondered: "We just have to take the word of members of the executive branch that it's a state secret. That's what you're saying, isn't it?" A moment later Judge Michael Hawkins suggested that granting the request could mean "abdication" of our duties. At the heart of both cases is the U.S. Justice Department's argument that any lawsuit claiming illegal activity on behalf of AT&T and the National Security Agency--even if the eavesdropping is known to have taken place--cannot proceed because it could let enemies and terrorists know how the government's surveillance apparatus works. It "could compromise the sources, methods and operational details of our intelligence gathering capabilities," Solicitor General Garre said. In the first case, called Hepting v. AT&T, the Electronic Frontier Foundation and other attorneys had filed a class action lawsuit against AT&T saying it unlawfully opened its networks to the NSA.
Last summer, U.S. District Judge Vaughn Walker in San Francisco ruled that it could proceed.
The second case, Al-Haramain Islamic Foundation v. President Bush, is unique: it involves a classified document that the U.S. Treasury Department accidentally turned over to an attorney for the foundation. The top-secret document showed, according to the group, "Al-Haramain and its attorneys had been subjected to warrantless surveillance in violation of (federal law)."
They responded by filing another lawsuit in February 2006 alleging violations of the Foreign Intelligence Surveillance Act. The Justice Department says the Al-Haramain case must be thrown out because it, too, could endanger state secrets. The foundation's attorneys must not even be allowed to refer to it, government attorney Thomas Bondy said Wednesday, because their "mental recollections of the documents are also out of the case."
"I'm feeling like Alice in Wonderland," replied Judge M. Margaret McKeown. While no decision was announced Wednesday, and a final ruling might not be reached for months, a three-judge panel of the 9th Circuit pressed prosecutors to justify asking that the case be dismissed based on declarations submitted by senior Bush administration officials. (All three judges are Democratic appointees.) "The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"
The conversation occasionally took bizarre turns, such as when the attorneys and the judges knew the contents of confidential documents they had all reviewed--but could not discuss those contents in a courtroom with reporters and the public in the audience. Another odd twist was the repeated reference to the Bush administration's public claim that there is no widespread surveillance of Americans--meaning a kind of suspected electronic dragnet that would permit the NSA to sift through a large chunk of Internet communications. Last April, retired AT&T employee-turned-whistleblower Mark Klein described just that kind of arrangement at an AT&T switching facility in downtown San Francisco on Folsom Street.
Friday, April 4, 2008
Circuit Applies New Test for Declaratory Judgment
The Federal Circuit Court of Appeals recently reversed a district court’s dismissal of a declaratory judgment action, relying on the Supreme Court’s decision in MedImmune Inc. v. Genentech Inc., 127 S.Ct. 764 (2007). See Micron Technology, Inc. v. MOSAID Technologies, Inc., 2008 WL 540182 (Feb. 29, 2008)
Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.
MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.
After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers.
MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.
In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents. MOSAID later added one more defendant and three more patents to the Texas action.
MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.
Micron appealed and the Federal Circuit reversed.
The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.
In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.
Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.
MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.
After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers.
MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.
In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents. MOSAID later added one more defendant and three more patents to the Texas action.
MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.
Micron appealed and the Federal Circuit reversed.
The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.
In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.
Top Court Considers D.C. Handgun Ban
The U.S. Supreme Court heard oral arguments Tuesday in a challenge to a District of Columbia ban on handgun ownership, a case that may impact gun ownership rights nationwide. The specific question before the Court in Heller v. District of Columbia is whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.
The Los Angeles Times reports that the case has drawn national attention "because the Court may decide for the first time whether gun rights are truly protected by the Constitution, like the right to free speech and the right to freely practice one's religion." A Washington Post article finds that there is little in the public record to predict how the nine U.S. Supreme Court Justices will vote on proper interpretation of the Second Amendment. The Court is expected to issue a decision on the case by the end of June.
The Los Angeles Times reports that the case has drawn national attention "because the Court may decide for the first time whether gun rights are truly protected by the Constitution, like the right to free speech and the right to freely practice one's religion." A Washington Post article finds that there is little in the public record to predict how the nine U.S. Supreme Court Justices will vote on proper interpretation of the Second Amendment. The Court is expected to issue a decision on the case by the end of June.
Thursday, April 3, 2008
Hiring Lawyers by the Numbers
Many companies are instituting new policies for hiring outside counsel -- policies that are making some general counsel squirm and some law firm lawyers shudder.
Under pressure to control expenditures for legal services, general counsel are increasingly called upon to explain their outside counsel hiring practices and the resulting costs to their clients.
More important, while in the past the details of hiring decisions may have been left up to general counsel and their law departments, now many corporate employers are getting involved.
Some corporations are implementing policies that mandate that their procurement or purchasing departments become involved in every decision to outsource services -- including legal work -- says Ron Friedmann, president of Prism Legal Consultants Inc.
Some outside counsel say that this increased involvement by purchasing and procurement departments has resulted in a "commoditization" of legal services -- corporate clients purchasing legal services much like commodities.
"There's a movement right now, across the board, to pay the lowest price you possibly can," says Ed Hansen, a partner in the global outsourcing and technology practice at Morgan, Lewis & Bockius. "On the surface, it seems like a good idea, but companies aren't able to differentiate what's a commodity and what's not. You can't buy outsourcing services like you buy pencils."
Hansen calls outside counsel services "relationship-based contracting," and says those contracts can fail when the GCs need to work internally with management or departments like procurement or purchasing come between in-house and outside counsel.
THE CHALLENGE
"Unlike other portions of the company that can be easily measured and quantified, it's very difficult to quantify legal services," says Susan Hackett, general counsel of the Association of Corporate Counsel. Legal services have value beyond the billed hourly rate, although that value is tough to measure.
"How do you measure the troubles the company didn't experience?" says Hackett. "How do you prove the value of, 'We didn't have an SEC investigation this year'?"
Procurement or purchasing employees who are not part of the legal department may find it difficult to appreciate or even understand those values. They may also find it hard to differentiate between a straightforward legal task that could be performed by most corporate lawyers and one that requires involvement by a trusted legal adviser who may be familiar with the company's legal needs or who has particular expertise.
The procurement department is often brought in because some corporations understand that their attorneys aren't that great with numbers, budgets and purchasing, Friedmann says.
Management may think that attorneys tend not to negotiate legal costs and decide to step in. "When purchasing departments see how lawyers operate, they see low-hanging fruit," Friedmann says. For the cost-conscious company, legal services present an easy way to reduce costs.
Yet this focus on cost-cutting may threaten the trusted relationship between in-house counsel and outside attorneys.
"Securing outside counsel is such a personal decision," says Hansen, and involving procurement people in the process "is like using the procurement department to hire an employee." When costs are the deciding factor in hiring outside counsel, the value of hiring someone trusted and familiar to do the job -- not to mention someone whom the law department can work with -- is often discounted.
Hansen recalled a complex telecommunications deal for a large corporate client where he not only negotiated the original contract, but also renegotiated it two years later when the provider threatened the client with litigation.
Hansen successfully resolved the issue, even netting the client some money in the process. Yet when the contract was up for renewal, Hansen received a surprise: a request for proposal for legal services.
As part of its efforts to cut costs, the company required that outside counsel hiring decisions be made with the involvement of the procurement department. Hansen was outbid and replaced on the deal he had originally crafted by a lawyer whose bid was just 10 percent of Hansen's price for the job, despite corporate counsel's insistence that Hansen handle the contract and appeals to the chief information officer and a vice president to try to get him hired.
The contract at issue was ultimately renewed without much renegotiation.
Merely looking at costs is not always the best way to choose outside counsel, Hansen says. Procurement employees who don't have a legal background are often unable to differentiate between attorneys and may ultimately outsource to a new attorney without the skills and trust required for the job, simply on the basis of lower costs.
"A procurement group is not capable of differentiating between top players," Hansen says. "They don't understand that their skill sets need to be separated, and are also incapable of differentiating between top and bottom players."
Legal services are different from other services, Hansen adds, and while "a lot of legal work is in the nature of a commodity, the procurement groups can't differentiate." As a result, difficult, detailed or important cases may be outsourced to unqualified attorneys, even though they may require more seasoned or familiar outside counsel.
Hackett agrees that there's something different in what lawyers do, but said it's difficult to put a finger on what that difference is -- and even more difficult to put it into words and relay it to management.
Legal services are different from others because of the professional and ethical traditions that characterize the field, yet, "I don't see people always living up to that," said Hackett. "We need to rediscover what made us different in the first place."
THE SOLUTION
"One of the challenges is balancing how well the outside firm knows the company's business with how cost-effective they are overall," Friedmann says.
General counsel are in a unique -- and uniquely difficult -- position: Although they are obviously concerned with getting the best legal services possible, they also answer to management on costs, just like any other department.
"It's clear that corporations are increasingly looking at ways to save money, and law departments are cost centers and need to be managed as cost centers," Friedmann explains. "A forward-thinking general counsel should look to the purchasing department for help."
While procurement or purchasing department involvement with hiring outside counsel can lead to tension, savvy general counsel shouldn't ignore the purchasing department's interest and expertise. Rather, in-house counsel should work together to balance the company's cost-cutting needs with their preferences for outside counsel.
Hackett says coming up with unique models for comparing legal services might be the key to that balance.
"The 'counting pencils standard' doesn't apply, but that doesn't mean legal services don't need to be measured," Hackett says. "They just need to be measured differently."
General counsel should look for ways to quantify legal services that will steer the procurement department toward measuring results, not just costs.
Under pressure to control expenditures for legal services, general counsel are increasingly called upon to explain their outside counsel hiring practices and the resulting costs to their clients.
More important, while in the past the details of hiring decisions may have been left up to general counsel and their law departments, now many corporate employers are getting involved.
Some corporations are implementing policies that mandate that their procurement or purchasing departments become involved in every decision to outsource services -- including legal work -- says Ron Friedmann, president of Prism Legal Consultants Inc.
Some outside counsel say that this increased involvement by purchasing and procurement departments has resulted in a "commoditization" of legal services -- corporate clients purchasing legal services much like commodities.
"There's a movement right now, across the board, to pay the lowest price you possibly can," says Ed Hansen, a partner in the global outsourcing and technology practice at Morgan, Lewis & Bockius. "On the surface, it seems like a good idea, but companies aren't able to differentiate what's a commodity and what's not. You can't buy outsourcing services like you buy pencils."
Hansen calls outside counsel services "relationship-based contracting," and says those contracts can fail when the GCs need to work internally with management or departments like procurement or purchasing come between in-house and outside counsel.
THE CHALLENGE
"Unlike other portions of the company that can be easily measured and quantified, it's very difficult to quantify legal services," says Susan Hackett, general counsel of the Association of Corporate Counsel. Legal services have value beyond the billed hourly rate, although that value is tough to measure.
"How do you measure the troubles the company didn't experience?" says Hackett. "How do you prove the value of, 'We didn't have an SEC investigation this year'?"
Procurement or purchasing employees who are not part of the legal department may find it difficult to appreciate or even understand those values. They may also find it hard to differentiate between a straightforward legal task that could be performed by most corporate lawyers and one that requires involvement by a trusted legal adviser who may be familiar with the company's legal needs or who has particular expertise.
The procurement department is often brought in because some corporations understand that their attorneys aren't that great with numbers, budgets and purchasing, Friedmann says.
Management may think that attorneys tend not to negotiate legal costs and decide to step in. "When purchasing departments see how lawyers operate, they see low-hanging fruit," Friedmann says. For the cost-conscious company, legal services present an easy way to reduce costs.
Yet this focus on cost-cutting may threaten the trusted relationship between in-house counsel and outside attorneys.
"Securing outside counsel is such a personal decision," says Hansen, and involving procurement people in the process "is like using the procurement department to hire an employee." When costs are the deciding factor in hiring outside counsel, the value of hiring someone trusted and familiar to do the job -- not to mention someone whom the law department can work with -- is often discounted.
Hansen recalled a complex telecommunications deal for a large corporate client where he not only negotiated the original contract, but also renegotiated it two years later when the provider threatened the client with litigation.
Hansen successfully resolved the issue, even netting the client some money in the process. Yet when the contract was up for renewal, Hansen received a surprise: a request for proposal for legal services.
As part of its efforts to cut costs, the company required that outside counsel hiring decisions be made with the involvement of the procurement department. Hansen was outbid and replaced on the deal he had originally crafted by a lawyer whose bid was just 10 percent of Hansen's price for the job, despite corporate counsel's insistence that Hansen handle the contract and appeals to the chief information officer and a vice president to try to get him hired.
The contract at issue was ultimately renewed without much renegotiation.
Merely looking at costs is not always the best way to choose outside counsel, Hansen says. Procurement employees who don't have a legal background are often unable to differentiate between attorneys and may ultimately outsource to a new attorney without the skills and trust required for the job, simply on the basis of lower costs.
"A procurement group is not capable of differentiating between top players," Hansen says. "They don't understand that their skill sets need to be separated, and are also incapable of differentiating between top and bottom players."
Legal services are different from other services, Hansen adds, and while "a lot of legal work is in the nature of a commodity, the procurement groups can't differentiate." As a result, difficult, detailed or important cases may be outsourced to unqualified attorneys, even though they may require more seasoned or familiar outside counsel.
Hackett agrees that there's something different in what lawyers do, but said it's difficult to put a finger on what that difference is -- and even more difficult to put it into words and relay it to management.
Legal services are different from others because of the professional and ethical traditions that characterize the field, yet, "I don't see people always living up to that," said Hackett. "We need to rediscover what made us different in the first place."
THE SOLUTION
"One of the challenges is balancing how well the outside firm knows the company's business with how cost-effective they are overall," Friedmann says.
General counsel are in a unique -- and uniquely difficult -- position: Although they are obviously concerned with getting the best legal services possible, they also answer to management on costs, just like any other department.
"It's clear that corporations are increasingly looking at ways to save money, and law departments are cost centers and need to be managed as cost centers," Friedmann explains. "A forward-thinking general counsel should look to the purchasing department for help."
While procurement or purchasing department involvement with hiring outside counsel can lead to tension, savvy general counsel shouldn't ignore the purchasing department's interest and expertise. Rather, in-house counsel should work together to balance the company's cost-cutting needs with their preferences for outside counsel.
Hackett says coming up with unique models for comparing legal services might be the key to that balance.
"The 'counting pencils standard' doesn't apply, but that doesn't mean legal services don't need to be measured," Hackett says. "They just need to be measured differently."
General counsel should look for ways to quantify legal services that will steer the procurement department toward measuring results, not just costs.
Circuit Applies New Test for Declaratory Judgment
The Federal Circuit Court of Appeals recently reversed a district court’s dismissal of a declaratory judgment action, relying on the Supreme Court’s decision in MedImmune Inc. v. Genentech Inc., 127 S.Ct. 764 (2007). See Micron Technology, Inc. v. MOSAID Technologies, Inc., 2008 WL 540182 (Feb. 29, 2008)
Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.
MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.
After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers. MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.
In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents. MOSAID later added one more defendant and three more patents to the Texas action.
MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.
Micron appealed and the Federal Circuit reversed.
The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.
In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.
Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.
MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.
After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers. MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.
In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents. MOSAID later added one more defendant and three more patents to the Texas action.
MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.
Micron appealed and the Federal Circuit reversed.
The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.
In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.
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