Professor Tom Field's latest column is the current cover story on IP Frontline, the online magazine of intellectual property and technology.

Read his column, Tafas v. Dudas: Elephants in Mouseholes >>

On Tuesday, April 15th, Professor Ashlyn Lembree wil be giving a workshop for visual artists on how they can safeguard their work. Participants will learn about intellectual property protection and how it can affect an artist's work and business.

The workshop is sponsored by the New Hampshire State Council on the Arts and Microcredit NH.

In hearing Washington DC v. Heller this week, for the first time in decades the US Supreme Court has the chance to define once and for all “the right to bear arms.” The case stems from a controversial ban on guns in D.C., which has made its way through court after court. And now, groups on both sides of the gun issue eagerly await the Justices’ ruling expected in June.

NPR asked Professor Albert "Buzz" Scherr to help put the case, and the Second Amendment, in context, in an appearance on The Exchange, hosted by Laura Knoy.

The text of the Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Why does the amendment open with the clause about the necessity of a miliitia? What did the founders mean by the word militia? Who, exactly, were they referring to with the word people? Did the founders intend to protect an individual's right or a state's right from being superseded by federal authority?

Listen to the program at NHPR to find out.

Professor Buzz Scherr recently chaired a retreat for the American Civil Liberties Union's Patents and Civil Liberties Committee.  Professor Scherr is the chair of the committee and the New Hampshire representative to the ACLU's Board of Directors. Other members of the Committee include three more current or former ACLU Board members, a patent law professor, a genetics and law professor, the ACLU's science advisor, and a senior staff lawyer. 

Some readers may be thinking: copyrights and trademarks can raise First Amendment concerns, but what do patents have to do with civil liberties? There are significant free speech, equal protection, and privacy issues raised by the way certain patents have been used or could potentially be used. Because patents give the owner the right to exclude others from making or using the patented invention, even in a non-commercial sense, any patent can be used to suppress scientific inquiry during its lifetime. Some patents create further issues.

For example, the use of the heart drug Bidil specifically on African-Americans is patented, which brings up a possibility of discrimination. However, not everyone believes tailoring drugs to demographic groups is discriminatory. Some have welcomed it as a change from the more traditional focus on developing medicine with only the needs of Caucasian men in mind. 

In Laboratory Corp. v. Metabolite Laboratories, free speech concerns were raised by a patent on the correlation between an amino acid called homocysteine in the blood and a vitamin B deficiency. Under the patent owned by Metabolite, doctors could be liable for patent infringement just for making use of the correlation in their treatment decisions. 

 Other thorny questions about patents and civil liberties include the creation of transgenic creatures which have human genes. The Patent and Trademark Office has stated that it will not patent any "invention" which is human, but the threshold for being human is unclear, and a patent on a too-human invention would amount to slavery. Genetic databases, human experiments, and organ donation are also areas the Committee is keeping track of. The ACLU takes 2-3 years to form an official position on an issue, and has not yet reached a position on any of the questions being examined by the Patents and Civil Liberties Committee. 

 

 

The Concord Monitor reports this morning on the concerns raised over the wording of the latest version of the school funding amendment that is before the New Hampshire legislature, turning to Richard Hesse for an explanation:

"The clear intention was to remove the court and the higher standards the court applies," said Richard Hesse, professor emeritus at Franklin Pierce Law Center, who was involved in the Claremont cases on behalf of the plaintiffs. With the amendment in place, lawmakers "would have to do something so outlandish and so unreasonable before there was any basis for judicial intervention."

The amendment passed the State Senate yesterday and now moves to the House for consideration. 

Forbes magazine takes note of a recent law review article co-authored by Professor Stephen Black: 

But They Still Top Death

A new academic study argues that family limited partnerships are based on "myths" and really not worth the trouble. Writing in the University of Memphis Law Review, Katherine D. Black, Stephen T. Black and Michael D. Black say the popular estate planning tool can beget family discord, limited management flexibility, successful irs challenges of claimed valuation discounts, higher taxes and "potential malpractice liability" for estate planners who don't know all the complicated rules. Conclusion: "flps are not what they appear to be."

 

In his latest column in IP Frontline, Professor Field is joined by Pierce Law student Casey Parks to examine Quanta Computer v. LG Electronics, argued before the Supreme Court on January 16.

"At the most basic level, the question might be framed as: When, if ever, may patent owners retain, by contract, rights otherwise implicitly exhausted by sale?"

Read the complete column at IP Frontline.

Bankruptcy law expert Professor Peter Wright, director of clinical programs at Pierce Law, explains to the Union Leader that clients who are already facing foreclosure often cannot pay legal fees.

Fighting Mortgage Disservice
By Shawne K. Wickham, Union Leader

Peter Wright is director of clinical programs at Franklin Pierce Law Center in Concord, which offers free legal help to low-income individuals.

He said he recently obtained a court order in a bankruptcy case to force Countrywide to provide a complete accounting of the fees and penalties the company had assessed against his client. "And finally -- finally -- they sent the figures out, and they admitted they made a mistake."

But it took five months to reach that point, Wright said. "If I was billing the client, it could easily have been over $2,000," he said. "You're already having trouble with the mortgage. Who can afford $2,000 to arm-wrestle the servicers over these bogus charges?"

 

Professor Albert "Buzz" Scherr, Pierce Law's criminal law expert, tells the Associated Press that New Hampshire has a two pronged test to determine whether a defendant is not guilty by reason of insanity. Read the full story: 

Insanity pleas rare, usually unsuccessful in NH murder cases
Associated Press 

Albert Scherr, a professor at Franklin Pierce Law Center... said New Hampshire law uses a two-pronged test to determine whether a defendant is not guilty by reason of insanity.

First, the defense must show that the defendant suffered from a mental disease or defect. Then, it must show that the murder was a product of that disease or defect.

Neither "mental disease" nor "defect" has been defined by the New Hampshire Legislature or the courts, Scherr said, which empowers juries more than in other states where there are elaborate definitions.

 

As many members of the Pierce Law community know, Professor Karl Jorda was recently inducted into the Intellectual Property Hall of Fame. What does it take to make it into the IP Hall of Fame?  Professor Jorda answered a few questions about his experiences as an IP attorney in over three decades of corporate practice and 18 years in academia.
Unlike many chief IP counsels, Jorda kept his own patent docket so he would be aware of what the attorneys under his supervision were facing in dealing with the USPTO. 
Jorda says the most interesting problem he worked on during his corporate practice was the protection of atrazine while at Ciba-Geigy, which required the use of patents, trade secrets, and trademarks. Because other chemicals of the same genus were prior art, Ciba-Geigy patented only atrazine's use as an herbicide, not the compound itself. This is generally considered an inferior method of protecting an invention, but during the 17-year term of the patent, none of the company's competitors were able to invalidate the patent or invent around it, despite sales levels which inspired many attempts to do so. Ciba-Geigy further patented many of the processes used to produce atrazine, so competitors could not produce it as efficiently when the patent expired. Some of these patents were on the computer programs that ran the factories used to produce atrazine, and they were granted even though computer programs were not as widely acknowledged to be patentable as they are now. Ciba-Geigy kept other portions of its processes secret, which almost became problematic when seven patents were issued to an Italian company on the processes. A prior user who kept an invention secret still has the right to use it after a patent is issued to someone else, but proving prior use can be costly and time-consuming. Rather than go through the legal battles, Ciba-Geigy simply bought the Italian company. Like all patents, the one covering atrazine eventually expired. Because atrazine was a brand name rather than a chemical name, the owner of the name would normally be the only company allowed to sell atrazine under that name. But it sold so well during the life of the patent that by the time it ended, atrazine was recognized as a generic term, so Ciba-Geigy had to invent a new trademark, Aatrex, to sell it under.
That was all in the distant past. Jorda has been a professor for the last 18 years and has given over 300 talks during that time, about 1/3 of them on licensing and technology transfer. He says his greatest contribution to IP scholarship is teaching students practical skills they can actually use. Case in point: About six weeks into a former student's career, the student contacted Prof. Jorda and told him that a partner at the student's firm had told him he was working at the level of a 3rd or 4th year associate, which he attributed to the skills taught in Prof. Jorda's classes and others taught at Pierce Law.

Professors Bill Hennessey and Mary Wong recently participated in The Fourth International Conference on the Intellectual Property Protection of High Technology, held in Beijing, China. The conference, organized by Prof. Hennessey, Wang Bing of Tsinghua Law School (China), and Jane Clark of Gowlings, LLP (Canada) has been held biennially since 2001. Others from Pierce Law who have attended include Dean Hutson in 2001 and Professor Karen Hersey in 2003. Approximately 80 people attended the conference this year. Professor Wong believes that the smaller size allows for better discussions than some of the previous, much larger conferences she has attended, because there is time for people to do more than network. Professor Hennesseyspoke about issues relating to patent protection of software in 2001, 2005, and 2007, and research exceptions to patent protection in 2003. His talk this year was entitled "Recent Developments at the US Court of Appeals for the Federal Circuit (CAFC) on Patentable Subject Matter". It focused on the issue of whether business methods need to be incorporated into a computer program or technological device to be patentable, and the fact that the CAFC is becoming stricter in its decisions about what constitutes patentable subject matter in light of several decisions overturned by the Supreme Court. Recent cases in evidence of the trend toward more restrictive definitions of patentable subject matter include In re Comiskey, In re Nuijten, and AT&T v. Microsoft.
Professor Wong's speech, "ISP 'Safe Harbors'" focused on protecting Internet Service Providers from liability for infringement of intellectual property rights (especially copyrights) by their users. Key issues are the lack of international uniformity in standards, lack of clarity about who is an ISP due to increased services offered by traditional ISPs and other organizations, and when ISPs should be liable for infringement of intellectual property rights by their users.

Arnie Arneson will talk with Professor Temple about the death penalty on this Sunday's edition of the weekly New Hampshire politics program, Political Chowder. The program will be broadcast at 11:00 AM Sunday, August 19th on WZMY-TV. The video will be posted shortly thereafter at the Political Chowder web site.

The segment on the death penalty is scheduled to be the last third of the program.