Author: TSA Press

* Lawyers who represent Hunter Biden in a paternity case filed against him in Arkansas have asked a court to withdraw from the case. [Arkansas Times]

* Attorney General Barr is at odds with the Justice Department’s Inspector General over key findings concerning the FBI’s Russia investigation. [Washington Post]

* Comedian Pete Davidson is allegedly requiring audience-members to sign $1 Million non-disclosure agreements to see his show. Leaving aside how wild this practice is, news outlets have already begun to cast doubt on the enforceability of such agreements. [Variety]

* Allan Dershowitz is hoping to utilize the fact that David Boies seriously considered that a fraudster had sex videos of public figures to make claims in his own Jeffrey Epstein-related lawsuit. [Miami Herald]

* A U.S. Attorney has stated that there is more that will be revealed about the disappearance of Jimmy Hoffa after being asked about Martin Scorsese’s new film The Irishman. Isn’t it settled that he’s buried under Giants Stadium or something? [Detroit Free Press]

* Allan Gerson, the lawyer who counseled victims of the Lockerbie bombings and pioneered lawsuits against foreign governments, has passed away. [Washington Post]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

There is always something exciting about encountering an entrepreneur interested in building a technology product of interest to IP lawyers and their clients. Especially when that entrepreneur brings an outsider’s perspective to the task at hand. In that vein, I consider myself fortunate to have been introduced to Steven Hafif, creator of an improved patent marketplace and search engine, Cypris. That introduction came by way of a client and patent owner earlier this year, who was excited to share the fact that they had been invited to invest in a new patent-focused tech startup. After I had a chance to meet with Hafif in person, I, too, felt that there was great potential in what he was trying to build with Cypris. (In the interest of disclosure, while I have consulted with Cypris on an informational basis, I have no role with company and have not received any compensation from Cypris for that consulting.)

A few things stood out to me about Hafif and his approach. First, it was immediately clear to me that he and his tech team were serious about studying the existing offerings in terms of patent search (primarily the USPTO website and Google Patents) and online patent marketplaces — with the goal of improving on them. Second, it was exciting to see a younger entrepreneur with a data analytics background approach the patent ecosystem with fresh eyes, particularly with respect to learning about the factors that contribute to patent-based transactions. In that vein, I was impressed to hear that Hafif had very quickly made inroads into the university tech transfer community, with a real possibility (at that early point) that Cypris’ marketplace would be able to offer research university-sourced patents to interested licensees or acquirors. In my view, those types of patents are underrepresented in the patent transactions space, so if Cypris could bring that rare patent liquidity to the market it could very quickly differentiate favorably from other online patent marketplaces.

Due to the dedicated efforts of Hafif and his team, Cypris recently announced its launch. The site, full of interesting features for both those interested in patent transactions as well as those interested in more robust patent search functionality, is really worth a look. Impressively, Cypris also launched with over 100 patents available for sale or license, including listings by a number of prominent research universities — with the promise of more to come.

Overall, I think the IP community benefits when new products and services are created — with Cypris serving as a great example of what can be accomplished in a relatively short time with the right mix of funding, tech expertise, and market research. I am glad, therefore, to present a written interview with Cypris’ founder, who approached the IP space as an outsider but has already built a tool of value for our community. As usual, I have added some brief commentary to the answers below and in next week’s installment, but have otherwise presented Steve’s answers as he provided them.

GK: What was the biggest lesson you took from your angel fundraising round?

SH: Over the course of my seed round, I pitched and interviewed over 70 individuals, most of whom were CEOs at large organizations within the manufacturing and technology sector, along with a few angel and venture investors. I was amazed to find that most have never heard of the patent marketplace model or even had any interactions within the patent exchange economy, even though almost all were patent owners or were actively trying to invest in IP. It was immediately clear that there was a failure to market these exchanges to the broader patent owner and buyer/licensee market, in addition to a lack of innovative startups and technologically advanced tools within the space. One of our objectives at Cypris is to expand the reach of the patent exchange market and build a tool to provide easy access to the patent marketplace for all. 

I believe our platform meets the criteria of simple to use yet robust in utility. Cypris suits the needs of patent researchers interested in identifying recent patent grants along with presenting patent listings in a clear and concise manner. I believe a defining characteristic that truly sets Cypris apart is its design. Apart from Google Patents, I don’t believe there is a public search tool that presents patents and patent listings in the way that we do. Our search engine is seeing growing daily active users with extraordinarily long session times, which in effect is leading to more visibility on our listings. This combination of a patent search tool and marketplace creates natural and relevant visibility on patent listings, which is the ultimate goal.

GK: It is important for us to remember that not everyone interested in patents is an IP professional. While procuring competent IP counsel is always a must for anyone spending any money on patents, there is value in tools that allow anyone interested in patents to interact with them in a more robust way. At the same time, Hafif’s observations about the general lack of understanding in the business community — even among sophisticated potential investors — of how patent transactions can be facilitated by patent marketplaces should serve as a wake-up call to patent owners of all stripes. Hopefully, tools like Cypris and increased outreach by IP professionals to the business community will help matters.

Next week, I will conclude my interview with Steve Hafif, focusing on what Cypris is doing to shake up the patent marketplace model.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

DC office of an AmLaw 50 is seeking two junior litigators.

This firm’s litigation group is a global powerhouse and it is recognized as one of the world’s premier places to practice.

If you have at least one year experience with a large firm, a desire to litigate a wide variety of complex issues, then this could be the right job for you.

To apply submit your resume to jobs@kinneyrecruiting.com.

Getting a phone call from someone’s compliance or general counsel’s office acknowledging some technical violation of the rules is instantly one of the best days in any regulator’s year. A fine, however modest, can be assessed, indicating one’s effectiveness, without recourse to a tedious investigation, unpleasant negotiations with lawyers who are quite frankly better than you or having to convince judge or jury of the justness of your cause, however thin the evidence. Even FINRA manages to not screw it up (usually), and everyone’s very happy to look like their doing something without actually doing anything.

“The more things change, the more they stay the same,” goes the epigram attributed to 19th century French writer Jean-Baptiste Alphonse Karr. I could not help but think of that as I reviewed the results of the 2019 Legal Technology Survey Report produced by the American Bar Association’s Legal Technology Resource Center.

For all the development and innovation we have seen in legal technology in recent years, some legacy technologies stubbornly stick around. Here are five technologies that you might have thought were dead within law practice but that, according to the survey, are still being used by lawyers.

1. Books

Never before have legal professionals had access to such a wealth of online research materials. From paid services to free ones, from established providers to innovative startups, we have an array of tools available to us for virtually any legal research task.

Given this, you may be surprised to learn that print materials are still widely used for legal research. According to the survey, 44% of lawyers say they use print materials for research regularly, and another 32% say they use them occasionally. Only 5% of lawyers say they never use print materials.

Even more surprising, when lawyers were asked the resource they turn to first when starting a research project, 7% answered print materials. This was only slightly behind the 10% who said they start with a bar-sponsored free research service such as Fastcase or Casemaker.

As you might expect, age is a factor here. Lawyers over 60 are more likely than younger lawyers to regularly use print materials. Fifty-three percent of those over 60 regularly use print materials, compared to 29% under 40.

2. CD-ROMs

In the early days of what was then called computer-assisted legal research, when computers were slow and Internet connections even slower, legal research companies often delivered their materials to lawyers on CD-ROMs. But as online legal research flourished, research via CD-ROMs became all-but obsolete.

“All-but” being the operative phrase. According to the survey, 6% of hangers-on still regularly use CD-ROMs. Solos are most likely to use CD-ROMs, but even at the largest firms, 4% of lawyers still regularly use them.

But the CD-ROM may be close to its last breath. Nearly half of lawyers (48%) say they never use CD-ROMs for legal research and 29% say they seldom do.

3. Fax

The fax machine is like that nagging cough that persists long after your flu symptoms have subsided. There is no rational explanation for why the legal profession continues to use the fax, and yet it does, in surprisingly large numbers.

According to the survey, more than three-quarters of firms (77%) still use the fax as a form of communications software. That number has not changed over the survey’s past three years and has actually gone up since the 2016 survey, when it was 70%. Among individual attorneys, 43% say they personally use the fax for law-related tasks.

In fairness, it appears that the bulk of those who are sending and receiving faxes are doing so via electronic fax software, with the most popular software brand being eFax, used by 57% of lawyers. The survey makes no mention of the legacy fax machines that were once ubiquitous in law offices, so it offers no insight into the extent to which they are still used.

4. BlackBerrys

It sometimes seems as if every lawyer has an iPhone, and the survey confirms this. When asked what smartphone they use, 79% answered iPhone and 18% answered Android. Two percent do not use a smartphone.

But a small sliver of loyalists sticks to a BlackBerry. According to the survey, BlackBerry remains the smartphone of choice for 1% of lawyers.

It was not long ago that BlackBerrys seemed ubiquitous among lawyers, especially among lawyers at large firms. But its decline was precipitous. In 2011, 40% of lawyers used a BlackBerry. By 2013, that had dropped to 16%, by 2016, to 3%, and now, to 1%.

5. WordPerfect

Another product that once dominated the legal market is WordPerfect. In the late 1980s and early 1990s, you would be hard-pressed to find a lawyer who was not using WordPerfect (at least among the lawyers who were using computers). But from the mid-1990s on, lawyers’ loyalty began to shift to Microsoft Office and Microsoft Word.

Aficionados will debate what caused WordPerfect’s demise. Some say it was Microsoft’s monopolistic tactics. Others blame it on WordPerfect’s failure to smoothly transition from DOS to Windows. Whatever the cause, Word is now the legal profession’s word processor of choice. According to the survey, 98% of lawyers say that Word is available to them at their firm.

But guess what? WordPerfect is still alive and kicking. Eighteen percent of lawyers in the survey said that WordPerfect is available at their firms. That is more than offer access to Google Docs, which just 9% of lawyers said their firms offer. Note that the survey question was not whether the lawyer personally used WordPerfect but whether the software was available at the lawyer’s firm.

In addition, when lawyers were asked what software they use for PDF creation, 14% answered WordPerfect — almost as many as use Power PDF (15%). The same percentage of lawyers said that they use WordPerfect as their redlining software, second to Word (86%) and ahead of CompareRite (10%).

Which, by the way, should be sixth on this list. LexisNexis retired CompareRite in 2002, yet 10% of lawyers still use it.

Some of us spend a lot of time talking about the law office of the future. But the Legal Technology Survey Report raises the specter of the law office of the past. Somewhere out there, a lawyer is picking up a book, sending off a fax, loading a CD-ROM, pecking keys on a BlackBerry, and rejoicing in WordPerfect’s much-vaunted Reveal Codes.

Plus ça change!

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

Just for context:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Barbara Lentz was a legal writing professor at Wake Forest University School of Law since 2000, but her contract was not renewed in September of 2018. In a lawsuit, Lentz alleges she was let go due to discrimination based on her age, gender, and medical condition.

Lentz alleges that she taught 15 different classes over the course of her employment at Wake, including doctrinal classes such as Contracts. However, she alleges that she was paid less for her teaching hours, something the university allegedly justified as the difference between legal writing class hours and doctrinal ones. But when Lentz stepped up to teach doctrinal classes, while she got a bump in pay, the complaint alleges it was less than the usual amount paid for doctrinal classes. According to the complaint, there were multiple points during her time at Wake when she was paid less than male counterparts.

Lentz says the only formal review of her performance was after she revamped the way Contracts was taught and received the 2018 Innovation in Teaching Award by Wake Forest University, and that review was understandably exemplary. However, Lentz says that she asked numerous times over the years to have her pay explained, but was brushed off and told her performance was “vaguely inadequate.” The complaint then details a specific incident when Lentz received a negative performance review because she didn’t smile enough:

Following Plaintiff’s request to have her pay explained, each year for several years, Defendant held a meeting with [then Associate Dean Suzanne] Reynolds and Plaintiff (and occasionally others who supervised Plaintiff) where Plaintiff was told her performance was vaguely inadequate, but these were pre textual assertions designed to retaliate against, buy, and intimidate Plaintiff. No document was ever produced or reviewed, no performance plan was ever discussed, no review of Plaintiff’s teaching and service was made until the exemplary review in April 2018. For example, one year Reynolds informed Plaintiff, reading from a one-inch post-it on Reynolds’s finger, that Plaintiff’s performance was somehow subpar because Plaintiff had not smiled on one occasion in the hallway. Defendant did not produce a copy of the post-it when Plaintiff requested copies of all materials.

She also says that when she was promised a five-year contract in 2015, it was delayed and never put in writing, saying, “Defendant’s practice with plaintiff was to make a promise of employment, but then refuse to provide a timely written agreement of the agreed upon terms.”

Lentz also alleges she was wrongfully discharged under the Americans With Disabilities Act and Family Medical Leave Act. In 2018, she was diagnosed with hypertension as well as other medical issues that caused her to miss orientation week for that semester, which she says was the impetus for the school terminating her employment.

When reached for comment, a Wake Forest spokesperson said they are unable to comment on pending litigation.

Read the full complaint on the next page.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The Supreme Court heard oral argument today in New York State Rifle & Pistol Association v. City of New York and… it’s going to be okay. This is the first gun case the Court has heard in a decade. In the last one, D.C. v Heller, Justice Antonin Scalia invented an entirely new gun right: A personal right to keep a firearm in the home for self-defense. Many were worried that the Court might use NYS Rifle to create a new gun right for outside the home. But there seemed to be little appetite at oral argument to do that.

Instead, the case will likely turn on mootness. New York State had a permitting regulation that the gun lobby complained about. Likely fearing what an aggressive, conservative Court would do to the very concept of state regulations of firearms, New York changed the law. Still, the gun lobby pressed its case. Shockingly, the Supreme Court agreed to hear it, but today was all about how they probably shouldn’t have. From CNBC:

Paul Clement, who argued on behalf of three gun owners in New York and a state affiliate of the National Rifle Association, argued that the case was still active because his clients could potentially seek monetary damages in the future.

Clement also argued that even under New York’s new regulations, his clients could still be penalized if they did not travel directly to a firing range outside the city, such as if they stopped for coffee.

But Richard Dearing, an attorney for New York, said that the city guaranteed that gun owners would not be prosecuted for such stops. And he said that any challenge to the new regulations would have to be argued in a future battle.

“There may be a controversy here. But it’s a new controversy that will have to be litigated in a new case,” Dearing said.

Justices Samuel Alito and Neil Gorsuch seemed hot to get to the merits of the case, instead of mootness. But alleged attempted rapist Brett Kavanaugh pulled a Clarence Thomas and rendered himself mute during the arguments. Arguably, this case isn’t even in front of the Court without Kavanaugh. I’m guessing he was the fourth vote to grant cert in this case. But his unusual silence suggests that even he is unsure if this is the right case to upend the regulator power of the states.

Don’t be fooled, there will be a case this Court will find to continue its pro-death reading of the Second Amendment. This just never seemed like the right one. Not with John Roberts, who loves to punt cases, still there as a critical fifth vote.

I still can’t tell you why the Court decided to hear such an obviously moot issue. And, therefore, I could still be surprised by the ruling. But, based on the readout from oral arguments, it sure seems like the moot case will be ruled moot, perhaps with Alito writing some kind of threatening concurrence warning states that any attempt by the states to protect themselves from gun violence will be met with retribution from the Supreme Court.

For now, I consider this bullet, dodged.

Supreme Court shows little appetite for expanding gun rights in arguments over repealed New York regulation [CNBC]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.