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This week, we continue our written interview with Xaviere Giroud of Kirkland & Ellis’s Chicago office, regarding her experiences co-authoring what I believe will be a seminal exploration of how design patent litigation is conducted in the United States. Please see below for Xavi’s answers to my second and third questions regarding how she came to co-author the article with Professor David Schwartz of Northwestern Law, as well as her thoughts on what was illuminating about the data they reviewed regarding design patent litigation.

As usual, I have added some brief commentary to Xavi’s answers below but have otherwise presented her answers as she provided them.

GK: How did you come to co-author a piece on design patent litigation with one of your professors at Northwestern?

Northwestern offers a unique experience for third-year law students through the Senior Research Program. Students in the program work with a supervising professor to conduct a research project over the course of one semester or the entire school year. I took Professor Schwartz’s Intellectual Property Survey and Design Law courses during my first and second years at Northwestern, so I knew working with him for Senior Research would be a good fit. I asked if he would supervise a year-long Senior Research project and he accepted.

Professor Schwartz’s Design Law class sparked my interest in design patents, but I did not have the opportunity to explore them further during either of my summer associate experiences. For me, Senior Research was my chance to learn more about design patents. Initially I was interested in whether the phenomenon of nonpracticing entity, or patent troll, litigation existed with design patents. From there, Professor Schwartz and I collaborated on a list of different facets of litigation, like choice of venue and the size of the plaintiffs and defendants, to study for lawsuits where a design patent was involved, with the ultimate goal of determining the differences between utility and design patent litigation. I spent the first semester of the project almost wholly collecting and analyzing data and the second semester of the project finalizing the data and drafting the paper. The project has continued for myself and Professor Schwartz since I graduated from Northwestern Law through submitting the paper for publication and sharing our findings with others in the intellectual property law community.

GK: Again, we are grateful for the contribution the paper has made and it is not surprising that it is the result of a lot of hard work and dedication. It is also not surprising to me that despite Xavi’s interest in design patents — an inherently interesting subject, at least in my view — she was not exposed to design patent practice during her summer associate days. As I have said before, many patent litigators actually have little to no design patent enforcement experience. But that is changing, especially with respect to enforcement efforts on platforms like Amazon, where asserting design patents is often much easier than attempting to enforce a utility patent. Additionally, the fact that most design patents are enforced in a competitor context, as opposed to the increased market share that nonpracticing entity litigation commands on the utility patent side, illustrates the importance of IP litigators being prepared to approach design patent cases with increased care and a clear understanding of what is required for a successful result.

GK: What was the biggest thing you learned from looking at how design patent litigation really works?

The biggest takeaway from my research project with Professor Schwartz is that design patent litigation truly is different than utility patent litigation. Design patent litigation has been steadily growing since 2000, but the existing literature on patent litigation as a whole fails to provide a clear picture of design patent litigation and, as I learned from our study, we can’t apply our understanding of utility patent litigation to design patent litigation.

One of the most interesting parts of the study for me was collecting data on the size of the patent asserters and accused infringers based on their revenue. Each asserter and accused infringer was classified as small, medium, or large, and the pair was assigned a category based on whether a small company was asserting a patent against a large company or a large company had asserted a patent against another large company, for example. One might think that design patent litigation is mostly made up of battles between large companies, but the data reveals the opposite — the majority of design patent litigation is between small and medium-sized entities.

GK: If anyone had any doubt that design patent litigation differs significantly from utility patent litigation, I think even a cursory read of the paper will quickly disabuse them of that line of thinking. Take Xavi’s last observation as an example. The importance of design patents to relatively smaller companies is illustrated by the fact that most design patent litigation implicates competitors of similar size. Smaller entities will usually not have access to the same resources as larger companies to fund and sustain litigation, which contributes to the high consent judgment/settlement rate we see in design patent cases, a similarity they share with soft IP disputes, but less so with other types of patent litigation.

My thanks to Xavi for the insights and cooperation, and I wish her continued success in her budding career. It is always a privilege to hear from someone who has made an important contribution to our understanding of how IP litigation actually works, and I thank Xavi for agreeing to this interview. I am always open to conducting interviews of this type with other IP thought leaders, so feel free to reach out if you have a compelling perspective to offer.

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.

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.

Malnutrition is basically lack of nutrition, caused by not having enough to eat, not eating enough of the right things or being unable to use the food that one does eat.

Zimbabwe has been under lockdown to curb the spread of COVID-19 since March 30.

A perpetual tragedy is continually being played out in these United States, a long-reported, deadly tragedy in the form of no-knock police raids. For anyone who might not be aware, no-knock raids are a practice of forcible entry by police, without prior notification, into a place of residence. As everyone should expect, having a bunch of armed government agents regularly bursting into residences unannounced leads to a lot of deaths. The most recent reiteration of this perpetual tragedy resulted in the death of Breonna Taylor who was shot eight times by government officers conducting a no-knock raid.

The death of Taylor has all the outrageous elements of other past tragedies: 1) Neighbors reported the officers never identified themselves before bursting in and opening fire (a claim further supported by the fact the couple inside called the police out of a belief they were victims of a home invasion; 2) the police accounts are riddled with inconsistencies, and; 3) the warrant (which was obtained by Reason), for which the no-knock raid was authorized, on its face, appears to have violated the Fourth Amendment.

What is it about the no-knock warrant that made it such a blatant violation? In justifying their request for a no-knock raid specifically, the officers only cited “the nature of how these drug traffickers operate.” The problem is, the Supreme Court has specifically rejected this type of categorical justification for a no-knock warrant. Put simply, in order for a violent, highly dangerous no-knock warrant to be done in accordance with Fourth Amendment guarantees, it must identify specific circumstances illustrating why such actions must be taken against each suspect. Yet, again, the warrant used to authorize the no-knock raid against Taylor contained no specific “exigent circumstances.” It made only broad claims about an entire category of crimes.

What makes all of this even more horrifying is that the evidence that was used by the police to establish probable cause against Taylor for any form of search was shaky, at best. In fact, I would argue that no reliable evidence even remotely indicates Taylor was involved with drugs and that all available evidence prior to the raid indicated she was a model citizen. Moreover, the fact that no evidence was ultimately found indicating Taylor was involved in drug dealing only further corroborates the opinion that a grotesque error was made by the police.

Lest anyone think this type of flagrant violation, where a violent, no-knock raid is not only requested by police but signed off on by a judge despite little to no evidence of guilt is just an isolated incident. Journalist Radley Balko revealed in his investigation of the Little Rock Police Department that the same justifications used for obtaining a no-knock warrant in the Taylor case are commonly made in no-knock raids. Per Balko:

Every no-knock affidavit I reviewed included boilerplate language about exigent circumstances. Word for word, the detectives included the same verbiage about how drug dealers typically have access to guns and are inherently dangerous, and how the surprise tactics of a no-knock, dynamic entry will make it safer for the officers serving the warrant and everyone inside. And again, in 95 of the 103 no-knock warrants granted, the boilerplate language was all that the police relied upon to request — and receive — a no-knock warrant.

Yet, even though no-knock warrants commonly include violations of the Fourth Amendment, that fact does not matter much in the end and thus does not deter the police from executing them or judges from signing off. Again, as Balko has explained:

[T]he reason narcotics officers can get away with it goes back to another Supreme Court case — 2006’s Hudson v. Michigan. In that case, the court ruled 5 to 4 that … violations of the knock-and-announce rule would not result in the suppression of any evidence seized in the ensuing raid. In the majority opinion, Justice Antonin Scalia argued that there were other remedies for violations of the rule, such as civil liability (lawsuits) or internal professional discipline. As David Moran — the attorney who argued for the losing side in Hudson — told me, Scalia’s remedies have proven insufficient to deter these violations. And, in fact, those of us who were concerned about these sorts of raids predicted at the time that the court’s ruling in Hudson would result in, well, exactly what we’re now seeing[.]

So just what exactly do we have to show for this violent abuse of and disregard for Fourth Amendment rules? Only an expensive and ineffective prison-industrial complex and a steady supply of drugs that remains undisturbed by such violent draconian practices that are regularly spilling onto the innocent. And while some might point to recent Supreme Court cases such as Carpenter, Jardines, and Jones as evidence that a robust Fourth Amendment is making some sort of a comeback. I have to regrettably point out that such cases involve limits on warrantless searches that, while welcome, do nothing to address the absurdly abused standard by which warrants are regularly signed off on.

The good news, where it exists, is that social outrage is leading to (albeit extraordinarily rare) attempts at accountability, but also (gratefully) broader reforms when it comes to no-knock raids. Moreover, as the Ahmaud Arbery case has demonstrated, social outrage can be an effective tool to at least begin the process of correcting egregious, deadly harms. Social outrage is likely why Breonna Taylor’s boyfriend, Kenneth Walker, who was initially charged with attempted murder for firing at the officers who killed Taylor, had a grand jury refuse to indict him after the case gained notoriety. So, while we cannot expect the current legal system or judicial actors to save us, we can keep a powerful light shined on such tragedies and demanding both accountability and reform.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Year in and year out, we watch law firm after law firm pay lip service to their commitment to diversity in the legal profession, with promises to recruit, retain, and promote more minority attorneys. Despite these continued assurances, and despite the fact that a number of firms have made great efforts to improve the stature of their diverse hires in the law, there is still much more to be done. If there’s ever going to be any real change in the legal industry, diversity has to be more than just a buzzword — it must be a priority at every law firm.

According to the American Lawyer’s 2020 Diversity Scorecard — a ranking that tracks the average number of full-time-equivalent minority attorneys (both partners and nonpartners) at Am Law 200 and National Law Journal 250 law firms — there’s been some progress over the past year, but it’s been slight:

As in years past, the bulk of the minority representation at the top firms lies in their ranks of Asian and Hispanic attorneys. Black partners are vastly underrepresented among the top firms in the scorecard. …

Since 2010, the total share of minority attorneys included in the Diversity Scorecard grew by an average of 0.9 percent each year. This year did not buck the trend: The total share of minority attorneys grew by 0.9 percent, from 16.9 percent to 17.8 percent.

The firm that took top honors this year — Berry Appleman & Leiden — is a newcomer to the list, pushing Fragomen down to second place after a year as the nation’s most diverse firm. Overall, 71 firms had at least 20 percent minority attorneys (an improvement over last year’s numbers, which saw 55 firms meet that benchmark), and seven firms had at least 20 percent minority partners.

Half of Berry Appleman’s attorneys, 49.7 percent, identify as a racial minority, and 22.7 percent of the firm’s partnership are minority attorneys, according to ALM data. Berry Appleman did not respond to a request for comment.

The second-highest scoring firm—immigration shop Fragomen—reports that 35.1 percent of its head count is composed of minority attorneys. Fragomen did report a higher share of minority partners than Berry Appleman, 24.4 percent.

Which law firms are the best for diversity in 2020? Here are the Top 25:

1. Berry Appleman
2. Fragomen
3. Wood Smith
4. White & Case
5. Kobre & Kim
6. Fenwick
7. Cleary Gottlieb
8. Wilson Sonsini
9. Best
10. Morrison & Foerster
11. Curtis
11. Procopio Cory
13. Munger Tolles
14. Irell
15. Debevoise
16. Paul Hastings
17. Knobbe Martens
18. Kasowitz
19. Orrick
20. Finnegan
21. Hanson Bridgett
22. Paul Weiss
23. Fish
24. Davis Polk
25. O’Melveny

Check out the full rankings, as well as a breakout of demographics, at Law.com.

Congratulations to all of the Biglaw firms that are doing their part to move the needle on diversity. For all other firms, the pressure is on to do better — and fast.

The 2020 Diversity Scorecard: Rankings and Demographic Leaders
[American Lawyer]
The 2020 Diversity Scorecard Shows Progress, but It’s More Precarious Than Ever [American Lawyer]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The Biglaw price tag is not for the faint of heart. For a while now, the rates for the best Biglaw partners have been over $1,000 an hour, with the top rates at the $2,000 mark. It’s enough to give anyone sticker shock.

But the truth is, it has become increasingly common to have the partners on big cases or deals billing at four-figure rates. The new hotness, as bankruptcy filings have revealed, is charging north of $1,000 for associates.

So, that’s what (senior) associates are really worth at top law firms.

According to Law.com, at least three Biglaw firms have crossed that rubicon. Kirkland & Ellis associates bill up to $1,125 per hour, as disclosed in the Biglaw giant’s work in the Barney’s New York bankruptcy. Skadden, Arps, Slate, Meagher & Flom revealed their $1,000+ associate price tag in the McClatchy newspaper bankruptcy. And in the J. Crew bankruptcy filings, Weil, Gotshal & Manges disclosed associate billing rates in the range of $595 to $1,050.

And you know if these three firms are charging $1,000+ for associates, so are other elite firms.

I guess an unexpected silver lining (albeit a small one) of the rash of bankruptcies we are seeing (and expect to see) is casting more light on the realities of Biglaw billing rates.

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).

* A New Jersey judge has ordered a local gym to remain closed for the time being. Guess “gym, tan, laundry” is currently impossible in the Garden State. [NewJersey.com]

* The FBI is reportedly evaluating whether the the shooting of Ahmaud Arbery was a hate crime. [Seattle Times]

* President Trump has said that Jeff Sessions was not “mentally qualified” to be Attorney General. [Guardian]

* A Texas criminal defense lawyer has been arrested for trying to hire an undercover cop to commit murder. [Daily Mail]

* As many of us Empire State lawyers know from firsthand experience, the COVID-19 pandemic has taken a huge toll on everyone involved with the New York courts system. [Daily News]

* A Vermont attorney who pointed a gun at a store clerk due to social distancing restrictions has been suspended from practice. [CBS News]

* Mets pitcher Noah Syndergraard is being sued by his landlord for missing payments on his $27,000-a-month New York City duplex. Maybe Syndergraard qualifies for unemployment while the Mets aren’t playing, but don’t think it’ll cover his rent… [Yahoo News]

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.

22 May 2020 marks the seventh year of the coming into force of the
Constitution, the highest law that was approved by the majority of
Zimbabweans who voted in the constitutional referendum held in March
2013.

For ZLHR, the seventh anniversary of the Constitution being in 2020 is
not just symbolic but an important opportunity to assess progress in
the implementation of the Constitution, take stock of the achievements
made, the lessons learnt and the challenges that lie ahead in
enhancing a critical foundation to incrementally nurture a democracy
in Zimbabwe.

The enactment of the Constitution was premised on facilitating a
constitutional journey from the shame of the country’s past to the
promise of the future which delivers on its democratic promise and
transformative aspirations.

Since its adoption in 2013, the Constitution has become a symbol of
the hopes and aspirations of Zimbabweans and some citizens have sought
to assert their fundamental rights and freedoms as enshrined in the
‘Declaration of Rights’ and held state and non-state actors to account
for their transgressions in fulfilling their constitutional
obligations.

While the coming into effect seven years ago of the Constitution
signalled the dawn of a new era and a break with the past, an
assessment by ZLHR over the past seven years shows that the “new”
Governance Charter is just a paper tiger as authorities remain
reluctant to fully implement it and continue to wilfully violate its
progressive provisions.
More concerning for ZLHR are the commonplace contraventions of the
Constitution by duty-bearers, with continuing impunity.

Although some laws have been amended or promulgated to align or comply
with the Constitution, a number of gaps still exist.

Of great concern to ZLHR is government’s increasing reliance on
governing through promulgation of subsidiary legislation contained in
a record Statutory Instruments promulgated during the era of the
so-called “new dispensation”.

ZLHR is disconcerted that the Constitution is already being amended
for the second time with the gazetting of Constitutional Amendment
(No.2) Bill 2019, that seeks to consolidate the power of the President
and erode the power of the legislature to effectively exercise checks
and balances on the Executive in certain matters and also has negative
implications on the independence of the judiciary and the
Prosecutor-General amongst other issues.

This rapid amendment of 27 sections of the Constitution is not
reasonably justifiable and undermines the national objectives set out
in Chapter 2 of the Constitution.

It is worrying and shocking that law enforcement authorities continue
to misinterpret and selectively misapply laws to suppress people’s
fundamental freedoms and rights while citizens are brutalised,
abducted, disappeared and tortured in violation of their right to
personal security, the right to human dignity and freedom from torture
or cruel, inhuman or degrading treatment or punishment.

Local authorities and central government continue to contravene
fundamental protections of freedoms and rights to property, freedom of
profession, trade and occupation, provision of health care services,
potable water, and freedom from arbitrary eviction.

ZLHR holds the President of Zimbabwe, including the Ministry of
Justice, Legal and Parliamentary Affairs and other line ministries
accountable for failing in executing their primary responsibility of
ensuring that the Constitution is respected, protected and fully
enforced. These primary duty-bearers must act in a manner that
respects, protects, and upholds the principles and values for which
people voted.

ZLHR wishes to remind the Executive, of the voluntary commitments the
twenty-six (26) member delegation made on behalf of the Government of
Zimbabwe in November 2016, during the United Nations Human Rights
Council Universal Periodic Review during the session that was held in
Geneva, Switzerland. The ‘26-member government delegation’ was led by
the incumbent President, His Excellency Emmerson Dambudzo Mnangagwa,
in his capacity as the Minister of Justice, Legal and Parliamentary
Affairs at that time.

As provided in the Working Group Report during the 34th Session, it is
reported that the Zimbabwe delegation accepted most (noting a few)
recommendations on the Constitution from the following countries;
Australia, Czechia, Egypt, France, German, Ghana, Iran, Ireland,
Italy, Kenya, Netherlands, New Zealand, Republic of Congo, Republic of
Korea, South Africa, Spain, Sweden, Switzerland, Thailand, Togo,
Uganda and United Kingdom. These United Nations (UN) member states
encouraged Zimbabwe to align laws with Constitution, fully implement
and comply with the Constitution.

On its part, over the years, Zimbabwe has also proposed 190
recommendations to other UN member states that have come under review
during the Universal Periodic Review Mechanism. This process is a peer
to peer review by countries on state of compliance with UN human
rights obligations.

On its part, ZLHR will keep demanding enforcement and accountability
for the actions or non-actions of those with obligations to ensure
government’s adherence to the principles of constitutionalism, respect
for the rule of law and human rights treaty obligations. Honest and
firm compliance, respect for constitutionalism and political will is
required if people are to be empowered to assert their constitutional
rights and freedoms.

Therefore, ZLHR calls on the government to;

•    Take urgent action to align the country’s laws with the Constitution
and to make the vision a reality.

•    Urgently implement outstanding legislative reforms and harmonise
laws to the Constitution.

•    Ensure that the attitudes, conduct and behaviour of all state
officials and agencies conform to the standards set out in the
Constitution and that non-state actors are also held to account where
they fail to respect and uphold the Constitution.

•    Foster a culture of constitutionalism through respect for the
supremacy of the Constitution.

•    Ensure that all security services members comply with the provisions
of section 208 of the Constitution which prescribes their conduct and
foster harmony and understanding between them and civilians.