Category: News Feeds

One of my favorite things about writing this column is the ability it affords me to discuss interesting IP issues from a variety of angles. That effort is even more rewarding when I have a chance to follow up with people who have made a direct contribution to our thinking on one of those issues. Back in April, I discussed an upcoming Alabama Law Review article, called “The Secret World of Design Patents,” hailing its contribution to our understanding how design patent litigation actually works in America. In particular, I lauded the article for how it provides the IP community with “answers … to a number of basic questions about design patent enforcement.” Sorely needed information, especially when we consider the growing importance of design patents in the modern IP ecosystem.

Besides for the value of the article’s content, I was happy to see that the article was a product of law professor/law student collaboration. The article was co-authored by Northwestern Law’s David Schwartz, together with our interview subject (a current Kirkland IP litigation associate), Xaviere Giroud. I am pleased that Xavi has graciously agreed to discuss her work on the article, while also sharing her personal path toward practicing IP law. While I have had the privilege of interviewing leading IP academics on these pages before, a written interview with a published law student turned IP practitioner had eluded me. Until now.

By way of background, Giroud is an intellectual property litigation associate in the Chicago office of Kirkland & Ellis LLP. She holds a B.S. in Biomedical Engineering from the University of Arizona and a J.D. from Northwestern Pritzker School of Law. Prior to graduating from law school, Xavi was a Summer Associate at Knobbe Martens in the Orange County office and at Kirkland & Ellis LLP in the Chicago office. She was also a Public Interest Law Initiative Graduate Fellow at Equip for Equality in Chicago where she advocated for special education students. In the first installment of our two-part interview, Xavi shares how her undergraduate studies in engineering, coupled with exposure to certain aspects of patent practice, cemented her desire to practice IP law and how she built on those foundations to maximize her exposure to IP while in law school, culminating in her earning her current role as an IP litigation associate at one of the undisputed leading Biglaw firms in the space.

As usual, I have added some brief commentary to Xavi’s answer below but have otherwise presented her answer to my first question as she provided it.

GK: You have a science background and are currently working as a Kirkland IP litigation associate. Was there ever any doubt you would gravitate toward IP practice?

XG: No, I never had any doubts about that! I enjoyed studying biomedical engineering in undergrad, but I couldn’t see myself doing the hands-on designing and engineering long-term. A practice in intellectual property law gave me the perfect opportunity to continue to utilize my undergraduate degree, while taking a more bird’s-eye-view approach to technology. Though, I will admit, before taking an introductory intellectual property class in my first year of law school, I really had no idea what “intellectual property law” was. I was sold after my first year of law school during my summer associate experience. My first summer I focused on patent prosecution and had the chance to work on a number of projects in the medical device space. I loved sorting through patents, whether it was to analyze prior art or respond to a rejection from the Patent Office, because I learned so much about each piece of technology and how they were designed. From there, I tried to learn as much as I could about intellectual property law in law school — taking intellectual property law classes and joining the Northwestern Journal of Technology and Intellectual Property — and I haven’t looked back since.

Xavi’s experience of not really knowing much about IP law before starting law school is very typical, and certainly mirrors my personal situation when beginning my legal studies. The tide may be changing though, as having basic IP literacy becomes more of a requirement for a successful career in many industries, a need driven by the increased value of IP in the modern global economy. With the growing number of IP-centric courses being offered at business schools, colleges, and even high schools, it is my hope that more students will have exposure to IP earlier in their educational careers, which could help attract even more talented young scientists with an interest in practicing law to eventual IP practice, as Xavi was able to do. In her case, it is great to see how exposure to IP practice as a summer associate helped inform her decision to pursue more IP classes and a spot on an IP journal in law school. Ultimately leading to her current position and what I hope will be a long and successful career in the field.

Next week, I will conclude my interview with Xavi, focusing on how she came to collaborate with Prof. Schwartz on a comprehensive review of the data about design patent litigation.

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.

Things are still closed down, which means we’ve not had an opportunity to haunt the halls of an event center with the usual legal community suspects for a while, so let’s see what’s going on out there. It’s time to catch up with Keith Lee, founder of LawyerSmack, about the private community of lawyers he’s built up over the years and the trends he’s observed participating in these conversations with lawyers from all sectors coming together to connect.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by ALM for their 2020 Am Law 200 ranking, which firm had the greatest decrease in gross revenue?

Hint:The firm’s gross revenue took at 12 percent hit. 

See the answer on the next page.

Former vice president and presumptive Democratic president nominee Joe Biden is still being kept under lock-and-key in a Wilmington basement, issuing the occasional message to his future constituents and rising in the polls the only way he knows how, which is to say by being invisible. But right here it looks like we’ve gotten another transmission from beneath Barley Mill Road.

It is my fervent hope that we use this crisis as a catalyst to rebuild an economy that creates and sustains opportunity for dramatically more people, especially those who have been left behind for too long. The last few months have laid bare the reality that, even before the pandemic hit, far too many people were living on the edge….

Unfortunately, low-income communities and people of color are being hit the hardest, exacerbating the health and economic inequities that were already unacceptably pronounced before the virus took over…. An inclusive economy – in which there is widespread access to opportunity – is a stronger, more resilient economy. This crisis must serve as a wake-up call and a call to action for business and government to think, act and invest for the common good and confront the structural obstacles that have inhibited inclusive economic growth for years.

Troutman Sanders is still prepping for its merger with Pepper Hamilton. The combination was originally scheduled to be completed by April 1, but due to the coronavirus, that was postponed to July 1. But even with a merger to prepare for, the pandemic sweeping the globe is continuing to put pressure on businesses — law firms being no exception — that require austerity measures to keep cash flowing.

Tipsters report that austerity has been on the table at the firm, with folks taking leaves of absence. When reached for comment, the firm confirmed that the leaves were voluntary with staffers across all offices asked if they wanted to participate in the program:

Effective May 1, Troutman Sanders will implement a voluntary temporary leave of absence program for professional staff, across all offices. Participating employees will receive a weekly stipend plus paid health insurance premiums. We greatly appreciate the continued resilience and commitment of Troutman Sanders staff to the firm and to our clients during these tumultuous times. The voluntary leaves are expected to be three months, however Troutman Sanders plans to call people back earlier if circumstances allow.

For its part, Troutman’s soon-to-be merger partner Pepper Hamilton has already slashed associate salaries by 20 percent.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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).

For months, former federal prosecutors have expressed shock and horror at Bill Barr’s nakedly political use of the Justice Department as a partisan weapon. From cutting the legs out from under the prosecutions of Michael Flynn and Roger Stone, to promising that U.S. Attorney for Connecticut John Durham will be recommending criminal prosecutions, to re-investigating Hillary Clinton’s staff for the umpteenth time for possible email violations, the Attorney General has been roundly criticized by experienced federal practitioners for gross impropriety.

Aside from creepy, old has-beens like Fred Fleitz and Joe diGenova, there’s no one to carry water for Barr and pretend that weaponizing the Justice Department is natural and appropriate, nothing to see here.

Enter the Republican State AGs: elected politicians and apparently the only lawyers on earth willing to vouch for Bill Barr. A consortium of state attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Utah, and West Virginia have filed an amicus brief in the Flynn case instructing U.S. District Judge Emmet Sullivan to quit accepting amicus briefs — right after he reads theirs, natch — and instructing His Honor to dismiss the case immediately and “without irrelevant or personal comment.”

“The Court should immediately grant the federal government’s motion to dismiss the information against General Flynn because the federal judiciary has no authority to make the executive branch pursue (or continue to pursue) a criminal conviction,” the officials argue, conveniently eliding the fact that prosecutors already secured a conviction. Because Michael Flynn pled guilty in 2017 and allocuted to his crime multiple times in open court. All that remained was the sentencing, before the Justice Department blew up the case with some laughable arglebargle about it being illegal for the FBI to go talk to Michael Flynn and force him to lie about his conversation with the Russian ambassador.

The AGs are incensed that Judge Sullivan appointed John Gleeson, an experienced federal practitioner and retired judge, to figure out what the hell is going on with the Justice Department, since all of the line attorneys withdrew and there’s every appearance that Main Justice substituted its political discretion for the prosecutorial discretion of the attorneys on the case. And the state AGs are very concerned about prosecutorial discretion, calling it “a bulwark of liberty.”

“The discretion to not pursue a charge serves as a vital check on legislative authority,” shout the very attorneys whose states sued the Obama administration for failing to enforce immigration laws in 2014.

Then they wagged their fingers at Judge Sullivan and explained to him that actually the Federal Rules make it illegal for him to do anything but rubber stamp the government’s motion to dismiss.

It is true that Criminal Rule 48(a) requires a prosecutor to seek leave of the court when dismissing a case, but that does not change the analysis. In the context of a case like this — one where the government has decided not to prosecute a defendant — the rule gives courts the merely ministerial role of granting leave and dismissing the case.

Judge Sullivan can’t make the government present its case, they argue, once again ignoring the inconvenient fact that the government already did present its case and secured a guilty plea.

The amici conclude by telling His Honor to STFU because questioning the motives of the sacred DOJ “erodes public confidence in the courts’
ability to serve as neutral arbiters in politically sensitive cases.” As one does in a federal amicus brief.

“The frequent commentary on the wisdom of this administration’s decisions leaves the public, however unfairly, with the perception that the judiciary is just another political combatant whose decisions are entitled to no special respect.” Which is big talk for a group of political combatants whose exhortations are entitled to no special respect in Judge Sullivan’s courtroom.

“The Court should leave the commentary to the commentariat. It should grant the United States’ motion without elaboration,” they conclude.

No doubt Judge Sullivan will take due notice thereof and govern himself accordingly.

AMICUS BRIEF FOR THE STATES OF OHIO, ALABAMA, ALASKA, ARKANSAS,FLORIDA, GEORGIA, INDIANA, LOUISIANA, MISSISSIPPI, MISSOURI, OKLAHOMA, SOUTH CAROLINA, TEXAS, UTAH, AND WEST VIRGINIA IN SUPPORT OF THE UNITED STATES [Scribd via Law and Crime]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

COVID disrupted everybody, including the legal profession. We are all in uncharted waters here.

— Diana Schulz, president of Martindale-Avvo, commenting on the results of a new survey by Martindale-Avvo, tracking how the COVID-19 pandemic has affected the legal system as a whole. According to the results, about 81 percent of surveyed firms have seen their revenues drop, while 27 of those firms said their revenue had decreased by more than half since the crisis began. Because of their decreased revenues, more than 18 percent of surveyed firms had to shrink their workforce through furloughs or layoffs.

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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.

I feel like we all spend time at the beginning of each year predicting what will happen in the ensuing 12 months. By my count, in recent months, I have read more than 50 predictions for what will happen in legal technology in 2020.

Legal operations is not exempt from these predictions. Notwithstanding that it’s impossible to predict the future, we pile on and offer prognostications. And don’t get me wrong, I have no problem with this — I think it’s smart to look ahead and try to figure out what’s going to happen. It’s smart business, too. Every businessperson ever has probably heard hockey player Wayne Gretsky attribute success to the quote “Skate to where the puck is going.” (Gretsky’s father actually coined the phrase.)

More and more we’re developing a herd mentality. A classic herd mentality is illustrated by the stock market. An investor with a large position in a stock starts buying (or selling) a particular stock. Others start seeing the stock’s volume move in a certain direction, and they pile on. Like untrained animals, the herd moves the stock to new highs (or lows) and then we all move on to the next hot stock.

An oversimplification, for sure, but you see the point. It’s a bad investment practice and an even worse business practice. Yet, it persists.

A new product hits the market, and everyone runs toward it. It’s not necessarily that the new shiny object is the best; but because everyone is running toward it, other people start running too. Before you know it, everyone holding the new thing is asking questions like, “why doesn’t it do this” or “wouldn’t it be cool if this did that?” In some instances, this leads to further innovation. In others, the new, shiny object becomes dull, if not tarnished, as other objects dive in to fill the gap.

But you know what does not get old, or dull, or overhyped in marketing jargon?

Process. The notion of having a process for the work that we do has stood the test of time. Long before there were computers, there was process. Identifying and organizing the discrete steps and tasks associated with the work that we do will never be replaced by software or influenced by herd mentality, and it’s kind of hard to overmarket a process.

If everyone ran toward using a new process, and it did not work, users would quickly realize its shortcomings and before long would replace it with a process that does work.

What is the point of all this? Well, I get asked all the time about new software, existing software, and about which software solution should be used in various circumstances. Legal operators ask me these questions all the time. My answer: What are you trying to do? Not even my wife of 30 years gets as annoyed about me answering a question with a question.

But the truth is that before you invest in a solution, particularly one that may increase efficiency, you first need to have in place a process. You don’t purchase software hoping it provides your process; you design a process and then find software that compliments the process.

As the world continues to innovate in legal technology, and as legal operations departments become more mature and driven by advances in technology, keep the process perspective in mind, and don’t fall into the herd mentality trap.

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Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

Other than the Fourth Amendment’s guarantee against unreasonable government searches, I would argue no other constitutional guarantee is more abused or more intentionally distorted in the modern era than the First Amendment’s Establishment Clause. Before I get to how the Guadalupe School case can help stem this abuse and distortion and hopefully re-establish the value of a functional Establishment Clause, we should delve into the background and current context of the guarantee itself.

When our Constitutional framework of religious liberty was first being put into practice, its primary author was clear the purpose was to bring about a “restoration” of religion’s primitive state where its “Teachers depended on the voluntary rewards of their flocks” instead of civil government. Despite this clear prohibition against utilizing civil support for religion (that now applies to the states as well), evidence demonstrates that many of today’s religious institutions have become primarily or substantially dependent on government funds for their operating budgets. Not only is this amount of direct funding of religious organizations by our government an insult to our rule of law, it also represents a direct threat to social stability.

As churches have become more operationally dependent on government support, their functions are increasingly being viewed as extensions of politics, rather than spiritual works. Making matters worse, we have a current president who portrays shifts in the political order as violent threats to religion. One of the main purposes of the Establishment Clause (i.e., the separation of church and state), was to prevent such religious strife. When independent operational separation exists, shifts in the political order can never pose any form of threat. Unfortunately, due to a modern campaign of distortion, the separation of church and state is regularly being represented as a form of hostility, instead of a liberty.

When it comes to educational funding, for example, the argument has been made that any government scheme that distributes taxpayer money to government-run secular schools only and that prohibits funding of any private schools (including religious schools), is being hostile to religion. In defending this argument David French asks: “If the government can’t prefer one religion over another, why can it prefer secular schools over religious schools? Why can it prefer irreligion over religion? Does the Establishment Clause permit state hostility against religion?” As it is with most legal arguments, framing is everything. And the fundamental error in this line of questioning is that it frames government separation from religious education as an extension of hostility, instead of a liberty. Indeed, the mistake in such a framing becomes abundantly clear when you apply it to the Guadalupe School case.

As the amicus signed by this country’s most prominent church and state scholars points out, at the heart of the Guadalupe School case is “the autonomy of religious organizations to select those who perform significant religious functions, including religion teachers and others who help transmit the faith.” In other words, the case is about the government being prohibited from interfering with how churches select teachers of their faith. This prohibition against government interference with religious instruction was labeled by the Supreme Court as the “ministerial exception,” but I would argue this title is fundamentally misleading. Put simply, by staying out of the affairs of religious instruction, the government is not granting any particular “exception” but is upholding the principle enshrined in the Establishment Clause that government and religion exist in a state of separation. Thankfully it appears as though the Court itself is likely going to abandon this misleading title of “exception.”

If you were to apply French’s framing to the Guadalupe School case, however, exempting private religious education employers from certain employment laws but not government “secular” employers would constitute a hostile act against the secular government employer. Think about it, if the Guadalupe School wins government school teachers would have the protection of certain employment laws while private religious school teachers would not. How could such differential treatment under the law — based solely on religious makeup — be considered fair or equal?

The difference only becomes a liberty once you view it through the framework of the First Amendment’s prohibition against government involving itself with religion. Such differential treatment is in fact necessary as it would be functionally impossible to maintain church and state separation unless government treated its secular schools in many ways differently from religious schools. In other words, labeling such differentials as hostile per se undermines the broader liberty of religious autonomy. The good news is, when it comes to the Guadalupe School case at least, the Supreme Court is virtually certain to extend separation liberty. The devil (pun intended) is in the vitally important details of such extension.

My hope is that in extending the principles at the heart of the Guadalupe School case, the justices, many of whom have viewed church and state separation as inherently hostile in the past, can be forced to recognize its inherent value. Unfortunately, it is more likely that we will see multiple justices paradoxically declare this term that religious liberty somehow means government is both commanded to stay out of the affairs of religious education while at the same time existing under an obligation to fund it. If this paradoxical and theocratic view of religious liberty wins the day, the increasing social hostility we are currently seeing, and in which our Constitutional structure of religious liberty was originally designed to prevent, will only increase.

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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.

A long-term care option such as a nursing home facility is always difficult to consider for a loved one. Watching a parent move from a sprawling house into a single room, exhausting their hard-earned money for the opportunity to live with hundreds of others and be dependent on strangers for their everyday activities is never pleasant. Even more so, observing (from a distance) a relative isolated and possibly dying, in a facility during an epidemic like COVID-19, is frustratingly brutal. Long-term care facilities, like assisted living, rehabilitation, and nursing homes, have been hit hard by the coronavirus, harming and killing thousands of residents and employees.

According to Theresa Tam, Canada’s chief public health officer, 81 percent of deaths in Canada occurred in nursing homes and facilities. More than one-third of the United State’s COVID-19 deaths occurred in long-term care facilities. Eleven percent of the total COVID-19 cases in the United States stem from long-term care facilities. Reportedly more than 4,800 nursing home residents have died since March 1, 2020, in the state of New York from COVID-19, which puts the state first in the nation in most COVID-19 nursing home deaths.

Contagious viruses like the flu and COVID-19 are spread easily among those living and working in close quarters. Many residents of nursing facilities have severe underlying health issues which make their contraction of the virus more serious, if not fatal. Residents interact closely with employees, requiring assistance in everything from eating to bathing to walking. As health officials learn more about the virus and its transmissions, states and facilities have taken steps to mitigate the disease’s spread, by isolating residents and monitoring employees traveling to and from work.

A significant and controversial issue in the spread of COVID-19 has been the return or admission of infected COVID-19 patients from the hospital to nursing facilities. Not only do returning patients have the ability to spread the virus, but in many cases, have displaced the already vulnerable residents, who are made to move to make room for the infected. In March, several states, such as New York, Massachusetts, and New Jersey issued mandates to lessen the hospitals’ loads transferring recovering COVID-19 patients to nursing homes. This is thought to have further spread the virus in the already affected facilities. States have since modified orders. For example, New York now requires patients to test negatively before moving to a nursing facility.

Questions, blame, and general frustration are being spewed by legislatures, facilities, and, of course, families. Who bears liability for all of this sickness and death? Across the nation, families are considering legal action, suing for neglect, abuse, and when there is a deceased loved one, wrongful death. States have been responding with laws for immunity, in varying measures, to protect frontline workers from potential lawsuits.

Like hospitals, doctors, and other healthcare workers, nursing homes are also seeking immunity from lawsuits so that they may continue to operate without the fear of legal repercussions. Immunity for nursing homes is controversial given ongoing concerns in the industry as to abuse, neglect, and other wrongdoing in nursing facilities, where the elderly and infirm are often weak and isolated.

Recently, as part of the New York State budget bill,  Governor Andrew Cuomo signed Article 30-D of the Public Health Law (Emergency or Disaster Treatment Protection Act), which protects nursing home executives with legal immunity. The law implements significant liability standards, providing immunity to nursing homes from criminal or civil liability, with the exception of gross negligence, reckless misconduct, or intentional malfeasance.

With facility residents dying in such large numbers, much criticism has been raised from all sides regarding this law, which many feel further harms the already vulnerable nursing home population. Investigations and probes into the law and the surrounding situation are being threatened. All the while our parents and grandparents wither away, not just from illness and death, but from isolation and what can only be described as our communal failure.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.