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“The situation is difficult for many people, but it is better for me because I have a job. If I was not working, things would be worse.”

Loveness’ story

Loveness January is a 52-year-old widow who lives in Seke communal lands in Mashonaland East Province, roughly 50 kilometres from Harare. Her husband died in 2008 leaving her with two twins to raise who are in secondary school.

She works as a first aid assistant at a solar company where she earns ZWL400 ($25). Her salary is sent via mobile money to her phone, which means she has to pay a two percent tax on each transaction, further eroding her income.

“I want my children to further their studies, to eat good food, but the situation is so bad that we have resorted to having two instead of three meals a day,” she says. “We have stopped buying non-essentials like sugar.”

Loveness walks to work, which is roughly three kilometres from her home, to save a little more money.

Gardening and livestock rearing typically provide extra income for people in the communal lands, but this year has been particularly bad due to drought. Loveness’s well dried up, her maize crop failed, and she lost her three cattle to red water disease. She was forced to sell the remaining four goats to raise the exam fees for her two children.

Loveness doesn’t anticipate the economy will improve any time soon, and sees further hardship ahead. “The rainy season is upon us, but I can’t afford to buy seed or fertiliser,” she says.

Design patents are different. While that is something IP lawyers and their clients know, an information gap relating to design patents persists relative to their utility brethren. Thankfully, design patents are starting to garner more attention, driven in large part by younger academics interested in the interplay between design generally and IP law, as well as by a changing marketplace for consumer products. More on the former in a bit. As for the latter point, there are a number of reasons that design patents have become a more important piece of the IP picture — especially for IP owners in the business of selling products to consumers.

In fact, design patents are more attractive than ever to makers and sellers of consumer products. The rise of sales online — which will only accelerate as the prolonged COVID-19 lockdown turns us all into even more avid online shoppers — puts a premium on the “look” of products, which encourages manufacturers to develop unique design elements for their products wherever possible. Gotta have unique thumbnail pics to stand out, after all. Add in the ease of enforcing design patents on online marketplaces like Amazon and eBay, and you have a recipe for increased attention to design patents by online sellers. Furthermore, the consolidation (destruction?) of brick-and-mortar retail, which has resulted in fewer and fewer options for shoppers, also puts a premium on distinctive product design for the reduced subset of products blessed to vie for limited shelf space.

Design patents are also attractive to companies that seek to take advantage of quicker manufacturing times, as well as the compression of the supply chain that allows an American consumer to open the mailbox and find a gadget (usually made somewhere in China) wrapped in that magic thick silver masking-tape “envelope” many of us have come to know. Moreover, the lower cost and greater odds of allowance make design patents an alluring “starter IP asset” for smaller companies to pursue. Especially since there is no risk of being ensnared in Alice’s siren song when dealing with a design patent.

Enough about the qualities that make design patents important in the current marketplace. Let’s talk about how they accomplish their function. For a patent, this is usually a pretty simple analysis. On one hand, you have the soft marketing benefits of a patent — increased attractiveness of the IP owner to investors, or of the patented product to customers, etc. On the other, more fundamental hand, you have the basic raison d’etre of any patent — the right to exclude others from practicing the invention without permission. Also known as enforcement. While utility patent enforcement is a relatively open book (with many data services purveyors happy to sell subscriptions to you to make sure you never miss a page) things have traditionally been more opaque when it comes to design patent enforcement. True, there are many fewer design patent cases, and the ones that get filed are usually considered lower stakes (with some rare exceptions). But that doesn’t mean that IP lawyers get a pass from knowing as much as they can about design patent litigation anyway.

I was glad, therefore, to see an upcoming Alabama Law Review paper from Northwestern Law’s David Schwartz and current Kirkland associate Xaviere Giroud called “The Secret World of Design Patents.” While I commend the whole article, I was especially interested in the answers it provided to a number of basic questions about design patent enforcement, which will be discussed below in no particular order.

Let’s start with the “who?” — as in what types of entities enforce design patents. In contrast to utility patents, where nonpracticing entities seem to have cornered an ever-increasing share of the enforcement market, when it comes to design patents “the top asserted design patents are assigned to practicing entities, not NPEs.” This fundamental difference between design patent vs. utility patent enforcement manifests itself in “how” design patents are enforced as well. For one, the article recognizes that most “design patent litigation occurs between small and medium entities than any other pair category,” meaning that the David v. Goliath dynamic at the heart of many utility patent battles may be missing in the design patent context. Moreover, the authors surmise that design patents “may be sufficient to successfully litigate against counterfeiters, who intend to deceive consumers,” which is consistent with how we use our own design patent clients’ assets to police infringement online, for example.

The distribution (or “where?”) of design patent case filings also differs from that of utility patent disputes. As the article states: “Design patent cases are clustered in different districts than utility patent cases, namely the Central District of California and the Northern District of Illinois, rather than the Eastern District of Texas and the District of Delaware.” At a minimum, the locus of cases near design and manufacturing hubs — as opposed to courts that are perceived as patent-owner friendly — suggests that design patent owners are less likely to engage in forum shopping when bringing their cases. At the same time, it can be challenging for design patent litigants to conform their cases to the existing “local patent rules”-based case management approaches that have arisen in courts nationwide. Tellingly, the article suggests that the design patent bar could benefit from an addition of more experienced practitioners with a focus on design patents, as opposed to having design patent cases being handled by utility patent litigators as a matter of course.

Ultimately, there is a need for continued scholarship around design patents, especially as they increase in commercial importance. No longer can we afford to treat design patents as part of a “secret world” hiding in plain sight. Nor can we ignore the power of design patents to curb the counterfeit crisis, particularly when it comes to products ordered online. As the authors of the subject article correctly noted, design patent litigation deserves the same level of analysis as what utility patent litigation receives, with their article another incremental step in that direction. Because it is not enough to realize that design patents are different. Our clients depend on us to know how to use them wisely as well.

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.

Another day, another round of salary cuts among some of America’s wealthiest and most well-known law firms. As opposed to conducting layoffs en masse like happened during the Great Recession, to combat the economic toll of the coronavirus crisis, many law firms have decided to institute pay cuts across all employee levels instead.

Today, we have news from Am Law 200 firm Smith Gambrell, which last year posted a record 17 percent increase in revenue to $133.4 million and a 32.4 percent increase in net income to $49.7 million. Unfortunately, these successes are no match for the COVID-19 storm to come. The firm is cutting pay for all employees by 10 percent and deferring partner draws by 20 percent. The pay cuts took effect on April 1.

Smith Gambrell has reportedly decided against furloughs and layoffs, even though it’s not feasible for some of its employees to do their jobs in a work-from-home setting.

The firm’s ethos is “we are in this together,” [chairman Stephen] Forte explained. “We want the team fully intact when the curtain comes down on the virus.”

“Prudent management in the face of this approaching tsunami-pandemic motivated us to get ahead of the curve, while we are all working hard to flatten it,” Forte said. He added that one of his favorite quotes, which he’s been repeating to Smith Gambrell’s lawyers and staff, is: “Disasters remind us that we depend on each other.”

Smith Gambrell reported record revenue and profit in 2019, and Forte said that for the first quarter, “we are well ahead of last year’s record performance.” That gives the firm a financial buffer as the pandemic’s economic toll continues.

On the bright side, Smith Gambrell has “committed to equitably restore lost compensation due to the adjustment when we see our way clear of the effects of this crisis.” At least employees have true-up bonuses to look forward to when this is over.

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.

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.

We are living in a unique time in American history where an already substantial portion of the population that has openly rejected religion is continuing to increase exponentially. This kind of rapid change within a country’s general demographic has, as it always has throughout our history, generated significant backlash from a threatened-feeling former substantial majority. Under this historically unique tension (and throw in a deadly pandemic to boot), a religious liberty drama has been unfolding in Kentucky where a federal judge has issued a blistering, eighty-six-footnote-long temporary restraining order against the mayor of Louisville.

The federal order prevented the mayor of Louisville from prohibiting “drive-in church services” this past Easter Sunday as a response to the COVID-19 pandemic. Adding to the drama, Louisville Mayor Greg Fischer is now claiming “[t]here was never a Louisville Metro Government ban on drive-in church services” to begin with and that the court did not allow the city to make this fact clear.

To begin. The problem with the mayor’s claim is that a number of prior public statements made by Fischer appeared to logically indicate he was banning drive-in church services. What is clear, is that although Kentucky Governor Andrew Beshear did specifically prohibit all in-person gatherings (including church services), he also released guidance on rules to follow for drive-in Easter church services.

A common element to many religious liberty cases, in my opinion, is government incompetence, and Mayor Fischer’s ambiguous statements leading up to Easter Sunday undoubtedly created a great deal more confusion that was necessary. And it should be needless to say that in a time of pandemic, confusion regarding what constitutes a lawful gathering is not what anyone wants to see from the government, at any level. But another common element to religious liberty cases, I believe, is what might be called “Christian-victimhood,” a term characterized by the belief that Christians in the United States exist under some sort of constant legal/social attack. This belief was the dominating feature of Judge Justin Walkers‘ federal order against the mayor of Louisville.

To hear Walker tell it, we are living in state of antireligious dystopian rule. The problem with Walker’s description, however, is that Christianity in general has never enjoyed this much favoritism in federal law. For example, to my knowledge, the Supreme Court has forced citizens, through compelled taxation, to provide financial support for Christian symbols only. In other words, no religion other than Christianity can compel you through the government to support its religious speech/symbols. Meaning that if the facts of a case involve a forty-foot crescent moon of Islam monument that some municipality wants to force you to provide financial support to instead of a forty-foot Christian cross, the legal outcome will be entirely different. Yet, we are somehow asked to maintain the notion of religious “equality” or “liberty” from such a standard.

Moreover, federal statutes have in practice favored Christian exemption from the application of criminal law that all the rest of us live under. Basically, if your criminal actions can be attributed to Christian biblical direction, you stand the best chance of having the federal RFRA statute applied on your behalf. Whether or not you think such obvious favoritism in the law is acceptable because of “historical” reasons, you cannot call it equal. As I have repeatedly stressed, Christians, if anything, are the only authoritarian actors operating right now by fighting (and winning in federal courts) to prevent nonreligious couples from having secular celebrants who share their deeply held beliefs at their own weddings. Or fighting (again successfully), to ban nonreligious citizens from addressing their own state legislatures with messages of inclusiveness and pluralism.

The more important point to be made here however, is that any discussion over whether Christianity is authoritarian or under attack was not at all necessary to issuing the TRO in Kentucky. Moreover, unnecessarily injecting it into the legal discussion did real damage. First, when there is a (I would argue in this case, fictional), religious narrative being injected into a judicial determination, that makes it much more logically difficult to engage in an honest assessment of the legal issues. But there is also a much more pernicious effect of exaggerating the so-called threats against Christianity.

When citizens are told by their courts that their faith is under constant assault by their own government, or that certain “others” such as “secularists,” “Muslims,” “liberals,” etc., are massing and coming to take their faith, this puts citizens in an increasingly pluralistic society into a combative frame of mind against anyone who has a different view. The drafters of our religious freedom clauses in the First Amendment knew how dangerous this religiously combative mindset could be, which is why they implemented such safeguards. Given that we are living in a unique time where the country’s religious makeup is witnessing drastic changes, the caution against wild exaggerations only increases in our current day.

Federal free conscience liberty is a government-created concept that has a stellar track record of keeping the peace and generating social harmony even within diverse populations. In fact, if the protections enshrined in the First Amendment are applied equally to all beliefs, this represents the very best defense against the very things many Christians are claiming they are fighting against. Eroding those defenses so as to establish Christian favoritism in the law based on “history” or some made up grievance, however you want to couch it, means that any future majority can claim history and the narrative now favors them. The only way to prevent such conflict is through a combination of government competence and level-headed federal judges, neither of which was on particular display in Kentucky this past week.

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 judge is complaining that some attorneys are appearing shirtless and in bed for court conferences held via Zoom because of COVID-19. Of course, this is happening in Florida… [Local 10]

* Speaking of which, the Supreme Court will be conducting oral arguments by remote means next month. It seems that there will be no on-camera component to the arguments, so counsel might get away with participating in their underwear. [CNN]

* Check out this Texas lawyer who traded a suit for scrubs and volunteered to help COVID-19 patients at a New York hospital. [Dallas Morning News]

* A federal judge has ruled that ICE must allow detainees to have private phone calls with their attorneys during the COVID-19 pandemic. [Los Angeles Times]

* McDonald’s employees have filed a class-action lawsuit against the fast food chain alleging that the company has a systematic sexual harassment problem. [Business Insider]

* The North Carolina Attorney General is investigating someone for price gouging for offering to sell a roll of toilet paper for $100. Maybe it was just super premium toilet paper? [AP]

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.

Of the law schools that are currently in operation, which was the first to be established?

Hint: The law school (and the entire college) closed in 1861, and the law school didn’t reopen until 1922.

See the answer on the next page.

We knew this was coming. On Friday, Baker McKenzie — the huge Biglaw firm with over 6,000 attorneys worldwide — gave employees a heads up that COVID-19 austerity measures, namely salary cuts, were coming. Quite a few employees of the mega firm reached out to Above the Law to express their… displeasure at being left wondering how big a financial burden they’d be forced to shoulder over the holiday weekend.

Well, the wait is over. This afternoon, Baker McKenzie North America Chief Executive Officer Colin Murray emailed employees (full email available on the next page) the planned cuts. In the United States, all attorneys and business professionals making over $100,000 will see a 15 percent cut in salary. In Canada folks are getting a 10 percent cut, and no cuts are planned in Mexico. Annual raises, usually scheduled for July 1 at the firm, will not happen. And the firm anticipates these lower salary points lasting from May 1 through December 31.

On the happier side, the firm will establish an emergency loan fund (details forthcoming) for those particularly hard impacted. And they’re keeping the door open for additional bonuses for “exemplary performance”:

We anticipate recognizing and additionally awarding payments to our top performers, as well as to others demonstrating exemplary performance in the face of increasing demands on their time — both timekeepers and business professionals — later in the year.

As Murray said in a statement to the media:

“We all will share in some short-term pain, but in the long term, taking these actions now is the most prudent way for us to move through this crisis as a Firm, with the smallest impact possible on our people and our clients.”

Good luck to those at the firm as they weather the financial consequences of COVID-19.

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.

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).