Saturday, March 27, 2010

This is the Migrated Mirror Blog to LawPundit.blogspot.com

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For our newest LawPundit postings, please go to LawPundit at lawpundit.blogspot.com.

This blog at lawpunditblog.blogspot.com was created in the process of trying to migrate the LawPundit blog from lawpundit.com at the time of Blogger's discontinuance of FTP publishing in the Spring of 2010, which made the - forced - migration an absolute necessity. The immediate result was that Blogger then deactivated this migrated blog as spam, which of course it was not, and that has been corrected, but not after substantial damage had been done.

Although the LawPundit blog is now being carried forward at lawpundit.blogspot.com, I can not delete this blog at lawpunditblog.blogspot.com now since - in the migration process - and unbeknownst to me - substantial changes in the source code of each original blog posting were made by the Blogger team at the lawpundit.com domain so that original blog postings now point to this blog.

I.e. if someone finds an older LawPundit blog posting on a search engine, that user is diverted from lawpundit.com to lawpunditblog.blogspot.com, whereas the LawPundit blog is now being carried forward at blogspot.com as lawpundit.blogspot.com. If the instant blog were diverted, the user would get an error message with no opportunity to find the correct link. Hence, we are retaining this blog, but no longer posting to it.

For our newest LawPundit postings, please go to LawPundit at lawpundit.blogspot.com.

Tuesday, March 16, 2010

Greece's crisis, Germany's gain - latimes.com

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Thomas Meaney and Harris Mylonas at the Los Angeles Times write that Greece's crisis is Germany's gain. It is an nteresting viewpoint showing how German power - in our opinion, rightly - is increasing in Europe.

Some countries criticize the Germans for being so export-oriented, but the fact is, if a country does not produce much of anything that is competitive on the international markets for goods and services, then it is pretty much doomed to be a net importer of such goods and services and to be an exporter of labor and raw materials. This is what has happened to many of the nations on the fringe of the core of the European Union. Germany, on the other hand, produces so many high quality items that it is no surprise that its exports are in the plus column.

Hat tip to CaryGEE.

Sunday, March 14, 2010

Top Law Schools According to Brian Leiter

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Brian Leiter's Law School Reports: New Scholarly Impact Study Forthcoming:

Here are the top law schools according to Brian Leiter:

"We'll be posting soon a new study of the scholarly impact of law faculties at the ranking site which looks at citations to faculty scholarship for the period 2004-through very early 2010 (it's an updated and expanded version of this study). The top ten (factoring in per capita mean and median impact), with their normalized score in parentheses, are as follows:

1. Yale University (100)

2. Harvard University (87)

3. University of Chicago (84)

4. Stanford University (74)

5. New York University (65)

6. Columbia University (61)

7. University of California, Berkeley (56)

8. Northwestern University (49)

9. University of California, Irvine (48)

10. Vanderbilt University (45)"

Facebook HIstory: Are Mark Zuckerberg's Alleged 2004 Email Break-Ins Felonies? What Impact on Settlement with ConnectU? What Impact on Patents? What Role Inequitable Conduct?

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Does Crime Pay?
In the case of Facebook,
if facts as alleged in recently published sources - as set out below - are true,
then the answer - up to now -  is "Definitely Yes".

Exactly who founded Facebook is a matter of dispute. At the Wikipedia, we find written about the ConnectU.com lawsuit against Facebook:

"Divya Narendra, Cameron Winklevoss, and Tyler Winklevoss, owners of the social networking website HarvardConnection, changed its name to ConnectU in September 2004 and filed a lawsuit against Facebook, alleging that Zuckerberg had broken an oral contract for them to build the Facebook site, copied their idea,[99][100] and illegally used source code intended for the website they asked him to build for them.[101][102][103][104] The parties reached a confidential settlement agreement in February, 2008.[105]
ConnectU filed another lawsuit on March 11, 2008,[106] attempting to rescind the settlement, claiming that Facebook in settlement negotiations had overstated the value of stock it was granting the ConnectU founders as part of the settlement. ConnectU argued that Facebook represented itself as being worth $15 billion, the post-money valuation arising from Microsoft's purchase in 2007 of a 1.6% stake in Facebook for US $246 million. Facebook announced that valuation in a press release.[107] However, Facebook subsequently performed an internal valuation that estimated a company value of $3.75 billion.[108] Further, the website's 0.02%-0.04% ad click-through rate has led some analysts to believe that the site does not have a viable long-term business model.[109] ConnectU fired the law firm that had represented it in settlement discussions, and the firm in turn filed a lien against the settlement proceeds.[110] In June, 2008, an appeals court upheld the earlier settlement, rejecting ConnectU's new challenge.[105] In February 2009, it was reported that a settlement was reached between Facebook and the ConnectU litigants. Facebook will pay USD $65 million to the plaintiffs, most of it in Facebook stock, and $20M in cash.[111] ConnectU's law firm, Quinn, has asked for $13 million in legal fees."

But that is not the end of the saga, nor should it be, because this case brings into doubt many of the things that have gone on subsequently in the social media sphere, including the absurd patent recently awarded to Facebook for social network news feeds.

The newest development is reported in the Daily Mail Online, quoting original research on the origins of Facebook published at BusinessInsider.com in its article Facebook founder Mark Zuckerberg 'hacked into emails of rivals and journalists', where it is written that:

"Facebook founder Mark Zuckerberg has been accused of hacking into the email accounts of rivals and journalists [at the time of the founding of Facebook]."

Nicholas Carlson  at BusinessInsider.com in How Mark Zuckerberg Hacked Into Rival ConnectU In 2004 writes:

" This is the story of how, in the summer of 2004, Mark Zuckerberg hacked into a Facebook rival called ConnectU, whose founders had accused him of stealing their idea to build Facebook.  The details of this story were developed from a broader investigation of the origins of Facebook.  The investigation included interviews with more than a dozen sources over two years, as well as what we believe to be relevant IMs and emails from the period. "

Read the full story here.

Nicholas Carlson subsequently has written at the Business Insider that Mark Zuckerberg's 2004 Email Break-In Could Be A Felony. Moreover:
"The EFF attorney, Kevin Bankston, added that 'these allegations -- in particular, the troubling accusation that Facebook users' information was misused to enable the claimed email hack -- raise serious questions about whether or not 400 million people should be entrusting their online privacy to Facebook.'"
See our previous postings about this matter at:

ConnectU. v. Facebook : Who Founded Facebook? 02138 Magazine (Harvard Zip Code) Wins Censorship Case Against Facebook's Mark Zuckerberg

Facebook Sues German Social Website StudiVZ (Studienverzeichnis, Studentenverzeicnis, "Students Directory") for Intellectual Property Infringement

Who really owns what at Facebook?

We have been great dissenters to the current state of patent law and the manner in which it confers monopoly rights and vast amounts of capital, money and influence - often on the undeserving - and we think that Facebook is another case in point.

The interesting legal question for us in this regard is whether these email hacking allegations against the current head of Facebook, if true, invalidate the settlement Facebook made with ConnectU on the basis of bad faith, and entitle the ConnectU founders to more money and/or other rights in Facebook than they have up to now received.

If the email hacking allegations are true, then the alleged facts of the case - simply put - would be that  three Harvard University students, Cameron Winklevoss, Tyler Winklevoss and Divya Narendra originally came up with the Facebook idea - then under another name called the HarvardConnection.com and later changed to ConnectU - and enlisted fellow student Mark Zuckerberg to join their team to write the software, which he agreed to do. But in fact, while leading the others in the team on for months that he was writing software for "their project", he in fact stole the idea and was writing software for "his own stolen project" (presumably retaining proper programming for his own program only and simply defrauding the other program), thereby:
1) not only destroying the original HarvardConnection.com viz. ConnectU in the process - due to its fallow state - which might have been remedied by a newly chosen programmer; and
2) based on recent reports, also in the process - allegedly - actively sabotaging the operation of the very program that Zuckerberg was in the process of programming.

Everything that follows since then, is thus, in fact, a type of stolen property because the  successful development of Zuckerberg's Facebook came at the cost of the decline of HarvardConnection.com viz. ConnectU, and this includes all of the patent claims ultimately filed by Facebook, which are all tinged by the lack of good faith which existed at the very founding moment of Facebook. The founding of Facebook was a fraud - and this fraud tinges EVERYTHING at Facebook that followed.

In our view, all Facebook patents - granted or pending, if at all valid in the first place, which we doubt - are therefore invalid on the basis of the lack of good faith and the presence of long-term inequitable conduct on the part of the principal of the company.

As the USPTO writes:
"2010 Office Handling of Duty of Disclosure/Inequitable Conduct Issues [R-2] - 2000 Duty of Disclosure
2010 Office Handling of Duty of Disclosure/Inequitable Conduct Issues [R-2]

Determination of inequitable conduct issues requires an evaluation of the intent of the party involved. While some court decisions have held that intent may be inferred in some circumstances, consideration of the good faith of the party, or lack thereof, is often required. In several court decisions, a high level of proof of intent to mislead the Office was required in order to prove inequitable conduct under 37 CFR 1.56. See In re Harito, 847 F.2d 801, 6 USPQ2d 1930 (Fed. Cir. 1988) and FMC Corp. v. Manitowoc Co., 835 F.2d 1411, 5 USPQ2d 1112 (Fed. Cir. 1987). The Office is not the best forum in which to determine whether there was an "intent to mislead"; such intent is best determined when the trier of facts can observe demeanor of witnesses subjected to cross-examination. A court, with subpoena power, is presently the best forum to consider duty of disclosure issues under the present evidentiary standard for finding an "intent to mislead." The court proceeding involves two participating adverse parties. This is not the case in the Office, since even "protesting" parties are not permitted to participate under the rules. Also, it is the courts and not the Office that are in the best position to fashion an equitable remedy to fit the precise facts in those cases where inequitable conduct is established. Furthermore, inequitable conduct is not set by statute as a criteria for patentability but rather is a judicial application of the doctrine of unclean hands which is appropriate to be handled by the courts rather than by an administrative body. Because of the lack of tools in the Office to deal with this issue and because of its sensitive nature and potential impact on a patent, Office determinations generally will not deter subsequent litigation of the same issue in the courts on appeal or in separate litigation. Office determinations would significantly add to the expense and time involved in obtaining a patent with little or no benefit to the patent owner or any other parties with an interest.

Accordingly, the Office does not investigate and reject original or reissue applications under 37 CFR 1.56. Likewise, the Office will not comment upon duty of disclosure issues which are brought to the attention of the Office in original or reissue applications except to note in the application, in appropriate circumstances, that such issues are no longer considered by the Office during its examination of patent applications. Examination of lack of deceptive intent in reissue applications will continue but without any investigation of inequitable conduct issues. Applicant's statement of lack of deceptive intent normally will be accepted as dispositive except in special circumstances such as an admission or judicial determination of fraud or inequitable conduct. >See notice published in the Official Gazette at 1095 O.G. 16 (October 11, 1988).< See > also< MPEP § 2022.05.

>Issues of fraud and/or inequitable conduct in an interference proceeding before the Board of Patent Appeals and Interferences (Board) will be considered by the Board if they are raised by way of preliminary motion for judgment under 37 CFR 1.633(a). The motion must be filed during the period set for filing preliminary motions (37 CFR 1.636(a)), or good cause (37 CFR 1.655(b)) must be shown as to why the issues of fraud and/or inequitable conduct were not timely raised during the preliminary motion period. Issues of fraud and/or inequitable conduct will not be considered in any interference in which the times for taking testimony or the times for filing briefs for final hearing have already been set, unless "good cause" is shown under 37 CFR 1.655(b). An example of good cause would be where fraud or inequitable conduct is first discovered during taking of testimony. See notice published in the Official Gazette at 1133 O.G. 21 (December 10, 1991).<"

Saturday, March 13, 2010

Amazon.com drops Colorado retailers after tax law enacted - The Denver Post

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Amazon.com drops Colorado retailers after tax law enacted - The Denver Post
by Miles Moffeit and Jessica Fender

Friday, March 12, 2010

Food is the Key to Integration Through the Stomach - or - The World is Other than it Seems : Döner Kebabs Surpass the Hamburger in Germany

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The German Missions in the United States publish a Newsleter "The Week in Germany" [TWIG], which is also available online and contains some remarkable facts about "the real world" which suggest, as a recent TWIG article titles one of its paragraphs, that "Integration Through the Stomach" is the key solution to the world's political problems - after all, you are what you eat:
"Integration Through the Stomach
Döner Kebab © picture-alliance/ ZB
The döner kebab is one of the most popular fast foods in Germany.
(© picture-alliance/ ZB )
The döner kebab is one of the most popular fast foods in Germany, and is often available at Turkish-style eateries in cities across the country well into the wee hours of the morning.
"They have even set a record. Last year, more kebabs were sold than hamburgers," actor Adnan Maral, who presents Turkish and Bavarian cuisine on the regional TV station Bayerischer Rundfunk, said in a recent interview published by the Goethe-Institut and at Germany.info.
According to gourmets like Maral, the way to integration is through the stomach."

The U.S. Federal Circuit Court Strikes Again, Enabling a New Patent Scam : Patent Marking Trolls

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Lexology - Watch out for the patent marking trolls, March 1, 2010, by Mayer Brown informs us:
"Under Section 292(a) of the Patent Act, marking an unpatented article with intent to deceive the public mandates a fine of “not more than $500 for every such offense.” In The Forest Group, Inc. v. Bon Tool Co., No. 2009-1044 (Fed. Cir. Dec. 28, 2009), the court construed that provision to require imposition of the fine on a per-article basis (as opposed to a per-decision basis). Thus, a false patent marking on one million individual articles could generate an award of up to $500 million. Any persons can serve as plaintiffs in this “qui tam” cause of action, whether or not they have an interest in a patent or suffer any personal injury.
The Federal Circuit recognized that its ruling would encourage “a new cottage industry” of false marking litigation by plaintiffs who have not suffered any direct harm, but it concluded that such a consequence is imposed by the plain language of the statute."
Read the whole thing here.

Our comment: can't they get some judges into the Federal Circuit who have even a minimal understanding of THE LAW - "the law", folks, which consists not merely of statutes but of the sensible application of same.

Keep up on Europe with EUobserver Blogs

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Keep up on doings in Europe
with these blogs
from
EUobserver.com:

Head of BCS snipes at senators but will answer letter - NCAA Football - CBSSports.com

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Head of BCS snipes at senators but will answer letter - NCAA Football - CBSSports.com - March 10, 2010:
"BCS executive director Bill Hancock said Wednesday he will respond to a question-filled letter sent to him by two U.S. Senators.

'I'm looking forward to taking a longer look at the letter. I sure do think that Congress has more important things to do, with all the issues facing our country,' Hancock said in a telephone interview with the Associated Press. 'The BCS is fair. Access is fair. Revenue is distributed fairly. And frankly, we welcome the opportunity to tell our story every chance we get.'"
Your word in God's ear, Bill.

What Hancock does not understand is that the BCS is not fair, access is not fair, revenue is not distributed fairly and the BCS thinks it is above it all. In fact, it is a monopoly, and we have laws against that. Just ask the players at Boise State and their fans last year if they think the BCS system is fair. Bill, you are living in a dream world of your own creation which has no relation to sports reality at all. Money is your world. Money, not sports.

Does the Senate have better things to do than investigating the BCS? Very few. The BCS sucks. It is the antithesis of the American dream. It is the world the American founders wanted to get away from. It is the world of perks and politics, connections and favoritism, backroom dealings and citizen connings. It is about as far removed from purity in sports as all the drug-laced athletes that monopolize the sports pages of the tabloids. Cheaters. Con artists. Bamboozlers.

The BCS stands for all of what is wrong with America at the moment, Bill - and that is a lot. The country has degenerated to such a degree that national champions in sports are no longer determined by performance but by politics. When that is straightened out, Bill, then maybe we can get sensible laws about health care and similar things desperately in need of reform in a country now sunk so far below its potential, that it is pathetic.

Taking on the Internet Giants: Germany Applies Brakes to Google & Co. - SPIEGEL ONLINE - News - International

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Taking on the Internet Giants: Germany Applies Brakes to Google & Co. - SPIEGEL ONLINE - News - International

"The German government has discovered the Internet and data privacy as a political issue. The new debate over who should control the online world reveals a clash of two cultures, with the American ideal of freedom contrasting with the European desire for privacy."

Read the entire article by the SPIEGEL staff here.

Taking on the Internet Giants: Germany Applies Brakes to Google & Co. - SPIEGEL ONLINE - News - International

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Taking on the Internet Giants: Germany Applies Brakes to Google & Co. - SPIEGEL ONLINE - News - International

"The German government has discovered the Internet and data privacy as a political issue. The new debate over who should control the online world reveals a clash of two cultures, with the American ideal of freedom contrasting with the European desire for privacy."

Read the entire article by the SPIEGEL staff here.

Thursday, March 11, 2010

Impervious Slim is World's Wealthiest at Forbes: "me es impermeable" - Mexico's Carlos Slim is world's richest person - latimes.com

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Mexico's Carlos Slim is world's richest person
"'This is a number brought out by a magazine that doesn't concern us, or worry us,' Elias Ayub said, echoing Slim's 2007 comment about the top spot that had eluded him for years: a Spanish phrase -- 'me es impermeable' -- that roughly translates as 'I'm impervious to that.'"

Global Trade Declined by 12% in 2009 - Business - The Atlantic

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Daniel Indiviglio writes at The Atlantic that Global Trade Declined by 12% in 2009 - Business - The Atlantic. This is the same 12% drop we just posted in college donations. What is the economic connection?

Is Minus 12% the Bottom Line for 2009? Global Trade Declined by 12% in 2009 - Business - The Atlantic

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Global Trade Declined by 12% in 2009 - Business - The Atlantic

Secretary Grace Groner Donates Her Fortune to Alma Mater - But College Donations Down 12% Overall

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Secretary Grace Groner Donates Her Fortune to Alma Mater - But College Donations Down 12% Overall

What a great story.

Hat tip to a Twitter posting by Chris P. O'Leary

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