It’s not often that patent litigation furnishes the subject of a new Hollywood film; inventor-side attorneys must be hoping the David-and-Goliath theme of the Universal Pictures release Flash of Genius redounds to their benefit. (Brian Baxter, AmLaw Daily, Oct. 3). The original New Yorker article on which the film is based is by no means devoid of balance, and includes a discussion of the late Jerome Lemelson, a longtime Overlawyered favorite (John Seabrook, The New Yorker, Jan. 11, 1993). Unrelatedly, a patent attorney turns up as the lead character of a fiction thriller in Paul Goldstein’s “A Patent Lie” (Stephen Albainy-Jenei, Patent Baristas, Sept. 29).

“McDermott, Will & Emery and client Medtronic Inc. must pay $4.3 million in attorney fees as punishment for alleged ‘abuse of advocacy’ in a patent case, a Colorado federal judge ordered Tuesday.” As we noted in our coverage back in February, the judge found at that time that the McDermott lawyers “artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.” (Zusha Elinson, The Recorder, Oct. 2; WSJ law blog, Oct. 2).

More things it would be better to avoid doing if you’re a lawyer:

• Claim to be assetless and thus unable to make restitution for the largest theft of state money in Massachusetts history even though you live in a $1.5 million Florida house with a $70K BMW and other goodies [Boston Herald, Globe, disbarred attorney Richard Arrighi]
• Botch appeals and then refrain from telling clients their cases have been lost [Clifford Van Syoc, reprimanded by New Jersey high court; NJLJ; seven years ago]
• Attempt to deduct “more than $300,000 in prostitutes, p0rn, sex toys and erotic massages” on your income tax returns, even if you are “thought of as a good tax lawyer” [NY Post] Nor ought you to accept nude dances from a client as partial payment for legal fees [Chicago Tribune; for an unrelated tale of a purportedly consensual lap dance given by secretary to partner, see NYLJ back in April]
• Introduce a patent application purportedly signed in part by someone who in fact had been dead for a year or two [Law.com/The Recorder, Chicago's Niro, Scavone, Haller & Niro, of blog-stalking fame, client's patent declared unenforceable] Or pursue a patent-infringement case based on what a federal judge later ruled to be a “tissue of lies” [NYLJ; New York law firm Abelman, Frayne & Schwab and lawyer David Jaroslawicz, ordered to pay opponents' legal fees; earlier mentions of Jaroslawicz at this site here, here, here, and here]
• Demand ransom for a stolen Leonardo da Vinci painting [biggest U.K. art theft ever, all defendants have pleaded not guilty, LegalWeek via ABA Journal]

Shrinkwrap contracts in the produce section (Mike Madison, Sept. 18).

Readers know I’m sympathetic to the idea of patent reform, but I have to agree with Derek Lowe’s skepticism as he tears a hole in the Michael Heller story told to the WSJ Law Blog about an alleged Alzheimer’s drug that will “earn billions” but can’t be tested because of patent gridlock.  A must read as he eviscerates the law and science behind that statement, and read the follow-up as well.  As Lowe points out,

the safe harbor provisions of the 1984 Hatch-Waxman Act, as reaffirmed in the 2005 Merck v. Integra decision by the Supreme Court [protects] from infringement [claims] in the use of a patented compound for purposes of submitting regulatory filings. And the language of the ruling makes it look like it’s intended to cover all sorts of patented technologies as well.

• Business groups have signed off on dreadful ADA Restoration Act aimed at expanding disabled-rights lawsuits, reversing high court decisions that had moderated the law [WSJ; more here and here]
• U.K. man to win damages from rail firms on claim that trauma of Paddington crash turned him into deranged killer [Times Online]
• Patent cases taken on contingency lead to gigantic paydays for D.C.’s Dickstein Shapiro and Wiley Rein [Kim Eisler, Washingtonian; related last year at Eric Goldman's]
• Fort Lauderdale injury lawyer disbarred after stealing $300K in client funds; per an ABA state-by-state listing, Florida has not enacted payee notification to help prevent/detect such goings-on [Sun-Sentinel; more]
• I’ll pay top dollar for that spot under the bridge: tech firms hope to outbid patent trolls for marginal inventor rights [ABA Journal]
• Enviro-sympathetic analysis of Navy sonar case [Jamison Colburn, Dorf on Law, first and second posts via Adler @ Volokh]
• Obama proposal for youth national service “voluntary”? Well, schools will lose funds if they fail to meet goals [Goldberg, LAT; bad link fixed now]
• Not-so-independent sector: under pressure from Sacramento legislators (Feb. 6, PoL May 30), California foundations pledge to redirect millions toward minority causes [CRC]
• James Lileks on lawyer-friendly Microsoft Minnesota settlement [four years ago on Overlawyered]

• Florida trial lawyers have funneled millions to Gov. Charlie Crist and GOP state legislators; now guess why Orlando isn’t going to get commuter rail [Bousquet/St. Petersburg Times; Sentinel]
• What his ex-law firm told the world was “extremely inappropriate personal conduct” was in reality no more than a “brief, consensual kiss” with co-worker, charges attorney in $90 million defamation suit; Kasowitz Benson says it was following zero tolerance policy [American Lawyer]
• SCOTUS, 9-0, Thomas writing, narrows scope for money-laundering charges over hiding unexplained cash — but will that curb forfeiture abuse? [Grits for Breakfast, Greenfield]
• After West Virginia high court refuses to review $405 million royalty dispute jury verdict against Chesapeake Energy and another defendant, company scraps plans to build $30 million headquarters in the state [PoL]
• Even after discounting anti-corporate rhetoric, there does seem to be a story here about aggressive seed patent litigation tactics used by agri-giant Monsanto, a firm known to our readers [Barlett & Steele, Vanity Fair; earlier]
• Medical liability consequences of much-promoted concept of hospital “never events” [Buckeye Surgeon]
• Cellphone rage update: Judge Robert Restaino ousted for jailing 46 people after one of the annoying devices rang out in his Niagara Falls, N.Y. courtroom [Buffalo News, earlier]

The patenting of software, in contrast to the patenting of chemical and pharmaceutical compounds, generates relatively high litigation costs and low benefits (Pete Warden, Jun. 3, via our comments section; Tim Lee, guesting at Megan McArdle’s, has a three-part review of “an important new book by James Bessen and Michael J. Meurer” on the subject (first, second, third)).

Highly placed attorney with intellectual-property specialists Fish & Richardson accumulates his own portfolio of patents, quits the firm, begins suing Fish & Richardson clients, things get messy fast (Patent Troll Tracker, Oct. 21). Patent Troll Tracker (h/t Ambrogi) looks likely to become part of our regular blog rounds.

• She wore a wire: defense attorney says administrative assistant to one of the three lawyers in Kentucky fen-phen scandal worked as FBI mole, circumventing attorney-client privilege [AP, Courier-Journal, Lexington Herald-Leader, ABA Journal]
• Suing a lawyer because his deposition questions inflicted emotional distress? No way we’re going to open those floodgates, says court [NJLJ]
• Counsel Financial Services LLC, which stakes injury lawyers pending their paydays, says it’s “the largest provider of attorney loans in the United States and the only Law Firm Financing company endorsed by the AAJ (formerly ATLA)”; its friendly public face is a retired N.Y. judge while its founder is attorney Joseph DiNardo, suspended from practice in 2000 “after pleading guilty to filing a false federal tax return” and whose own lend-to-litigants operation, Plaintiff Support Services, shares an office suite with Counsel [Buffalo News] The firm’s current listing of executives includes no mention of DiNardo, though a Jul. 19 GoogleCached version has him listed as President;
• Patent litigation over cardiac stents criticized as “a horrendous waste of money” [N.Y. Times]
• More on the “pro bono road to riches”, this time from a California tenant case [Greg May, Cal Blog of Appeal]
• Not a new problem, but still one worth worrying about: what lawyers can do with charitable trusts when no one’s looking over their shoulder [N.Y. Times via ABA Journal]
• Has it suddenly turned legal to stage massive disruptions of rush-hour traffic, or are serial-lawbreaking cyclists “Critical Mass” just considered above the law? [Kersten @ Star-Tribune]
• “Look whose head is on a plate now”: no tears shed for fallen Lerach by attorney who fought him in the celebrated Fischel case [ChicTrib, San Diego U-T]
• “Jena Six” mythos obscures graver injustice to black defendants, namely criminal system’s imposition of long sentences for nonviolent offenses [Stuart Taylor, Jr. @ National Journal -- will rotate off site]
• Economist David Henderson on restaurant smoking bans [Econ Journal Watch, PDF, via Sullum, Reason "Hit and Run"]
• Technical note: we learned from reader Christian Southwick that our roundups were displaying poorly on Internet Explorer (Ted and I use other browsers) and we found a way to fix. So, IE users, please drop us a line when you encounter problems — we may not hear about them otherwise.

“Troll was a derivative of, er, me,” says Chicago patent litigator Raymond Niro, a pioneer of contingency-fee IP practice:

Niro’s former partner Gerald Hosier found fame and fortune turning Jerome Lemelson’s patents on bar code technology into a billion-dollar licensing business. But Niro taught the patent world a more enduring lesson: Lemelson isn’t unique. Like an irritating mosquito that GCs can’t squash, Hosier’s licensing approach could be applied over and over again, on different patents across different industries for huge profits. Niro has extracted royalties on everything from patents covering hemodialysis catheters to wireless technology used to locate items of interest in online maps. In the process, he’s made some serious royalties of his own: a Falcon 10 jet, six Ferraris, acres of land in Chicago, Boca Raton and Aspen, and a $250,000 gift to DePaul University endowing the Raymond P. Niro professorship in intellectual property law…. Love him or hate him, Niro’s methods have become ingrained in the patent world.

(Lisa Lerer, IP Law & Business/Law.com, Jul. 20).

All sorts of interesting reporting on the news side of the subscriber-only WSJ:

In one of Douglas Fougnies’s early business ventures, he provided phony new-vehicle titles for stolen cars. His partner, Larry Day, is a onetime blackjack dealer in Las Vegas.

Together, the two men have found a more lucrative line of work: suing cellphone companies for patent infringement. Earlier this year their company — which consists of four employees and six patents — won $128 million in damages from Boston Communications Group Inc. and four other companies over alleged misuse of a 1998 patent.

Suing can be as lucrative as manufacturing as a way to profit from a patent, sometimes a lot more so:

Lured by the potential returns, hedge funds and other institutional investors now are bankrolling businesses that buy up patent portfolios. More law firms, including some branching out from product-liability and malpractice work, are taking patent cases on a contingency basis. That means the law firms are paid a percentage of any damages awarded but little or nothing if the patent-holder loses.

(William M. Bulkeley, “Aggressive Patent Litigants Pose Growing Threat to Big Business”, WSJ, Sept. 14)(sub). For more, see Sept. 1, May 2 and many other entries on our technology/intellectual property page.

In a major development, however, the federal judiciary seems to be ringing down the curtain on the most successful and controversial patent-prosecution shop of all time (Aug. 23, etc.): “After hundreds of companies paid inventor Jerome Lemelson more than $1.5 billion in licensing fees, the U.S. Court of Appeals for the Federal Circuit has concluded that his patents aren’t enforceable after all. The Federal Circuit ruled Friday that Lemelson’s 18- to 39-year delay in prosecuting patent claims relating to machine vision and bar-code technologies was unreasonable.” (Brenda Sandburg, “Lemelson Patents Ruled Unenforceable”, The Recorder, Sept. 13; Dennis Crouch, Sept. 9; IP Litigation Blog, Sept. 11; David Jacobs, MassLawBlog, Sept. 15; TechDirt, Sept. 12; LemelsonInfo.com; AP two-part series reprinted in Miami Herald, Aug. 20 (part I) and Aug. 21 (part II)).

The Scotsman takes a hard look at the legacy of the late patent king (Craig Howie, “New doubts on serial inventor”, Aug. 23)(more).

The Canadian maker of the wireless email device in March agreed to pay $450 million to settle the claims of NTP, a company which manufactures nothing and instead makes its way in the world by asserting rights in old patents. Not all is sweetness and light, however: “Critics of the patent system maintain that these companies — called ‘patent trolls’ by their detractors — rely on excessively broad patents, particularly for software, that should never have been granted in the first place.” For more on the controversy over patent-licensing firms, see various posts on our technology and intellectual property page. (Ian Austen and Lisa Guernsey, “A Payday for Patents ‘R’ Us”, New York Times, May 2).

“In the last several years, patent lawyers have flocked to Marshall, a small northeastern Texas town of 25,000, because of its speedy court process, patent-enthusiastic judges and juries considered ideal for hearing intellectual property cases. This year alone, the court has seen 59 patent cases, more than triple the total in 2003, which saw just 14 patent suits.” Intel made a $150 million payout after adverse rulings by a Marshall judge, and Cisco is currently being sued in what plaintiff’s lawyers hope will be a big-payout case.

Among those who defend the venue against critics is Charles Baker of Houston’s Porter & Hedges, who concedes “that some defense attorneys are afraid to try cases there because of its pro-plaintiff reputation, which he disagrees with. He said that the [court's] rocket docket also turns off some defense lawyers who feel pressured to produce evidence quickly, leaving little time for preparation.” Curiouser and curiouser: “Baker said that Marshall’s large elderly population also provides a good jury pool for intellectual property cases. ‘There are a lot of old people who don’t have a problem with sitting weeks at a time and listening to complicated issues,’ Baker said.” (Tresa Baldas, “Texas IP Rocket Docket Headed for Burnout?”, National Law Journal, Dec. 28)

For a very different view of the reasons for Marshall’s popularity, check out M. Craig Tyler (Wilson Sonsini), “Patent Pirates Search for Texas Treasure”, Texas Lawyer, Sept. 20 (PDF): “Juries in East Texas, unlike those in Houston, Dallas or Austin, are much less likely to have a member with any technical training or education, which exacerbates the problem from the defense perspective, but makes East Texas federal courts an attractive venue for would-be plaintiffs, who know that the jury will, instead, gravitate toward softer or superficial issues that are difficult to predict.” The result is to facilitate the activities of what Tyler calls “patent pirates”: enterprises that exist to file patent suits rather than to manufacture products, and which benefit from asymmetrical costs of litigation (discovery in a patent case can cost the manufacturer-defendant a million dollars or more, while the plaintiff license-holder may have few or no documents worth discovering).

According to Tyler, a “simple, nonspecific complaint”, which need not identify any infringing products sold by the defendant, “has a nuisance value of a few hundred thousand dollars the minute it is filed and served.” Tyler’s outspoken article in turn drew a response: Michael C. Smith, “”Patent Pirates” Only Exist in Neverland”, Texas Lawyer, Oct. 10 (PDF).

Big news from federal court in Nevada: U.S. District Judge Philip Pro ruled that the estate of deceased inventor Jerome Lemelson “can’t enforce 14 patents relating to machine vision and bar-code technologies because the prolific inventor and his estate waited too long to pursue the alleged infringers. The so-called ’submarine patents’ are invalid, Pro ruled, and are not infringed by products made by Symbol Technologies Inc. and Cognex Corp.” (Brenda Sandburg, “Judge Torpedoes Dead Inventor’s Patent Claims”, The Recorder, Jan. 27; Cognex press release, Jan. 26). Jesse Jenner, a Fish & Neave attorney who represents Symbol and Cognex, told The Reporter that defendant companies have paid Lemelson interests an estimated $1.5 billion in the face of threatened or actual litigation. “This is probably the most substantial licensing program of any individual patentee in history,” Jenner said. “It’s now essentially terminated.” For more on the fabulous Lemelson patent litigation machine, see May 10, 2001 and links from there; Feb. 11-12, 2002.

Archived entries before July 2003 can also be found here.

“Next: Mercedes sues Merced, Calif.” (Volvo v. Volo Car Museum), Jun. 24; “‘Illegal art’“, Feb. 13; “We own e-commerce“, Feb. 4-5. 2002: “Using his own name a legal risk” (Bill Wyman), Dec. 13-15; “Macaulay on copyright law“, Oct. 14; “Skittish at Kinko’s” (won’t make copies of customer’s own published writing), Jul. 26-28; “Stolen silence?” (John Cage composition), Jul. 19-21; “Law blogs“, Jul. 3-9; “‘Top ten new copyright crimes’” (satire), Jun. 3-4; “‘A fence too far’” (Hollings bill), May 20-21; “ReplayTV copyright fight“, May 6; “A DMCA run-in” (linking to copyright violation), Apr. 16-17; “Intel Corp. versus yoga foundation“, Apr. 1-2; “Web speech roundup“, Mar. 25-26; “I’ve got a legally protected bunch of coconuts“, Mar. 13-14; “British Telecom claims to own hyperlinks“, Feb. 13-14 (& Oct. 1-2); “Overlawyered film sets“, Feb. 8-10; “‘”Let’s Roll” Trademark Battle Is On’“, Feb. 4-5 (& Feb. 11-12);  “‘Aborigines claim kangaroo copyright’“, Feb. 1-3.  2001: “Bioterror unpreparedness” (antibiotic Cipro), Nov. 28; “Byways of IP law” (cat-walker patent), Nov. 7-8; “‘Mother of all copyright battles’” (Sesame Street v. Osama bin Laden?), Oct. 15; “Radio daze” (service mark), Aug. 31-Sept. 2; “‘Trolling for dollars’” (patent enforcement), Aug. 29-30; “‘Jailed under a bad law’” (DMCA, Sklyarov case), Aug. 27-28; “‘Girl from Ipanema is sued over the song she inspired’“, Aug. 15; “‘Melbourne man patents the wheel’“, Jul. 24; “Stories that got away” (DMCA), July 23; “Domain- name disputes are busting out all over“, June 29-July 1; “Barney’s bluster“, Jun. 25 (& “Welcome Slashdot readers“, July 5); “Mich. lawyer’s demand: get my case off your website” (”Love Your Neighbor”), Jun. 20 (& letter to the editor, July 6); “Intellectual- property dispute Hall of Fame” (dueling bra balls), June 6; Maori tribes v. Lego“, June 4; “‘Gone with the Wind’ parody case“, May 25-27; “Fortune on Lemelson patents“, May 10 (& see Feb. 11-12, 2002;  Jan. 19-21, 2001 (checkout scanners); Aug. 28-29, 1999); “Value of being able to endure parody without calling in lawyers: priceless” (MasterCard), April 25; “Patenting the Web?“, April 3-4; “Trademark litigation hall of fame” (”Love Your Neighbor” vs. “Love Thy Neighbor”), April 3-4; “Scientologists vs. Slashdot“, March 19-20; “Can you own common words?“, Mar. 7-8; “‘Top jury awards soar in 2000′” (IP leads trend), Feb. 23-25; “By reader acclaim: patented PB&J“, Jan. 30 (& letter to the editor, Feb. 12, discussion in columns, May 1); “Someone might get confused” (Pillsbury claims infringement from tech engineers’ use of “bake-off”), Jan. 22-23; “In the gall department” (Napster sues alleged trademark infringer), Jan. 11. 2000: “Judge shopping, cont’d” (Rambus vs. Hyundai), Nov. 16; “CueCat’s legal claws“, Oct. 20-22; “Web-copyright update: ‘Dialectizer’ back up, ‘MS-Monopoly’ down“, Aug. 16-17; “eBay yanks e-meter auctions” (copyright claim), May 3; “Furor just one click away” (Amazon patent), March 21.  1999: “More assertions of link liability” (DVD hack), Dec. 31; “For this we gave up three months of our lives?” (jury hears abstruse patent dispute), Oct. 20; “Copyright and conscience” (goodbye to “Dysfunctional Family Circus”), Oct. 7.