law and justice

house of lords

Thursday, March 24, 2011

the house of lords is the oldest second chamber in the world . it had been in continuous existence in one form or another more than a thouse years . it gtew out of the great council which was the seccessor of the saxon witan in 1295, when edward 1 called his model parliament , all the different classes of people summoned to attend met in one single assembly .but afterwards they split up into three groups..nobles , clergy , and commons . later on the greater clergy found its intrest in common in the nobles and they assosiates together into one body which came to be called house of lords.

How Patent Reform Will Affect Inventors and Businesses

Wednesday, March 23, 2011

The United States Senate has passed the America Invents Act, the patent reform legislation that has been working its way through committees for several years. Because the Act passed the Senate by an overwhelming bipartisan majority, a form of it is also likely to be approved by the House of Representatives. Changes are also possible as leaders in the House have their own ideas about patent reform.
The Act has a number of provisions that will be advantageous to inventors. The first is a transition to a first-to-file system. While this may seem to be a disadvantage to individual inventors, in practice, it is slightly advantageous to individual investors. In the past, inventors could show prior inventorship, even if they filed their patent application later than another inventor, in an interference proceeding. However, interference proceedings are expensive, and are usually won by the side with the most money such as big corporations. Transitioning to a first-to-file system will likely help individual inventors who often file provisional patent applications early in the inventive process.
Another advantageous provision allows for the United States Patent and Trademark Office (USPTO) to set fees and keep the fees that it collects. In the past, the USPTO has been forced to divert much of the revenue from filing fees to government coffers, reducing the number of examiners it was able to hire. Allowing the USPTO to retain all the fees it collects will ultimately increase the number of examiners and reduce the patent backlog. In addition, the USPTO will have more latitude to implement its strategy of allowing some patent applications to receive accelerated examination for a fee, while allowing other applicants to delay the examination of their applications. Both new options will be very advantageous to inventors both by increasing options and reducing the application backlog.
The bill also includes several provisions making it easier to oppose an application, both during examination and after grant. In the past it was difficult for interested third parties to influence the prosecution (examination) process. The current bill makes it easier for third parties to submit art for review with explanations about the arts importance.
In addition, the Act allows third parties to oppose post-grant patents in a new opposition system that may have advantages over the current reexamination system. This may help some companies avoid infringement litigation by allowing the more rapid invalidation of questionable claims.
The patent reform legislation also has something for taxpayers. It may eliminate some tax strategy patents, although under the Supreme Court's Bilski, this type of patent has become less important.
We will have to wait and see what the final legislation looks like. However, it is likely to be positive and to increase the importance of filing early provisional applications to secure the earliest possible filing date for an invention.

Protect Your Software With Patents

Software makes up a large part of the asset base of most businesses. A recent survey found that 80% of the value in an average publicly traded company was in non-tangible assets. Custom software makes up a significant portion of those non-tangible assets, and is often a critical a company's competitive advantage.
Software inventions can be patent protected in the United States. The Supreme Court made it clear in its Bilski decision that processes and transformations performed by a machine are patentable subject matter. However, two characteristics of software inventions create special challenges in protecting them.
The first challenge is that many coded innovations are buried in thousands of lines of compiled code and so are difficult to detect. A competitor may reverse engineer your code and use it in a product, and it may still be difficult to determine if the competitor is using your invention, even if you examine the competitor's code.
The second challenge is that the functions performed by code can be done many different ways. Unless a patent application is carefully drafted, an average programmer will have little trouble finding an alternate way to achieve the same result.
I address these challenges in several ways. First, I like to protect inventions where one can detect infringement. For example, infringement is much easier to detect at interfaces. Interfaces with individuals, devices, and third-party applications are usually accessible for examination and testing. Thus the infringement is detectable, and action can be taken to either secure royalties or stop the infringement. Interfaces also tend to limit a competitor's options in designing around your invention.
A second strategy is to focus on data structures. For some applications, data structures and their functions are easy to identify. Protecting the elements of the invention relating to the data structures allows your code invention to be protected in another way. This protection strategy is particularly effective for inventions that are not easily identified through an interface, and creates very enforceable intellectual property. A competitor is also limited when the data structure is claimed broadly.
A third strategy is to identify and protect important results of a software invention. Many results, such as data encryptions, digital encoding, and similar results can easily be tested for the copying of the method of achieving an important result. When a competitor is getting the same results with great precision, it is highly likely that they have copied an invention.
Protecting your software invention with an effective, enforceable patent gives you the ability to stop a competitor from taking advantage of your innovations. It also gives you the option of licensing your invention, providing an additional revenue stream and defraying the costs of developing software assets.

Administrative Freeze of Personal Accounts

In the world of bankruptcy, debtors are protected from collections initiated by their creditors. Under the current bankruptcy code, debtors are required to list all available assets and liabilities. A trustee is assigned to the case in order to observe and enforce the will of the bankruptcy court. An automatic stay is granted for the debtor against claims of creditors until the case is dismissed.
Many debtors develop multiple layers of relationship with their creditors. Most bankruptcy filers maintain a checking or savings account with the same financial institutions that issues them credit cards and other forms of financial products. Thus, some financial institutions developed an internal mechanism allowing them to setoff debtors' assets against outstanding debts. This process is often identified as Administrative Freeze.
Instead of resolving the problem, this expanded banker's dilemma, legal problems resulting from financial institutions making claims against personal accounts of debtors who file bankruptcy. Courts have battled over the exact meaning and implication of Administrative Freeze. In 1983, The Third Circuit held that Administrative Freeze violated the automatic stay (United States v. Norton). The Ninth Circuit upheld Administrative Freeze as a legal process to protect rights of the creditors (Bank of National Trust and Savings Assoc. v. Edgins, 1984).
In 1995, the U.S. Supreme Court ruled in support of this (citizens Bank of Maryland v. David Strumpf). Justice Scalia delivered the unanimous court opinion. The high court found that this Freeze did not violate automatic stay granted to debtors under bankruptcy laws. Justice Scalia stated that bank accounts are promises to pay conditioned on terms of contractual agreement which existed prior to bankruptcy filing. The actual physical account becomes part of the bankruptcy estate. Banks' actions - denying debtors access to their accounts upon filing of bankruptcy - protected the estate formed by the bankruptcy filing (first), and it constitute refusal to perform due to legal changes.

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NJ Senate Resolution Urges NJ Supreme Court Justice Rivera-Soto to Resign

And the political snowball keeps rolling in New Jersey. On Thursday, February 17, 2011, the New Jersey Senate passed SR-105, a resolution urging Justice Roberto Rivera-Soto to resign his seat on the New Jersey Supreme Court.
Last December, Justice Rivera-Soto began abstaining from votes of the state's highest court, stating that the court as presently constituted with "one Chief Justice, five Associate Justices and a Judge of the Appellate Division selected unilaterally by the Chief Justice,... is unconstitutional and its acts are ultra vires."
Sponsored by Senator Nia Gill, D-Essex, the Senate resolution states:
"It is the sense of the Senate that the actions of are prejudicial to the administration of justice and constitute a serious violation of the public trust."
The resolution is among a string of events that have unfolded recently in New Jersey politics, implicating the future of the state's supreme court.
Last May 2010, Governor Christie announced that he would not be renominating New Jersey Supreme Court Justice John Wallace Jr., the only African-American serving on the court.
New Jersey Supreme Court Justices receive initial appointments for 7 years, and may thereafter be reappointed for life. The governor's decision marked the first time a sitting justice would not receive reappointment.
To replace Justice Wallace, Governor Chris Christie nominated republican Anne Patterson, a partner at Riker, Danzig, Scherer, Hyland & Perretti, a large law firm in Morristown.
In response to Patterson's nomination, state Senate President Stephen Sweeny, who served as acting governor during the snow storm of December 2010, stated that the legislature would not give advice and consent regarding Patterson's nomination until Spring 2012, when Justice Wallace would have left under mandatory retirement.
After Justice Wallace left the bench in May 2010, Chief Justice Stuart Rabner invoked the "temporary assignment clause" of the New Jersey Constitution. The clause allows a senior judge of the lower Superior Court to fill a vacancy on the Supreme Court. Chief Justice Rabner appointed Appellate Division Judge Edwin Stern, reasoning that the appointment was necessary due to the Supreme Court's pressing caseload.
Following this appointment, Justice Rivera-Soto began abstaining from decisions as long as the Court remained "unconstituionally constituted." In two consecutive opinions, he argued that the "temporary assignment clause" only allows the chief justice to appoint lower court judges when necessary to obtain a quorum.
In a more recent opinion, however, Justice Rivera-Soto has backed down from his stance, stating that he would only vote when the vote of the appointed justice was not the swing vote.
"I will cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the SupremeCourt participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case."
Online, the Senate's resolution has sparked fierce reactions from both sides of the debate:
"Rivera-Sota is a blemish on the NJ Supreme Court. We should bring back a respectable judge like Wallace."
"It is actually Sweeney and the Democrats who should resign or be impeached for thwarting Governor Christie's constitutional right to appoint a new justice to the Supreme Court. At least [Rivera-Sota] has disclosed to everyone a reason for why he is doing what he does.

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How to Locate Court Recods

These days you never know who you live next to, who you work with, who you trust information with and more importantly, who takes care of your children at school. This information is something that everyone should know, to ensure that your children and your private information are kept secure. There are people out there that have bad intentions and might have prior history of jail time or crimes committed. This information is not always easy to find and accessible. Knowing how to access this information is very important and can make a big difference in certain situations.
Another good reason to have access to this information is to make sure that your record is clear. Many people have unpaid parking tickets and even warrants that they are not aware of. The last thing you want is to have something like this that is left outstanding without you knowing it. This can lead to disaster. You could experience big penalties or even jail time for such outstanding issues. It never hurts to run a court records check on yourself before a really important interview, if you are not 100% sure that your record is clean. Even if you think it's clear, it's recommended to do this every 5-10 years just to make sure there haven't been anything mistakenly assigned to you.
There have been several federal laws passed recently that make obtaining local court records easier to accomplish. The old process used to involve a lot of paperwork and a lot of waiting, but these days you can get access to the information instantly in some situations. There are several ways to access this information.
1. Visit the courthouse
You can take a trip to the courthouse in the county in which you live to get your records. You can request records on anyone you want and they are required to fulfill your request. With the new software programs and databases used to store all of the court records, it should only take around 20 minutes to get the information you request. It may take some time waiting in line and getting to someone who can help you, but the information doesn't take long to retrieve.
2. Call the courthouse
Another option is to give the courthouse in question a call. You can order whatever records you are interested in for a small fee. The fees can range from $25-$50 generally. You will have to wait 3-5 business days to receive the records in the mail. If you do not live near the courthouse where the records reside, this may be a good option.
3. Online Court Records
The internet has many court and public records resources available to the general public. Some of these services only give you access to general information and not detailed records, so you should be careful and fully review the features of the service before paying for it. These services are generally more expensive than ordering records from a courthouse but if you need to lookup records from multiple counties or states, this may be a good option.

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State Bar Recommends Implementation of Technology to Reduce Court Costs

The lawyers saw it coming long ago. With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect? Judicial reform.
At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009. The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.
Last week, the task force announced its findings and recommendations. The following are the more significant findings and recommendations of the task force:

Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs. This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others;
Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels. The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data;
The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence;
Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and
Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources. A familiar song among the state workers and teachers spread throughout the counties and across the nation.
The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system. There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.
Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case. Usually, in a few hours, the document show-up in your email.
Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse. As for the Wayne Circuit Court, however, not so much...
Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County. This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.
Electronic docket access differs widely from county to county. In Genesee, the docket entries of a case is displayed in fragmented screen images. If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text. A waste of paper, and definitely not user-friendly.
While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.
Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan. From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.