Welcome to the Dog Days of Summer and Blawg Review #19, hosted this week by the Patent Baristas. We’re always glad to have company over so grab a cup of joe and we’ll see what’s been going on around the blogosphere. As is typical here, it’s currently a balmy 98 degrees in beautiful Cincinnati, OH, with the humidity hovering somewhere near steam bath. Bear with us if we sometimes seem incoherent due to the heat.

On Fire

Ellen Podgor writes in the White Collar Crime Prof Blog about the frightening situation where light sentences are received by cooperating witnesses involved in the WorldCom case and harsh sentences are received by those who seek trial. Podgor makes several potent observations, including:

“The Bill of Rights provides everyone accused of a crime with the right to a jury trial. Are we punishing individuals who avail themselves of this right?”

On Jury Geek, Clay Conrad notes the death of jury trials, writing that “We attorneys have gradually adapted to measures that reduce the viability or availability of jury trials – from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time consuming mediation prior to trial. As the jury trial gets rarer, and harder to attain, we adapt to our

“To mix culinary metaphors, we need to hop out of the pot before the jury is toast. Too often, we fail to recognize or object to procedures that raise the risk or cost of a jury trial.”

Denise Howell at Bag and Baggage points to an interesting resource where you can search the published opinions of Judge John G. Roberts, courtesy of the folks at askSam. PrawfsBlawg‘s Kaimi Wenger writes about how to get fired for obscene political e-mail. Monica Bay, at The Common Scold, continues her pursuit against business speak everywhere. Learn how you can come up with a “Strateg-olution” to this problem.

Professor Douglas A. Berman, on Sentencing Law & Policy updates us on the (declining) state of the death penalty. Beth Simone Noveck, on Cairns, claims to have another patent troll solution in “Peer to Patent” (PtoP): A Modest Proposal.

Adam Smith, Esq. (a/k/a Bruce MacEwen) asks “Where Is Your Firm’s Next Generation of Leaders Coming From?” in his article from Managing Partner magazine, which helps distill the roadmap:

Create a vision, walk the talk, face hard realities, breed cohesion, and celebrate wins.

hygrometerdial.jpegBalkinization, a group blog highlighted as “an unanticipated consequence of
Jack Balkin” brings us a very worthwhile discussion of Substantive Due Process as it developed in the Dred Scott decision and its implications for modern jurisprudence, including the recent Kelo decision. Balkin notes that the closest analogy to the substantive due process argument in Dred Scott v. Sandford isn’t Roe v. Wade. It’s the dissenters’ position in Kelo v New London. He notes that powers, in relation to rights of person, are:

“…denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

Colin Samuels of Infamy or Praise has a helpful post warning us that technology has been developed to determine when a caller is being abusive or is feigning attention, impolitely labeled the “Jerk-o-Meter“. [Note to Self: Do NOT let Significant Other get a hold of this!] Infamy or Praise ponders whether or not this device out of MIT could change the dynamics between what is deemed “zealous advocacy” and what is deemed “abusive conduct.” Could carefully scrutinized lawyers return to a more formal, principally written, professional practice if these new technologies become more developed and widespread?

The IP Counsel Blog by Todd Mayover has some thoughts on protecting next-generation therapeutics while avoiding inherent anticipation. As seen in Schering v. Geneva, 339 F.3d 1373 (Fed. Cir. 2003), the Federal Circuit held that a patent claim which structurally described a metabolite of loratadine (Claritin®) was inherently anticipated and invalid because the metabolite was formed in a patient’s body upon ingestion of loratadine.

Lawpundit takes note of a new Podcasting Blog at Patent Pod. Patent Pod offers computer-spoken .mp3 audio files of entire judicial opinions (with some material, such as citations, omitted). See Ericsson v. InterDigital v. Nokia. Lawpundit also has some interesting notes on globalization and its future consequences that are worth a read.

Heat Wave

heat.jpegIn a post from this past week’s Illinois Trial Practice Weblog, Evan Schaeffer provides pointers on “how to start a deposition..” Being an IP attorney who drafts patents and writes opinions for a living, I found this glimpse of life on the other side (the parallel universe, so to speak) something I frankly had never thought about, but yes, something any attorney should know about but may have been too afraid to ask. Something like the old axiom from my professor days in that “there is no dumb question, only dumb answers.”

Three current and hot law student podcasts can be found at the following sites:

1) Law School Podcast at;
2) Life of a Law Student at; and
3) Ambivalent Voices at

As always, the eccentric (and sometimes quirky) Yeoman Lawyer blawg shows us life on another side of lawyering with some interesting offerings for the week. For instance, how many lawyers are also farmers and how many lawyers stop to look at their cows on their way back from a deposition?

It might not be law-related, but Neil J. Squillante at Techno-lawyer blawg writes that “a Retina Specialist Has an Important Message for Diabetics — Get a Fluorescein Angiogram“…. With 3.1% of Americans suffering from diabetes, it’s a good bet that some Blawg Review readers (or their loved ones) are among those who suffer from diabetes. While this Post doesn’t concern the law, it could help save the sight of diabetics who read Blawg Review.

As a previous member of the “publish or perish” set, I was intrigued with the “law review publishing experiment” post by Professor Stephen Bainbridge on his blawg site from this past week. In his post he states that “logically, of course, the most likely way blogging makes one’s name familiar to editors of law reviews is that one’s blog readership includes a fair number of such editors.” If you’re a law review editor you might want to see what he’s proposing. However, now that the law review folks are on notice as to the “experiment” has the experiment been doomed? Time will tell.

The Ambivalent Imbroglio writes an insightful post regarding that AP story which ran last week regarding 3L’s and the necessity, or lack thereof for that third year of law school, as this. This post, and associated links, is well worth several reads for the ABA types, law school profs and students as well. Also, be sure to check out the countdowns.

Hot & Bothered

Minor Wisdom’s Ray Ward takes up the issue of a judge that’s steamed at Wal-Mart’s counsel. Judge Pregerson of the Ninth Circuit publicly chastising counsel for the defendant, Wal-Mart, for what he considered to be harsh language toward the trial judge in Wal-Mart’s brief. Ward pulls out the passages that I think may have been the ones to draw the judge’s ire. Do you think it’s a good idea to accuse the judge of “glossing over” claims or of “sidestepping the obvious”? Warning: Read this to learn how to avoid similar mistakes.”

Dennis Crouch, over at the Patently-O: Patent Law Blog, has a nice update on Capon v. Eshhar v. Dudas (Fed. Cir. 2005) where the Federal Circuit held that a nucleotide sequence of claimed DNA not required to satisfy the written description requirement when the sequence is already known in the field. Important stuff for the Baristas.

At Going to the Mat, Matt Johnston asks will there be any more legal challenges to the McCain-Feingold Act. He feels that there should be since there are now two potential plaintiffs with standing to sue: Shrink Missouri and Buckley. The only question is, will they? Johnston presents three grounds for legal arguments for the invalidation of the Millionaire’s Amendment.

The Wired GC writes this week about the differences between business development, marketing and sales and how one firm even has a director of sales.

For those who think that any mention of sales is antithetical to how legal services are marketed, three words come to mind: get over it. And for the marketing mavens who would have you believe that corporate legal services are just another commodity to be sold, three different words come to mind: not so fast.

Selling the GC – Lesson #2: Pitching is still defense; a personal referral is the best offense.


We have a love/hate relationship with Powerpoint (most presentations suck) so it was refreshing to read Feld Thoughts asking “How Would The Civil War Have Ended If Lincoln Had PowerPoint?”

Announcer: And now please welcome President Abraham Lincoln.

President Lincoln: Good morning. Just a second while I get this connection to work. Do I press this button here? Function-F7? No, that’s not right. Hmmm. Maybe I’ll have to reboot…

See the Presentation here.

George Lenard over at George’s Employment Blawg writes about the current state of workers being underutilized and bored at work. Despite the barrage of reports that Americans are working themselves to death (Note: a 2000 report showed that American workers spent the equivalent of almost a full month more per year on the job than they did in 1967), the Washington Post (reg. required)reported that 55 percent of all U.S. employees are not engaged at work. The article goes on to point out that boredom increases job stress, while decreasing morale, job satisfaction, and even safety. This may have more to do with not finding a good work-life balance.

George recommends that both employers and employees should be looking for productive uses for such time. For professionals and other self-employed workers, structured marketing-related activities, including networking, are a productive boredom-beater. See his post “Bored out of a job?”


Keep Cool.jpg.jpg The Health Care Blog is a blog that covers the health care industry and health regulatory/compliance issues along with other legal odds and ends. We found this site useful since many biotech inventions bring up various HIPAA questions. A recent post from Bob Coffield considers how West Virginia hospitals might respond to a multi-million gift offer from one or more of the many prominent West Virginia plaintiff’s lawyer. He writes:

I can see it now “___________ (add your favorite West Virginia medical malpractice lawyer) Tower” at ____________ (add your favorite West Virginia hospital).

In another recent post, he questions if the benefits from a national network of electronic health records are worth $200 Billion. One of his firm’s IT department members has created a law firm IT related blogs cleverly titled “Law Firm IT: The view from the server room.” Coffield also recommends Hospital Impact for health care-related blogging (with skins).

Lawrence Taylor looks at The Road to Prohibition on his DUI Blog. He writes that the ultimate goals of Mothers Against Drunk Driving lay well beyond lowering DUI levels to .08%, .05% and ultimately to .01%. The ultimate goal is, simply, resurrecting the failed experiment of prohibition:

“The first step, of course, would be a gradual shift of focus away from drinking *and* driving to one of just drinking. And the logical starting point would be the more politically-acceptable target of underage drinking.”


In Wake up and smell the trade mark opposition, Jeremy Phillips, on the IPKat Blog, writes about how the Ethiopian government is trying to prevent coffee giant Starbucks from registering the words “Ethiopian coffee” as a trade mark. The IPKat wonders if there’s something missing from this tale. Coffee is grown in Ethiopia and has been almost since the dawn of humanity. If “Ethiopian coffee” is used for coffee from Ethiopia, it’s unregistrable as a trade mark because it’s totally descriptive; if it’s used for coffee from anywhere else, it’s unregistrable because it’s deceptive.

In a related note, the Dead Programmer’s Cafe shows how the Starbucks logo itself has made some interesting changes over the years to become less racy. Apparently, some consumers found the suggestive split tail of their topless siren too lurid and a simplified logo was introduced, hiding the siren’s breasts under waves of hair, and that in turn was cropped and enlarged so the split in the siren’s tail would no longer show. She eventual lost her belly button, too. I guess it drove customers wild.

Tom and Ray over at Car Talk have a brand-spanking-new Car Talk Auto Advisor. Basically, you tell the Advisor about your driving habits, your automotive likes and dislikes… and it’ll tell you what new cars you should consider. Apparently, we should be driving a Peugeot 505. Speaking of cars, the Baristas are considering getting Patent Barista emblems for our cars from Your Emblem.

SPF 50

heat sizzleDukes of Hazard gets burnt – Blawgers at PHOSITA have posted a piece on how a debacle behind the scenes of this movie, which has been less publicized by the studio, has cost the studio millions in $$ and left them burnt. In their post regarding the Dukes of Hazard movie, Phosita blawgers note that this movie was actually based on a never-seen movie called “Moonrunners.” In the end, the copyright holder obtained $17.5 million for the rights to a movie that nobody has seen. Get those Daisy Dukes cheap while you still can!

In a second post for this past week, PHOSITA also discusses “the business of patents” and with this post, adds some numbers and insightful commentary to what a business this truly is. “Part of the mystery of intellectual property (IP) lies in its intangible nature. After all, when a person gets a patent, all they have to show off are a few papers. However, businesses are increasingly recognizing the value that these few papers can hold.” From licensing revenues, to royalties, to gaming the patent system in the U.S. and in foreign countries, this post is worth a read for anyone that handles any type of IP matters.

The Conglomerate’s guest-blogger Joshua Wright discusses the “Economics of Payola” in a thoughtful post from this past week. In this post, he describes payments for product distribution ranging from arrangements in grocery stores to payola in the music industry. In his post, Joshua writes that “competition for product distribution is crucial to a variety of industries: slotting allowances for grocery store shelf space, payments for inclusion in mutual fund “supermarkets,” and for listing preference in search engine results. Despite the widespread use of payments for distribution in markets, payola can lay claim to the most colorful history of regulation and controversy.’ In one example, we have NY AG Eliot Spitzer’s investigation of Sony BMG Music Entertainment resulted in an agreement prohibiting Sony BMG (others may follow) from making payments in exchange for radio airplay. I found this post to be quite interesting since these are things I have wondered about since I encounter them everyday and I keep wondering why that radio station I listen to keeps playing the same songs over and over again.

In a series of posts from this past week, The Mommy Blawger discusses rights of mothers to breast feed in public. When will our breast-obsessed nation get over itself and allow mothers to feed their children in public. Must we all jet to Europe so that we can nourish our babies every 2-4 hours? Besides the emotional issues here, Mommy Blawger does a nice job discussing the more legal maneuverings involved with this debate. Don’t people have more important things to devote their time to than to harassing women for breastfeeding their children? In her post she states that “what many people do not know is that breastfeeding in public is legal in every state. A mother does not need to “cover up” or go somewhere more private. More than half of states have laws specifically protecting this right, but even in those that do not, it is still legal to breastfeed in public.”


First up is the linguistically-inclined site, Unused and Probably Unusable by blogger Eh Nonymous. While we’re personally against anonymous blogs, it has an interesting discussion of why large companies are often so afraid of class certification, using the class action against Wal-Mart as an example. Also, check out the discussion about whether the word niggardly should ever be used. We generally don’t use big words but if you’re of a polysyllabic bent, you’ll find it interesting and not so easy to solve.

The profoundly gifted and prodigious J. Craig Williams, at May It Please The Court, says it’s time to Pave Paradise, Put Up A Parking Lot and Catch A Yellow Cab.

Williams poses: Try to combine Joni Mitchell’s Big Yellow Taxi song with Chuck Berry’s Nadine and see if you can come up with a Ninth Circuit opinion on trademark protection in Yellow Cab v. Yellow Cab. They both want to use the same name, and prevent each other from using it. But, when you say “Yellow Cab” do you think of either of these companies or just a taxi?

“It’s getting hot in herre (so take off all your clothes)”…Nelly.

And in a final commentary to one of the Barista’s favorite blog sites (as opposed to blawg sites), our review could not be complete with kudos to Go Fug Yourself. In the Baristas world of law and science, this is pure cotton candy but also pure enjoyment for us. Fuggers Heather and Jessica present Freaky Fug Friday: Salma Hayek.

Really Cool
stage21.jpgWe can’t leave without noting Lance Armstrong’s triumphant farewell to cycling in Paris with his seventh consecutive Tour de France victory. After following Team Discovery‘s 22 day, 2,241-mile trek across France, we got to see Armstrong finish first with a time of 86.15.02 — at an average speed of 25.882 mph! Lance, we’re gonna miss ya.


Thanks for dropping by and visiting our place. We’ll meet at your place next time.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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  1. on Niggardly, and other unhappy words

    [update: a big hello to Blawg Review readers, and a thank-you to Patent Baristas for including this post.]

    In which I con…

  2. Class actions: why certification makes or breaks a case

    Another great Class action article (HT: Howard again) (aside: HT is the abbreviation, commonly used by bloggers, to say Hat Tip, meaning a Tip of the Hat or casual salute to, another blogger or journalist for pointing out the relevant source.)

  3. Thanks, Stephen, nice job. I agree with Evan: you have a nice-lookin’ site.

    I’m anonymous because I don’t want work and blawging to intersect just yet, and I’m very new to each, so please cut me a little slack.

    I’ll post more on anonymity (and when it’s defensible in a blawg) at some point. Also, my famed-far-and-wide-and-still-not-done-yet Scalia MegaPost will surely be a significant blawg review. If I would only finish it.

  4. A New Blawgcast

    It’s called Patent Pod, described as “Case law summaries, and audio files presenting the court opinions, from Arizona patent lawyer Andrew Lahser.” Link from Blawg…

  5. Thanks for mentioning my blawg in the weekly edition of Blawg Review. I posted a followup mention on my Health Care Blog Law here:

    I too like the graphics and concept for your blawg. This past week I noticed a number of blog posts discussing the need to remember the target audience of your blog when you are designing. I can hear lawyers saying now — a website called Patent Barista with graphics concept of coffee and condiments. Puh! Our law firm shouldn’t have a website like that — it’s unprofessional. Although your blog might not appeal to lawyers — I’m sure your target clientele, inventors, appreciate the creativty. I’ve added you to my blog roll and look forward to reading more from you in the future.

  6. lanoue on his own

    Thanks to the translations of Prof.