Legal Pad

Satellite Patent Office Still in Valley's Future

[Amy Miller]

Patents lawyers in Silicon Valley may get their wish: The region is still in the running for a satellite U.S. Patent and Trademark Office, Director David Kappos told patent lawyers Monday at a Stanford Law School symposium on how the America Invents Act is affecting the USPTO.

The satellite office questions was among the first asked of Kappos. “That didn’t take long,” he said.

A satellite office is being set up in Detroit this summer to help deal with a backlog in patent applications. But the patent office would like to open two more locations over the next three years, and Silicon Valley is an obvious contender, Kappos said. There's a lot of patent work in the Valley, it's home to several universities, and there’s plenty of public transportation. The biggest drawback, Kappos said, is Silicon Valley’s high cost of living. But Kappos didn’t dash anyone’s hopes.

“Look for an announcement this summer,” he said.

 

How Do You Say "Deja Vu" in Hawaiian?

[Scott Graham]

The United States was still emerging from several recessionary-plagued years when the U.S. Court of Appeals for the Ninth Circuit scheduled its annual conference in Maui at an estimated cost of over $500,000. The confab drew a lot of negative press coverage, and Sen. Charles Grassley proposed limiting judicial conferences to $100,000 a year.

That was 1995. Fast forward 18 years and the same drama is playing out this week, as Grassley and Sen. Jeff Sessions have called out the Ninth Circuit, saying this year's conference “reads more like a vacation than a business trip to discuss the means of improving the administration of justice.”

Not much seems different about this year's extravaganza from 1994's. The 1994 version had free time built in for golf and snorkeling; this year, Grassley and Sessions are complaining that a golf tournament and surfing lessons are on the agenda. (The conference also will feature meaty seminars on topics like mobile computing and sentencing policy. Supreme Court Justices Anthony Kennedy and Samuel Alito are expected to attend.) Back then the court asserted that it didn't cost any more to send federal judges and staff from all over the west to Hawaii than it would to, say, San Diego or Portland. In a prepared statement today, the court made the same non-smell-test-passing claim.

One difference, though: This is the second time in two years the Ninth Circuit has located its conference in the Aloha state, a departure from recent practice.

After the congressional fallout from the 1995 conference, the court kept the conference in the continental 48 for the next seven years, convening in Portland, Santa Barbara, Monterey, Sun Valley, Bozeman and San Diego the following years. Hawaii came back into play in 2003, then again in 2007, 2010 and now 2012.

Maybe Grassley is secretly working with Ninth Circuit Judges Milan Smith and Diarmuid O'Scannlain to drum some tourist business back up for Portland.

 

 

Heart Attack Humor Doesn't Go Over Well With Judges

[Scott Graham]

A little humor can go a long way toward defusing tense situations in oral argument, with one important caveat: when it comes from the bench only. Attempts by counsel to loosen up the proceedings often fall flat, or worse, especially when they come at the judges' expense.

That sounded like the case during Monday's arguments before the Ninth Circuit U.S. Court of Appeals in Verdugo v. Target Corp., 10-57008. The issue was whether the big retailer could be sued by the family of a woman who suffered a fatal heart attack in a store, on the theory that Target should have had a defibrillator available to resuscitate her.

The court sounded like it was leaning toward certifying the question to the California Supreme Court, but Ryan Craig of Mission Viejo's Trachtman & Trachtman was making a hard-charging push to end the case now. "I believe the California Supreme Court has already given this court a definitive answer in the case law," Craig said.

"Well, of course it hasn't," Judge Marsha Berzon told him. "Those cases are about something completely else."

"I don't agree, your honor," Craig said.

"I don't respectfully agree," Judge Harry Pregerson corrected him.

Googacle Jury Almost Has a Verdict!

[Ginny LaRoe]

The verdict is almost in.

By Friday afternoon, the jury deliberating in Oracle's v. Google had reached unanimous decisions on all but one question in the potentially billion dollar copyright phase of the smartphone suit.

With that news, it appeared the court was ready to hear what the jury had found.

The verdict form was filled out, and everyone was in their places. But U.S. District Judge William Alsup sent everyone home for the weekend without accepting the partial verdict.

"The main thing is you have told me there is hope for reaching a verdict on all of the questions," Alsup told the 12-member panel after consulting with counsel at sidebar. "We should take advantage of that hope and spend one more day deliberating. So what I'm going to ask you to do is exactly that."

So, the jury went home. And the lawyers went back to work without knowing exactly where they stand.

There are signs, however, that the jury has sided with Oracle on the main infringement question. But that's hardly game over. Google can still prevail if the jury finds that employing Oracle's Java technology in its Android mobile operating system was "fair use." Notes from the jury indicate they are struggling over aspects of the "fair use" defense.

After a short discussion with counsel on their briefing schedule on pending motions, Alsup released everyone: "OK, I'll let you all go home and speculate."

The same jury will hear the upcoming patent phase and a damages phase, if any liability is found. In addition to damages, Oracle wants an injunction that would halt Google from using the accused Java elements in its product.

The jury will be back Monday at 8 a.m.

 

 

Third Day of Deliberations in Googacle Brings Big 'What If' Note from Jury

[Ginny LaRoe]

The jury deliberating the copyright claims in Oracle v. Google has handed up its most tantalizing note yet.

"What happens if we can't reach a unanimous decision and people are not budging?" one juror wanted to know Thursday after the third full day of deliberations.

A deadlocked jury would be bad news for Oracle, which still has a patent phase to try to this same 12-member panel. The damages phase, if infringement is found, also would be tried to the same jury.

The proposition of a hung jury seemed to catch Oracle lead counsel Michael Jacobs off guard.

"Your honor has vastly more experience in this situation than we do," Jacobs, of Morrison & Foerster, said when U.S. District Judge William Alsup asked both sides to weigh in. He suggested an Allen Charge, also known as a dynamite charge, where the court urges jurors to press on, might be necessary.

Google lead counsel Robert Van Nest of Keker & Van Nest told Alsup he should merely point them to a jury instruction explaining that the decision must be unanimous in this case.

Alsup didn't take the note as a declaration that the jury is deadlocked. "This is not the foreperson writing it. It doesn't say they are deadlocked. It says, 'what happens if'?'"

The idea of a hung jury prompted Alsup to work through what would happen if indeed they couldn't render a verdict on one or more of the four multi-part questions. The judge suggested the court should accept any partial verdict and then proceed with the same jury to the patent phase of the smartphone technology suit. The jury might even be able to resolve some of the copyright questions later, after hearing evidence in the next phases.

"I wouldn't see anything wrong with that," Alsup said.

Van Nest said that would raise Seventh Amendment issues. "Come on," Alsup said.

Both sides reserved further arguments until they had time to research the issue.

Just before jurors were to go home for the day, Alsup brought them into the courtroom and gave them a pep talk.

He used the d-word. "If you were to tell me that you were deadlocked, there are admonitions I could give to you that I would talk to the lawyers about first."

He told them they were dealing with hundreds of exhibits and many witnesses, and that it wasn't unusual for people to disagree. "This is not as simple as who ran a red light," he said.

He sent them home to "get a good night's rest," and said they should start fresh in the morning.

After they left the room, Alsup told counsel: "I guess no one will have a three-day weekend." Alsup had issued an order the day before notifying counsel that jurors could take Friday off, putting off the patent phase until Monday, if they rendered a verdict Thursday.

The note on what happens if they can't reach a unanimous decision was the eighth question from the jury. They had sent in other notes asking about Google's "fair use" defense, among other things. That led to some speculation that perhaps they had answered in Oracle's favor on an infringement question if they were struggling with affirmative defenses.

Deliberations resume at 8 a.m. The jury has indicated it would stop work at 1 p.m. Friday.

 

Googacle Jury Could Get Three-Day Weekend if They Act Now

[Ginny LaRoe]

CORRECTED at 11:53 a.m. Thursday: Due to an editing error, this item originally said jurors were told they'd get Friday off if they decide Thursday. In fact, and as the judge made clear in court Thursday, the order was for the attorneys' eyes only -- the jurors don't know of the "incentive."

The jury in Oracle v. Google could get a bonus if they reach a verdict Thursday: a day off.

U.S. District Judge William Alsup issued an order late Wednesday saying that if jurors reach a decision in the copyright phase by the end of Thursday, they can stay home Friday. The second phase -- dealing with patent infringement claims -- would begin Monday morning.

It looks like his honor had a change of heart after telling lawyers on Tuesday they should get ready to move forward with the several-week patent phase of trial as soon as the jury handed up its verdict.

Thursday would mark the third day of deliberations (not counting the few minutes they had Monday). Jurors left at 4 p.m. Wednesday after sending in a couple of notes, including one asking for a DVD player so they could view video evidence. (Presumably, the videos are favorable to Google: Oracle CEO Larry Ellison telling people at a conference that Google's use of Oracle's Java technology in the Android mobile operating system was flattering and a video of Sun employees doing some sort of nifty trick with Android and Java technology at a conference.)

A day off for the jury certainly doesn't mean a break for counsel or the court. There are plenty of legal questions the court needs to deal with, and those could be heard. Alsup asked for counsel to notify him if taking Friday off would create major problems for witnesses.

 

In Alsup's Court, the Lawyers Never Rest -- And Neither Does Anyone Else

[Ginny LaRoe]

When the jury in Oracle v. Google delivers its verdict on the first phase of the trial, there won't be much time for anyone to recharge their batteries.

U.S. District Judge William Alsup on Tuesday told the trial teams to gear up for the patent infringement phase of the case, which could take several weeks, since the jury could come back any time with its findings on copyright infringement. "So, get ready," Alsup told the teams, who had gathered to deal with a couple of questions from the jury.

Robert Van Nest, Google's lead attorney, said he'd like the jurors to have a break after rendering a copyright verdict. Certainly a reasonable idea considering they sat attentively through 10 days of evidence, a day of closing arguments and are now in deliberations.

Alsup said if the jury reaches a verdict close to the end of the day, everyone can go home until the next morning. But if the verdict comes in in the morning hours, it'll be time to roll.

While trials are always an endurance test, having one in Alsup's San Francisco court is especially grueling. He starts court at 7:30 a.m., Monday through Friday, and the lawyers are often before him until around 2 p.m., with no lunch break.

And there's no making it to happy hour just because he dismisses early: In this case, the lawyers have been filing motions well into the wee hours.

Alsup himself is in chambers every day before 5:30 a.m., filing orders and prepping for the day. It's not as if he's oblivious to the pressures the teams are under -- he was a trial lawyer at Morrison & Foerster before taking the bench.

"Getting plenty of sleep?" he asked counsel -- to laughter -- at 7:28 a.m. one day early on in the smartphone technology battle.

"As long as I stay on New York time," responded Michael Jacobs, the MoFo partner leading up Oracle's case. (His co-lead counsel, David Boies, who lives in New York, presumably has the advantage of already being set to East Coast time, but he's been spotted yawning in the hallways on Alsup's short breaks.) "I know trial is brute work," Alsup said. "I don't think the press understands how hard it is to try a case if you're the lawyer. You probably get about three hours of sleep a night, maybe not even that much. So I may not seem like it, but as an old trial lawyer myself, I'm sympathetic."

The jury comes back Wednesday at 8 a.m. for more deliberations. Trial is expected to last another six weeks or so.

 

House Group Softening (Slightly) on En Banc Review for DOMA

[Scott Graham]

The congressional group that's defending the Defense of Marriage Act before the U.S. Court of Appeals for the Ninth Circuit is softening -- just a little -- its opposition to the idea of proceeding directly to en banc review.

In a filing Friday, the Bipartisan Legal Advisory Group reiterated that it believes a three-judge panel is capable of deciding Golinski v. Office of Personnel Management. But the mostly Republican group of House representatives suggested that direct en banc review of the challenge to DOMA might save the parties time and money.

“It is in all parties’ interest that the Supreme Court resolve this issue sooner, rather than later,”  Bancroft partner Paul Bartomolucci wrote for BLAG. “Thus, if en banc review will eventually occur, it should occur now.”

In Golinski, a Ninth Circuit staff attorney who legally married her wife in 2008 is challenging the federal government's refusal to extend health insurance benefits to same-sex spouses. U.S. District Judge Jeffrey White of San Francisco in February ruled that DOMA violates Karen Golinski's equal protection rights.

The Department of Justice, which originally defended DOMA in the litigation, is now attacking it on appeal, and has asked the Ninth Circuit to start with an 11-judge en banc panel. DOJ is arguing that the Ninth Circuit should abandon one of its precedents for deciding discrimination claims of gays and lesbians, and an en banc panel would be more free to do so.

BLAG has said from the beginning that what it wants is certainty as to which court will be presiding, so it can brief the case accordingly. "The House wants to ensure that the taxpayer dollars not be expended needlessly in this litigation,” Bartomolucci wrote. “If the court were to grant the Petition after the House had substantially completed a panel brief, taxpayer dollars would be wasted because the House then would have to shift gears and prepare a substantially different brief.”

While joining DOJ’s request for expeditious review, Bartomolucci asked that his group get 30 days to file an opening brief once the court resolves the en banc issue. If granted that could force a slight delay in oral arguments, which the court has tentatively fast-tracked for September.

Werdegar Puts Little Stock in Concurring Opinion

[Scott Graham]

Some of the best language for workers in last week's wage-and-hour decision Brinker Restaurant v. Superior Court [pdf] came in a separate concurrence that Justice Kathryn Mickle Werdegar wrote to her own unanimous opinion.

Werdegar affirmed that representative testimony, surveys and statistical analysis remain available as tools for courts to determine "aggregate liability" in wage-and-hour cases.

Some plaintiff attorneys speculated that Werdegar was merely offering guidance to trial courts on behalf of the entire Supreme Court. But if that's the case, why did only Justice Goodwin Liu sign her concurrence?

We may have received a clue from the Supreme Court today. In the criminal case People v. Hernandez [pdf], the court ruled that a trial judge did not err by forbidding a defense lawyer from sharing a witness' declaration with his client. U.S. Supreme Court Justices Thurgood Marshall and William Brennan once frowned on the practice, but they did so in a concurring opinion, in a case called Geders.

"It is perhaps significant that the majority opinion [in Geders] did not embrace the expansive view of the concurring justices," the California Supreme Court observed today in Hernandez, rejecting Marshall's and Brennan's view.

And the author of Hernandez? Justice Kathryn Mickle Werdegar.

 

Coming to Alsup's Court? Leave Cough, Heavy Hands at Home

[Ginny LaRoe]

Lawyers and observers packing the courtroom for the Oracle v. Google showdown are getting a tour of of U.S. District Judge William Alsup's tight ship. 

The morning started with a Google lawyer trying to keep some sensitive Google financial information private when CEO Larry Page testifies.

"Oh, come on," Alsup grumbled. "This is a public trial."

"Your honor."

"Denied."

"Your honor, it's ..."

"Denied."

And pity the lawyer with a tickle in his throat. During voir dire, someone at the Google table started coughing."Who is hacking and coughing?" Alsup demanded.

He offered a lozenge, which Robert Van Nest, big-shot litigator at Keker & Van Nest, picked up and handed to someone at his table.

Alsup was back on message Tuesday. "I have a strong view," that when a lawyer is speaking, they have the "absolute right for full attention" without "hacking or coughing or paper shuffling."

"I don't even like it when people get up and back and forth out that door," he said, prompting one observer to slip out before things got underway.

Later, Alsup stopped proceedings because someone was typing too loudly. Alsup assured Van Nest it wasn't his people, but the press. (Alsup, like other judges have done in recent years, is allowing reporters to use laptops and other devices during the trial).

He warned the throng furiously typing up notes, blog items and Tweets to take a gentle hand to their keyboards.

After that, court security made at least three reporters shut down their machines. And one lawyer in the audience was told to stop clicking his pen.

While lawyers like to say Alsup is a judge who "lets you try your case," he also lets you hear his thougthts about it. At one point, he asked Morrison & Foerster's Michael Jacobs, who represents Oracle, about the order of his witnesses.

"You're going to start out a trial with a video deposition?" Alsup said, with evident disapproval. 

But Alsup actually thinks highly of Jacobs, Van Nest and their teams. "In some ways," he told jurors on opening day, "you're lucky to see a trial where the lawyering is at the level that it is."