Leon, 3L

Just got finished reading a case for patents that has me ready to re-trace the footsteps I put on my ceiling when the Chicago-based referees stole game 4 of the first round of the playoffs from the Celtics on Sunday.* In other words, it made me rather unhappy (to put it mildly). The case, for those playing at home is Microsoft v. AT&T, and it's a Supreme Court case from 2007.

The facts are pretty straight-forward: AT&T holds a patent for a system of recording human speech. Both sides concede that Microsoft's Windows operating system, when installed on a computer, infringes on this patent. There is thus no argument about "domestic" infringement. The question the court attempts to answer is whether a provision of US patent law (which prohibits exporting "components" that, when assembled outside the US, infringe on a US patent) applies to the copies of Windows that Microsoft sends abroad -- to be installed on computers sold outside the US.

The majority holds that because Microsoft sends a "master copy" of the software overseas, and because computer manufacturers first make CD-ROM copies of the "master copy" of the software before installing the software on the computers, that all the components of the infringing device (the resulting computer with Windows on it) are made abroad, with none of them being supplied from the US. The court explains that software in the abstract (unfixed on any medium such as a CD-ROM) is not a component, but is more like a blueprint for a building. Thus, the relevant software, in the court's eyes is the copy made abroad, and not the original sent from the US.

The court couldn't be more wrong. By attempting to find a physical-world analogy for software, the court not only misinterprets how software works, it misapplies the existing law.

For starters, software should not be treated like a physical object. The court is correct in that the copying step (performed abroad) removes the US-supplied medium (the master copy) from being a component in the final product. However, it was not the medium (the physical disk that the software was sent on) that was to become a part of the final product -- it was the software itself. A byte-by-byte copy of the disk does not create a new work (thought it does create a new physical copy of the work). It merely re-fixes the US-developed software in yet another medium. The software, designed, written and tested in the US is not altered in any way by this process. The software that left the US ends up on the infringing computer -- the medium has changed (twice), but the software has not.

Second, the blueprint analogy is just dead-wrong. SCOTUS likens abstract (unfixed) software to ideas which lack a physical embodiment. However, software is an IMPLEMENTATION of ideas. The software requirements (or specification) can be seen as a blueprint -- they tell the developer what the software should accomplish. However, two developers looking at the same set of requirements can come up with two different pieces of software that accomplish what is required. The resulting code is an implementation of those developers' ideas, fixed in whatever medium is appropriate. Thus, completed software is more like a building than a blueprint. While on the blueprint/building analogy: imagine a modular home being delivered by truck to its location -- one would be hard pressed to make an argument that the home is not a physical embodiment because it is not affixed to a plot of land.

The court really seems stuck on this idea that in order to become part of a device the software has to be delivered on some sort of medium. However, the whole point of software is to be delivered and installed. The means of delivery should not be relevant in this analysis -- for there will be some means of delivery. This, coincidentally, is where the court misapplies the law. As pointed out by the dissent, the statute forbids exporting components that have "no suitable non-infringing uses." There is no possible use of Microsoft's Windows that would not infringe the AT&T patent! It can never be installed on any computer without infringing, and thus it cannot be "used" in a non-infringing way.

And now on to tax law (a much less controversial topic).

* I apologize for the total lack of sports-related blog postings, but you have to see it from my point of view: the Bruins do not exist in my world until Jeremy Jacobs sells the team (unlikely to happen), the Celtics are without KG and "the other" Leon (Powe) and are struggling against the Bulls (a team I despise almost as much as the Lakers, but not in that "wow, I respect them, but I hate them" way; no I hate them in a "I really can't stand these guys -- especially Joakim Noah -- and want them all to be trapped for days in an elevator with a large man who just ate a lot of beans, raw eggs and bad tomatoes" way). And I maintain that April is too early for baseball unless you happen to have tickets to the games (which I haven't had the opportunity to get this year).

Posted by Leon at 12:16 AM | Permalink | Comments (0)

Choosing a law school is something that should be taken very seriously. After all, it does determine one's future in the legal profession (assuming, arguendo, that Dr. Emmett Brown "Doc" in the Back to the Future trilogy was mistaken when he surmised that the reason why Marty McFly Jr. could be tried, convicted and sentenced within two hours of his arrest was because lawyers have been abolished in the future).

Some will tell you to simply go to the highest ranked school you get in to. Solid advice, but overly simplistic, if you ask me. Let's assume that the ranking of choice is the U.S. News and World Report ranking of law schools. Now, assuming that you are choosing between a top-ten school and a school outside that area, the advice above is likely to be dead-on. While I have known some folks who chose lower-ranked schools in that situation (due to scholarships offered, or the type of program at the school, or the professors, or students, or geography), without some sort of personalized extenuating circumstance, the general advice is to take the higher-ranked school..

However, the choice becomes much less clear when you are choosing between two schools that are ranked somewhere in the "top tier" of 100 schools, but outside the elusive top-ten (or even top-fourteen). The differentiation between schools ranked in that range can be so small as to make a decision based solely on the ranking seem rather arbitrary. Would it make sense to go to a school ranked #50 over one ranked #80 if the lower-ranked school was in the geographic location you wanted to practice after graduation and the higher-ranked one was not?

Some folks will instead tell you to visit every school and go to the one that "feels right." This is simply dangerous advice. A school might feel great, and might be a great place to spend the next three years of your life, but it might not prepare you for practice. It might limit your career options -- both geographically and in terms of the types of jobs available to you at graduation.

Some will argue that if you have an interest in a particular area of law you should seriously consider schools that are known to excel in that area, regardless of their rank. However, what happens when you get to school and realize your assumption was wrong? Instead of wanting to focus on environmental protection for the three-legged-swamp-rat-of-upper-Vermont you now are more interested in labor law? Worse yet -- what happens if you go through law school only to find out that there is no job market for protectors of the poor swamp-rat? If you specialize your education from the get-go, you leave yourself few options.

So, what will I tell you? That is a difficult question to answer. Perhaps it is easier to start with what I will not tell you. I will not tell you to come here. It's not that this is not a wonderful school -- in some ways it is. It's that the decision is a deeply personal one, and a one-size-fits all answer simply won't do. I chose this school because, given my options, I thought it would give me the best opportunity to get where I wanted to be when I graduated. Almost two years into this process, there have been highs and there have been lows, successes and failures, disappointments and pleasant surprises, but in the end -- I still think I made the right choice. Assuming, of course, that Doc was wrong about that whole abolishing of lawyers thing.

Good luck with your choices -- and if you have any questions you think I can answer -- feel free to drop me a line. If you don't want your comment published (just want a question answered), let me know, and it won't end up on this site.

Posted by Leon at 11:39 AM | Permalink | Comments (0)

I am convinced that most everything one needs to know to be successful in law school can be learned by watching Saturday morning cartoons. For example, have you noticed that when Wile E. Coyote runs off a cliff, he only starts to fall after he looks down? That's a valuable lesson: when running off a cliff... don't look down! Stated in a more law-school instructional fashion: concentrate on the task at hand, and not on what's going on around you.

This is especially true in quarters (semesters for all those of you not on the NUSL plan yet) where you have attempted to prove, once and for all, that a law students' math skills regress to the point of not being able to add single-digit numbers together. As some of you might recall, I signed up for five classes this term. What this necessarily means is that I will have a final on each day of our finals week. Now is perhaps a good time to recall that NUSL doesn't have a "reading week" before finals (except during your first year). Classes end on a Friday, exams start on a Monday. To think that during my first year, I actually opined that the reading week was a touch long. Ahh, how foolish we are when we are young...

So, with finals in three short weeks, I am spending "marathon weekend" cooped up indoors trying to get a feel for corporate tax law that is at least somewhat rooted in the Internal Revenue Code rather than my feelings of how taxes should be handled. A small part of the weekend was also dedicated to supporting the economy, however. I suppose that's something I should explain from the beginning.

As some of you remember, I was supposed to be spending the summer toiling for a large law firm, as a "summer associate." I say supposed to, because a few weeks ago the firm informed us that due to the continuing downward spiral of the economy they were forced to eliminate the entire summer program (there was no meaningful work to give "the summers" and there was no chance of the firm needing us full-time when we graduated). Having never before been "fired" before even having a chance to start a job, I admit the news made me take the proverbial look down at my feet only to see that I had indeed managed to fall off a cliff. As anyone who has seen those aforementioned cartoons would know, rapid descent into the canyon below follows shortly on the heels of such realizations. Except poor Wile never did have a proper support structure...

With an abbreviated timeframe for a job search, there was precious little time to waste. I had planned to work for either a smaller intellectual property firm or an in-house counsel next winter (to see how I liked those types of employment compared to a large firm). It became very clear that my best chance at a job this summer that would allow me to do the type of law I want to do was with one of those types of employers. With an immense amount of help from sources both within and outside NUSL, I was able to round up some potential employers very quickly. In less than two weeks, I had gone on a number of interviews, and had a choice to make among a number of excellent opportunities. In the end, I chose to work for an in-house counsel at a software company, and am very excited about the mix of intellectual property and corporate law matters that await me this summer. The only downside is that any hope you, my faithful reader, may have had for a play-by-play like account of a summer program at a large law firm have been eviscerated.

Just as my job search was coming to an end (and as my wife was taking a much-deserved mini ski-vacation with her family) my trusty refrigerator decided to have a crisis of confidence. Perhaps it was more of an identity crisis, but the end result was that it absolutely refused to keep food cold. For those of you who happen to be engineers, it will not surprise you that my first reaction was to take everything out of the freezer, and then "monkey with it" in an attempt to figure out what was wrong. Long story short -- after multiple attempts at resuscitation, aided by a volt meter, a pair of pliers, a hair dryer and a toothpick, the no-longer-frigidaire was declared dead shortly after noon on Tuesday, April 7th. Turns out I can't fix a broken compressor. I don't know how many of you have had a chance to shop for refrigerators recently, but for those who haven't -- you aren't missing much.

For starters, stainless steel has swept the nation and no one stocks "plain old white" appliances anymore. Now, I worked in an ice cream store for three years while in high school. Part of my daily duties was to polish the stainless appliances to remove fingerprints. I will never own a stainless steel appliance as long as I get a vote, and as long as my wife is skiing while I am talking a refrigerator through a mid-life crisis, I get a vote! I also learned that the part that fails most often on new refrigerators is... the motherboard. Yup, that's right, the computer inside my new refrigerator is likely to fail before anything else does. Fantastic! Can someone please explain to me why a fridge needs a computer inside? Unless it's planning to scan its contents and automatically order whatever I happen to be running low on, I am not interested.

At long last, the fridge was delivered this past Friday -- a feat of both great engineering and incredible brute strength. Imagine a 32x36x96 box that weighs 360lbs walking up the stairs to my second-floor apartment and through a 31-inch doorway (that is not a typo, the doorway was narrower than the fridge until its doors were taken off) without getting a scratch on it and you understand why I always tip the delivery guys. It was hooked up and producing ample ice, water and, most importantly, cold air in short order.

So, there you have it. A long weekend in law school -- spent preparing tax law outlines and installing a refrigerator. Now, if only I can remember not to look down...

Posted by Leon at 11:37 AM | Permalink | Comments (0)