LAWYERSCHILE EL MUNDO INTERNACIONAL DEL ABOGADO

Rodrigo González Fernández y un grupo de egresados de la Facultad de Derecho de la Universidad la Republica en Chile ha decidido poner al alcance de todo el mundo de la profesion legal importantes materias en Ingles para ir practicando el trabajo en materia de Tratados internacionales y que nuestra profesión estará en primera linea. Invitamos a todos a opinar, debatir, participar activamente.Es el primer blog legal en inglés de latinoamerica.

Thursday, March 12, 2009

Defenses Flop, but at Least They Were Creative

Defenses Flop, but at Least They Were Creative

One has to hand it to Antonio Cruzado Jr. -- or at least to his lawyer -- for being creative in his defense. Sure, he sped off in the car he'd just stolen with one Christopher Adams clinging to the door, holding on for dear life. But it wasn't his fault that Adams jumped on the car and tried to stop him from stealing it. After all, Adams jumped on of his own free will. Why should Cruzado be found guilty of assault and battery?

Come to think of it, why should he even be convicted for robbery? The law defines robbery as larceny from a person by force and violence. When Cruzado jumped in and snatched the Honda Civic from a Cambridge, Mass., gas station, no one noticed until after he started to drive away. Yes, Adams and the car's owner chased after him. Yes, he sped off with Adams clinging to the car after trying to open the door. But at the moment he actually started the car and drove off, no force or violence were involved.

The arguments are so clever they almost make sense. But the Massachusetts Appeals Court didn't buy any of it. In a decision issued this week, Commonwealth v. Cruzado, it upheld Cruzado's convictions of unarmed robbery and assault and battery by means of a dangerous weapon -- the dangerous weapon being the Honda Civic. On the assault and battery charge, Cruzado argued to the Appeals Court that there was no battery "because it was Adams who brought himself into contact with the Honda." The court saw it otherwise, concluding that a jury could have found that he intended to use both the car and his hands in a dangerous manner.

While driving he intentionally accelerated the Honda as Adams was holding onto it, drove the Honda through a red light, swerved in traffic, and traveled several blocks at a speed of thirty to forty miles per hour. At the same time, the defendant used his hands to attempt to dislodge Adams from the Honda.

As for the robbery charge, Cruzado contended that he did not use force in taking the Civic, since no one was looking. But the court said that the victims' pursuit and the defendant's attempt to escape provided the requisite force.

Here, a rational jury could have found that the Honda was taken from Adams's person as the robbery was not complete when the defendant was still fleeing the scene while being pursued by Adams. The defendant accelerated the car and pushed at Adams's hands to attempt to remove the car from Adams's grasp and to complete the theft.

And so Cruzado earns points for creativity but flops in his effort to stay out of jail. That was especially bad news for this particular defendant. As a habitual criminal, he was given a sentence of life in prison.

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Posted by Robert J. Ambrogi on March 11,

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Lawyer Loses Bid to Get Patent on Marketing

Lawyer Loses Bid to Get Patent on Marketing

California lawyer Scott C. Harris hoped to get the patent on marketing. But his hopes were dashed this week when the Federal Circuit Court of Appeals issued a ruling that a marketing business is not the sort of subject matter eligible for a patent.

Harris is familiar to patent lawyers as the one-time Fish & Richardson partner and occasional inventor whose former firm forced him out after he sold some of his patents to a holding company that then used them to sue Google, which is a Fish client. That holding company is represented by the firm Niro, Scavone, Haller & Niro, which turned around and added Fish as a defendant. Fish then countersued Harris and Harris countersued Fish. As all of this was being followed by the anonymous Patent Troll Tracker, his identity was unmasked and he got caught up in his own set of legal entanglements. Confusing, yes, but Joe Mullin makes sense of it all at The Prior Art.

Meanwhile, Harris -- as one of three plaintiffs and also as their attorney -- brought this appeal from a decision of the Board of Patent Appeals denying his claims to get a patent on a method and "paradigm" of marketing. He described the paradigm claim this way:

A marketing company that markets software from a plurality of different independent and autonomous software companies, and carries out and pays for operations associated with marketing of software for all of said different independent and autonomous software companies, in return for a contingent share of a total income stream from marketing of the software from all of said software companies, while allowing all of said software companies to retain their autonomy.

Sounds like a marketing company, right? That is what the Court of Appeals thought. It said the case fell squarely under its en banc decision last year, In re Bilski, in which it limited business-method patents to processes that meet its "machine-or-transformation" test. In other words, the process must either be tied to a particular machine or apparatus or transform a particular article into a different state or thing. "A marketing force is not a machine or apparatus," the court explained.

Harris argued that a marketing company is "analogous to a machine" in that a company "is a physical thing." The Federal Circuit did not see it that way. Citing Harris' own statement during oral argument that "you cannot touch the company," the court reasoned, "Applicants do no more than provide an abstract idea -- a business model for an intangible marketing company."

At his blog Patently-O, Dennis Crouch says the Federal Circuit got it right.

Under Bilski, this case is open and shut. The claim is not even arguably tied to a machine. ... On the second Bilski prong, the claim does not require transformation of any article into a different state or thing. The only transformation is that of legal rights and organizational relationships that were explicitly excluded in the Bilski decision.

As for Harris, he tells The Recorder that he may appeal to the Supreme Court. "The way the patent office and the Federal Circuit is acting lately is that they're really trying to restrict the scope of patents," he said, "and this is just one more in a series."

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Posted by Robert J. Ambrogi on March 11, 2009

Federal Judge Chastens Harvard Law Prof

Federal Judge Chastens Harvard Law Prof

Legal advocacy and legal education may not always be the best of bedfellows, it turns out. A Harvard law professor's efforts to combine the two while defending a file-sharing case earned him an admonishment this week from a federal judge in Boston and a warning that his educational pursuits may be undermining his client's case.

Ironically, the judge who chastened the professor helped bring him into the case in the first place. U.S. District Judge Nancy Gertner, concerned about the imbalance between big record companies and pro se defendants, pointed lawyerless defendant Joel Tenenbaum to Charles Nesson, a professor at Harvard Law School and a founder of Harvard's Berkman Center for Internet & Society. Nesson took up his defense and also saw in the case a broader educational opportunity. One of his first moves was to seek an order allowing a motion hearing to be webcast -- an order granted but later put on hold.

What got Nesson in trouble this week was his attempt to compel the deposition of Matthew Oppenheim, a lawyer who helps the RIAA coordinate its file-sharing cases but who is not involved in the Tenenbaum case. Not only did Nesson want to depose Oppenheim, but he also wanted to do it in front of an audience in a Harvard law school classroom and make a recording of it.

A clearly impatient Judge Gertner this week denied Nesson's motion to compel and served him notice that the case was not a classroom exercise. First, she said, Nesson failed to comply with the requirements of the federal rules for issuing a deposition subpoena. Second, she said, because he had not made the initial disclosures required by the federal rules, he was barred from initiating any discovery, including depositions.

Apart from failing those technical requirements, she continued, Nesson had shown continuing difficulty complying with the requirement of the rules that the parties meet and confer in good faith about discovery matters. "Nothing entitles the Defendant to engraft his own conditions on the Federal Rules of Civil Procedure or the Local Rules of this Court, or to dispense with them where they fail to suit his counsel's teaching style," she said in no uncertain terms. And then she issued a warning:

While the Court understands that counsel for the Defendant is a law professor, and that he believes this case serves an important educational function, counsel must also understand that he represents a client in this litigation -- a client whose case may well be undermined by the filing of frivolous motions and the failure to comply with the Rules. Submission of a plainly flawed motion cannot be justified as a clinical exercise. The Court will not hesitate to impose appropriate sanctions, including potentially substantial costs, should the Defendant waste either the Plaintiffs' time and money or scarce judicial resources by filing frivolous motions in the future.

It was, as the professor foresaw, an educational opportunity. It was not, however, the lesson he anticipated.

[Hat tip to Recording Industry vs. The People.]

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Posted by Robert J. Ambrogi on March 11, 2009