LawyerScientist

Crimes, Inventors, Biotechnology, and Patents

Welcome to the Lawyer-Scientist Blog.  This blog, though eclectic, has an underlying theme.  The Blogger is Interested in the Topics! 

As a trained genome scientist I spent over 20 years in biomedical research at some of the top medical schools in North America.  I was involved in several start-up Biotech companies and am licensed to practice law in NC as well as before the US Patent and Trademark Office.

To fulfill the "thrill" of being a "courthouse lawyer,"  I practice criminal defense and have had clients charged with everything from larceny to carrying a concealed weapon. 

I hope to bring to this blog a little bit of everything just mentioned!  Enjoy.

Brought to you by AJC Legal Services.

How to show you understand Biotech Patent Law at a Cocktail Party

There is a LOT of information circulating in th print and electronic media about the "Myriad" case and the effect of the "Prometheus" case.  Here is what you need to know.  Myraid received patents for diagnostic tests for Breast Cancer.  By looking at the DNA of a patient, a prediction can be made as to the risk of breast and/or ovarian cancer.

Prometheus is a case which was just settled which used measurements of metabolites in computing drug dosage.

Here is where they connect.  You cannot patent a "Law of Nature."  Even though Isaac Newton "discovered" gravity, he could not patent it - it was a law of nature.  The US Supreme Court said, in Prometheus, that the metabolites were a law of nature and disallowed the patent. They also asked that the Myriad Case be re-evaluated in the Federal Court (Myriad had already Won!) in light of Prometheus.  This is a very un-sublte of way of saying that the Federal Courts show look as to whether the DNA dignostics for breast/ovarian cancer are Laws of Nature, and invalidate the patent.

Is this discussion complete - No.  But's its enought to get your noticed at a cocktail party!

LawyerScientist is Back

Due to some pressing issues, I haven't been blogging.  This will be changing shortly along with the release of a new version of my website AJCLEGAL.COM in late February.

Five Tips to Patenting Your Invention.

With today's economy, many inventors are moving forward with patenting their inventions. Despite the number of "Patent it Yourself" books, applying for a Patent can be a difficult and expensive process. Before you think about patenting, look at these 5 tips.

1. Why do want to patent your idea?

A patent give the inventor a "right to exclude" others from infringing on his/her ownership rights. Thus, a patent is worth as much as you feel you can spend protecting it. While a patent may discourage others from possible infringement, it still will be up to you to effectively protect your rights, and this could mean a lawsuit.

2. Is it novel and did you invent it?

You cannot receive a patent on an invention which is not new. You must be able to show that your invention was not invented or used by others.

3. Is it obvious?

Prosecuting a patent (having the USPTO issue one) involves not only proving that the invention is novel; but that it is not obvious. As an example, if a patent is held for a step ladder with 5 rungs, you won't be able to get a patent on a step ladder with 6 rungs (even if that was never mentioned in the original patent). Obviousness can also be used by combining two or more inventions. For example: Patent 1 is for a type of key used for computer input; Patent 2 is the use of that key in a computer notebook keyboard; it would be obvious to use that key in a desktop keyboard given the existing patents. Thus, that invention would be deemed obvious.

4. Is it patentable subject matter?

In order for an invention be patentable it must meet the requirements of being an invention which the USPTO deems legally patentable. For example, you can patent a lightbulb - but you can't patent the speed of light. You can patent a tea kettle - but you can't patent the boiling point of water. The most common patents are for "things" or for "manufacturing processes." There are other areas, which may fit your invention and you might want to check more in-depth with the USPTO web-site.

5. Have you already disclosed the invention?

Once you have "disclosed" your invention you have ONE year in which to file a patent, or your rights are relinquished. Determining whether you have disclosed your invention can be tricky. For example, if you try to sell your invention in the U.S., a disclosure was made. If you give a talk to a company, without restriction, a disclosure was made. But, if you give a talk to 500 people and it is done with the knowledge that the information is to be kept confidential, then NO disclosure was made. When in doubt, don't disclose.

Additional Resources

U.S. Patent and Trademark Office (www.uspto.gov) 



Note: No attorney-client privilege is created by reading this document. The document is for general knowledge and may not apply to your situation. There is no warranty (express of implied) for the information presented here. Patenting is a very specialized process and you are encouraged to speak with a professional skilled in this area.

 

$50,000 Lesson in Contract Law

$50,000 Lesson in Contract Law

A. James Cuticchia, PhD, JD (Aug 19, 2011)

Much has been said about a hockey event which occurred on August 11, 2011.  However, it is not the game that was exceptional, rather a raffle.  The father of Nick and Nate Smith purchased three tickets for a raffle at a celebrity hockey game in Minnesota.  The father put each of their names on separate tickets.

Nick Smith was the lucky winner of the raffle, which gave him a chance to shoot a hockey puck through a 3 ½ inch hole to win a $50,000 cash prize.  Unfortunately, Nick had left the arena.   Before doing so, he told his brother Nate to take the shot for him if he won the raffle.  Nate did just that and against all odds, WON!

The controversy began when Pat Smith, the father of the boys, came forward and admitted it was not Nick who took the shot.  The question which is under consideration is whether the insurance company responsible for providing the prize should pay up.

While the actual terms and conditions of the raffle are yet to be made public, there is case law addressing, in part, this very problem.  In 1927 the Supreme Court of Wisconsin in the case of Matta v. Katsoulas (212 N.W. 261, Wis. 1927) held that a person handing her lottery ticket to another did not transfer the prize, but rather made that person a bailee (someone to hold for her behalf).  In that case Hilda Matta had to leave an event where each person received a raffle ticket, and asked Christ Katsoulas to take her ticket and let her know if she won the prize.  The ticket was drawn and the people in charge of the contest spelled out the name of the woman who won the prize, an automobile.  Mr. Katsoulas presented the ticket and was given a voucher to take to a garage and retrieve the automobile.  When Ms. Matta heard that her ticket was drawn, she demanded that Mr. Katsoulas surrender the automobile to her.  He did not.

The court held that a contract had been made between Matta and Katsoulas.  When Ms. Matta asked Mr. Katsoulas to take her ticket and tell her if she won and Mr. Katsoulas took the ticket a contract was made.  The court found that in this situation the law implied an agreement that Mr. Katsoulas would return to her the car if her ticket was chosen.

In this case, it could be argued that a contract was created between Nick and Nate Smith when Nick asked Nate to take the shot at the hockey game if his (Nick’s) name were drawn.  At its most simple foundation, Nate agreed to take the shot FOR Nick.  Thus, Nick might have a case against his brother to turn over the money to him!

One question to be addressed is whether Nate stepped into Nick’s shoes and performed the hockey shot for him.  If he did, then the $50,000 would be Nick’s under a theory that Nate was an agent for Nick.  If so, the next question is whether an agent for the person whose name is drawn in the raffle has the authority to act for that person.  This will come down to rules of the contest, which to date have not been made available. 

These rules would have to been in force at the time of the contest and available to contestants.  The sponsors cannot make up any rules retroactively. 

If it comes down to a court battle, it will likely be the rules which will govern this situation.  The court will likely hold that a contract was created when the $30 was given to the sponsor and each of the Smiths placed their names on the tickets.  But were the tickets transferable?

In cases where raffle tickets just have a number printed on them and are surrendered for the prize, it might be construed that in the absence of any rules laid out the contestants, that the ticket would be transferable – and it would be up to the transferor to make any agreements with the transferee regarding what would happen in the event that the ticket was chosen.

In this case, it was not a ticket number which was called; rather it was a specific name.  Much like in the above example, it will still come down to the rules of the contest.  Actually, it will ultimately be the Golden Rule which prevails.  The sponsor with the Gold must abide by its Rules.

PhD v. JD (Part 1)

This is the first essay discussing the differences which I found when earning my PhD in Genetics at the University of Georgia compared to my JD in the Evening Program at NCCU.

Let me start with the big picture.  Earning a PhD in the life sciences, where and when I did, was much like being sentenced to prison on an indeterminate sentence.  What I mean to say is that there is NO "finish" date going into the process; and a lot of variability will occur amongst the time it takes to finish.  As an example, I finished in a little over four years, but there were people in the program who had been in it for more than seven.   The difference had nothing to do with work ethic or scholarship - it had to do with the project.  Each person works with a mentor on his/her project.  When the mentor and your committee feel that you have completed enough work to merit the PhD, you move on.

Some schools have time limits, some do not.  During the time that I was working on my PhD, the words "free labor" (actually a more politically incorrect phrase was used amongst the graduate students) ran true.  At the University of Georgia in the genetics department students DID NOT PAY TUITION - we received a stipend. 

The stipend came from one of three sources.  The first is payment made directly from your mentor's grant.  The second is payment through a scholarly competition such as University Scholar or NIH Trainee.  The third was the "ole standby" - a teaching assistantship. 

With the excepition of being placed on a grant, each mentor had minimal involvement in the funding of the student.  The costs of the student boiled down to the cost of the experiments the student performed in the lab. 

Since there is no predicting the outcome of experimentation (that is why it is research), it can be a long and demoralizing process.  I have a colleague who earned his PhD in molecular biology at another school and it took him 9 years.  Some may say that taking that long is OK; psychians can take that long or longer to graduate.  However, the job market and compensation of the two groups are not similar.

So the take home message for this part:

    As a PhD Candidate, I had no idea when the education would be finished.

When Monkeys Attack Lawyers

In honor of the release of the 134th version of Planet of the Apes, I thought I might share my story of terror.  It happened many years ago when I was in Bali to give a speech.  My wife went with me and we stayed over a few days before I had to go to Melbourne on business.  While at Bali we hired a guide and car for a few days to take us sightseeing.  

He decided that we must go and see the "Holy Monkey Forest."  Sounds good to me! So we went; little did I know I was going to become a main character in my own version of "When Animals Attack."

First off, the Holy Monkey Forest is an amazing place.  There is an excellent story on  http://www.myseveralworlds.com/2007/01/17/holy-monkeys/ about the temple.

The monkeys in the temple are called Balinese macaques.  These are not the small and cute Capuchin monkeys you see in movies.  A Balinese macaques is like a 2 year old child; both in weight and in mischief.

While walking around the temple (there are well over 100 monkeys) I decided to lean up against a wall (not part of temple).  Being  6" 3', it wasn't a wise move.  It put my shoulders just about even with the wall.  Within seconds, the "attack" began.

Now you see pictures of mischievous Balinese macaques playing with people and jumping on and off them.  This monkey didn't get that memo.   He jumped and took a death grip on my neck, such that my neck had to support the monkey's weight.  I am not sure what scared me more, the thought of being strangled or the thought of ebola from the toes digging into my back.  (Yes, I know those monkeys don't carry ebola).

I must have looked like Homer Simpson in a struggle - fore dozens of guides and merchants decended upon me.  It probably took less than 30 seconds, but felt like hours, to get the monkey off my back.  I think they gave him peanuts or some fruit.  (Isn't that positive reinforcement?).

Needless to say there was a great deal of inspection to determine if any skin was broken (on me, the monkeys can take care of their own).  Luckily it was not.  Instead of thanking the merchants for their help the words that came out were,"No, I do not want a wooden turtle," or something similar.

We made it back to our car and terror was quickly become laughter.  I assumed my wife ran away to get help, maybe she just ran away!  So we asked the guide, "Were to next?"

He replied, "Temple of the Holy Snake!"

No.

Showing up for NC District Court

While there are some traffic offenses in NC which an attorney can represent the client without the client's appearance; more serious offenses require the defendent's presence.  One example is Driving With License Revoked.  This offense is a misdemeanor and you could be sentenced to jail - though that is unlikely.  However, not showing up for a court appearance is an excellent way to end up in jail!

You see, if the defendant is not present in these more serious cases, the lawyer is not able to ask for a continuation on his/her behalf.  (In some rare circumstances, e.g., the lawyer can show the defendant is in jail in another county - a continuation can be readily granted).

So, if you miss your court date chances are your attorney has sat through at least the "second calendar call," some attorney's may leave the courtroom. 

At the beginning of court the Assistant District Attorney (or Clerk) calls the roll for that session of court.  If you are not there, a second calendar call takes place about 45 minutes later. While there is no legally defined time in which a lawyer must wait for his client, I generally wait at least 1 hour (more if I know the client is traveling a great distance). 

Eventually if you do not appear, your case is marked "Called and Failed."  This means you have less than 20 days to go to the courthouse and fill out a motion for continuance of your case.  In some cases your attorney can do that for you - once he has been contacted.  Usually a new court date is granted if sufficient reason is given for your absence.

Now if you wait too long, then a "Failure to Appear" will be entered.  Two things occur at this point.  First, your driver's license is revoked and it will cost approximately $200 to get it back.  The second, and more important event, is that a warrant will be issued for your arrest.  Although the Wake County Sheriff can come to your home and serve the warrant, many people are arrested due to traffic stop.  If you are in a situation where a FTA has been issued, it is best to call an attorney to give specific advice on your options.

Nothing in this Blog or of any project of AJC Legal Services, should be construed as an attempt to offer or render a legal opinion or otherwise engage in the practice of law.

How do you feel about privacy and your DNA?

I have created a very short survey on this topic.  If you participate, you will be given the raw data prior to the resulting report publication.

DNA Survey

Lawyer Buddy TV Shows

There has been Perry Mason, Matlock and L.A. Law.  In the first two cases the shows focussed (generally) on the experiences of a solo attorney.  L.A. Law took this to a new level by creating an ensemble cast.

Recently, however, there is a fresh crop of new television shows focused on law firms.  The newly created shows have followed a "buddy" format.

The Defenders is probably the most "realistic" of the shows.  Based on a real Las Vegas firm, Cristialli & Saggese, it presents the viewers with a look into a thriving Las Vegas firm.  The fictitious firm Mirelli (Jim Belushi) & Kaczmarek (Jerry O'Connell) handles outrageous, but still believable cases (e.g., stolen sports memorabilia).  The show also gives us some glimpse (similar to the CSI shows) into the characters' lives as well as their friendship.

If The Defenders is a law drama with a buddy focus, then Franklin  & Bash (Breckin Meyer and Mark-Paul Gosselaar) is buddy show in which the main characters, incidently, are lawyers.  An over-the-top show which could easily be called "Lawyers Behaving Badly" this is by far the funniest of the trio of shows.  From courtroom antics, to advertising on the backs of bikini-clad women, each week one could play a drinking (soft drinks) game based on every rule of professional conduct these lawyers break.  Moreover, the combination home-office-man cave is shown, more often then not, as a party palace.  If practicing law could ever be this fun ....

The final show in this trio, Suits, is the most depressing (and most realistic) of the three.  The show is set around a top New York law firm and gives glimpses into such "antics" as partner maneuvering, associate hazing, and 80 hour work weeks.  What is unique is that first year associate, Mike Ross (Patrick J. Adams), is not a lawyer.  In fact, he never went to law school.  He has and exceptionally gifted eidetic (total recall) memory.  He made a living taking tests (e.g., the LSAT) for other people.  In fact is during one of those tests that he meets Harvey Specter (Gabriel Macht) while fleeing the scene.  Harvey takes Mike under his wing as his associate, mainly due to the fact that Harvey didn't want an associate. 

Harvey is an archetype of the New York lawyer.  He has $3,000 suits, membership in a car club, $1,000 billing rate, and $500,000 sitting in an account to use as his buy-in for senior partnership.  Mike, however, has $200 suits and rides a bicycle to work.  While he doesn't have $200,000 in law school debt, he also doesn't have a law degree.  Thus, his every day is tense with the fear of being "discovered."  The mistreatment Harvey gives Mike is probably better accepted by the viewing audience then if it were given to a 1st year associate from Harvard.

So, we have a smorgasbord of "buddy" legal dramas.  From the tense Suits to the outrageous Franklin & Bash and the middle of the ground The Defenders.  Whether or not any of these shows will encourage or discourage students from going to law school will never be known.  But compared to shows like Perry Mason, these aren't your father's law television programs!

P.S. How do I get a job as a television legal consultant? Seriously.

Looking into the Eyes of Madness

You hear people sayting that they are "depressed" or "anxious."  You also hear others saying things like "John Doe is insane."  Well, I had the chance to look insanity into it's eyes, and it was unlike any of the "insanity" that has been bantered around in the workplace.  It brought forth in me more terror than I had ever known or imagined.

I had to represent a client once who was off her medication.  It was said that she was "bi-polar," in in reality that may have been a kind diagnosis.  I was called to the local jail to meet my new client who had been arrested on the very minor charge of disorderly conduct in a department store.  The client had been moved from the general detention jail to one which is more secure.  I found that puzzling.  Then when I met her, it was clear why.  Sitting behind steel and glass, I must have been as nervous as Jodie Foster in the Silence of the Lambs.  Over a period of two hours I was able to get the basic information I needed for a defense.  In general, these types of conversations take about 15 minutes. During the conversation I found out the client had been off her anti-psychotic drugs for about a month.

Between the times in which I got answers to my questions, I heard of shadow governments, aliens, hidden bible messages, the new messiah, and even more things I cannot even explain.  Even in shackles, she jutted around the small room, hit the glass, screamed, and did a variety of other disturbing actions.

The magistrate had denied bond due to my client's behavior at her first appearance.  She was unable to post bond, not because she didn't have the 15% for the bondsman, but because she had nobody to put up collateral for her release.  Thus, she was to stay in detention until her court date which was about three weeks later.

As an attorney, you have a duty to "zealously defend your client."  In this case, I felt the defense would require more than that.  It required taking an active role in having the client treated medically.  This was not as simple as I thought.  As a defense attorney trying to help a mentally ill client, it was assumed I was looking to have her declared mentally incompetent to stand trial.  This was the exact opposite.  I was looking to have her mentally competent.

By working through the system, my client eventually got the appropriate drugs.  As time came closer to the court date, I eventually had meetings in a single room with my client unshackled and uncuffed.  A new person was my client.  When the court date came, the judge accepted a plea and my client was sentenced to "time served." By lunchtime that day she was out.  I made sure she got into a taxi and sent her on her way home.

She still keeps in touch.  She continues to take her medicine and has a better understanding of the consequences of being unmedicated.  She goes to her job, drives, enjoys the company of friends, and has a normal life.  To think that less than a month before this I had stared insanity in its eyes - and I blinked.