September Changes to Estates Practice: Enduring Powers of Attorney and Representation Agreements

The first of two major legislative changes to the Estates practice area, both slated for 2011, has come into effect at the time of the publication of this post.  At some point later this year, we have been told to expect the radical overhaul embodied by the Wills, Estates, and Succession Act (WESA); but today, we will have comprehensive changes to the Power of Attorney Act, the Representation Agreement Act, and more.  Why do I consider these part of the Estates practice area?

Generally speaking, Wills and Estates lawyers are the lawyers who deal with powers of attorney and representation agreements.

Before continuing, I must emphasize that all of the interpretation and discussion in this post is based directly and indirectly on Bill 29 as passed, which revises the laws I discuss here.  I presume in my discussion here that the revised versions of these laws will be consistent with what is contained in Bill 29.  If there are differences, then my discussion may need to be edited as I further review the revised laws and the literature dealing with them.

It is critical for lawyers practising in this area, and for our clients, to understand some of these changes.  In the following paragraphs, I will give an overview of some of the paradigmatic shifts occurring in the new laws. Continue reading

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Patent Assignment: Distinguishing Trolls from Legitimate Assignees, Part 2

My colleague, Ben Gornall, Patent and Trademark Consultant, has continued our earlier discussion.  My initial post was “IP Litigation as a(n Illegal) Business Model“, to which Ben commented here.  I replied with “Patent Assignment: Trolling the Gap between Potential and Actual Usefulness“, and Ben e-mailed me his more detailed analyses.  I apologize, mainly to Ben, for my delay in posting them.  Without further introduction, here is the second of Ben’s replies:

Part 2:

Regarding the optimal length of patent terms it seems to me the key question is this: At what point does the marginal economic cost from extending the patent monopoly begin to exceed the marginal economic gain from increased incentive to innovate?

This is a challenging question and the answer is highly sensitive to the prevailing cost of capital for investments of comparable risk to the patenable subject matter. Continue reading

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Patent Assignment: Distinguishing Trolls from Legitimate Assignees, Part 1

My colleague, Ben Gornall, Patent and Trademark Consultant, has continued our earlier discussion.  My initial post was “IP Litigation as a(n Illegal) Business Model“, to which Ben commented here.  I replied with “Patent Assignment: Trolling the Gap between Potential and Actual Usefulness“, and Ben e-mailed me his more detailed analyses.  I apologize, mainly to Ben, for my delay in posting them.  Without further introduction, here are Ben’s replies in two parts:

Part 1:

Patent rights can be acquired in a variety of ways and standing is a preliminary issue that helps weed out frivolous cases; however, a legitimate assignee or exclusive licensee ought to have standing to sue true infringers of its valid patent regardless of the number of times the underlying patent has changed hands. It’s all about creating liquidity and certainty in the market. The value of a patent and the resultant incentive to invent will be much greater if the prospective purchaser expects to be able to readily monetize that patent.

You raise a legitimate question as to how much of that value goes to the inventor versus subsequent holders of the patent. It’s a matter of Coasian bargaining and it’s somewhat analogous to the question of how much value goes to the founder of a company versus subsequent investors. There may not be perfect information available to facilitate optimal bargaining and inventors would be well advised to seek professional valuation of their patent before jumping at the first offer they receive. A small investment in a professional patent valuation can help position the individual inventor to negotiate a much better price.

Regarding licensing fees as “hush-money” for infringement damage settlements; that may be a way for some litigants to save face rather than admitting that they are settling. Continue reading

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Patent Assignment: Trolling the Gap between Potential and Actual Usefulness

Ben Gornall, a patent and trademark consultant in Vancouver, commented on my post regarding Intellectual Ventures.

(link directly to Mr. Gornall’s comment)

His comments left me asking a number of questions about the merits of so-called patent trolls. There is no question that there is value to inventors in knowing that they can receive reward for their innovations without having to market them – that they can invent, patent, assign, and let the assignee (the patent troll) look for possibly infringing uses and try to recover what they paid for the assignment.

What continuing relationship do the inventors have with IV?  Do they receive a share of the proceeds from the suits and settlements?  If not, what did they receive when they sold the patents to IV?  In other words, what portion of the proceeds – one could consider that portion the wholesale cost of the patent – makes it to the inventors to encourage “the progress of useful arts and sciences?”

This leads to my second question:  How did IV gain standing to sue for infringement of these patents?  Did they buy assignments of them from the original developers?  How far removed are they from the developers/inventors whose standing to sue for infringement is still rooted in the pro-development purpose for the patent regime? Continue reading

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Privacy between Private Parties and the Disclosure of Information

I was recently retained to advise a non-profit organization on a matter of privacy law.  They have given me permission to publish a redacted version of my opinion on the matter.

Specifically, the matter concerns the disclosure of member information to other organizations.  The organization wishes to protect its members’ information and asked for advice regarding how closely their policies align with the law.

Many of the legal obligations that I went over apply to a range of privacy issues, and how personal information is protected in British Columbia.

Although this article is derived from a legal opinion, as always, please do not take it as legal advice that necessarily covers your own matters.  Every matter is different.  There are likely details and contingencies in your own matters that would cause me or another lawyer to advise differently, and you must not consider reading this article as creating a solicitor-client relationship.

I will review certain principles and details of relevant law, and will apply it to the situation of protecting member information from other parties. Continue reading

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IP Litigation as a(n Illegal) Business Model

Patent Troll (c) 2010 Jeremy Costin; Thanks to Kaedra Kirilenko for supplying part of this image!Via Slashdot, “World’s Largest Patent Troll Fires First Salvo.”

Slashdot has linked to a WSJ article (“Big Patent Firm Sues Nine Tech Firms,” Don Clark and Dionne Searcey, December 9, 2010) reporting that Intellectual Ventures LLC has “raised $5 billion [USD] to amass thousands of patents” and is now suing for their infringement.

WST reports that until recent suits, Intellectual Ventures LLC had operated on a negotiation model with large companies.

Let’s make something crystal clear:

Intellectual Ventures LLC doesn’t make, invent, develop, create, or patent anything.

They acquire patents applied for and registered by others.  Presumably, these others are closer to the actual inventors whose inventions are the subjects of those patents. Continue reading

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Music for a Pound, or a Pound of Flesh?

First, a caution:  I tend to rant a bit more than usual in this post, and I use and quote certain “unprofessional” terms, such as “old farts.”  Perhaps most offensive of all, I quote Gene Simmons (by way of Ars Technica).

Before I tell you my thoughts on the Gene Simmons episode, though, you should know that later in this post I’m going to tell you about the Ars Technica article showcasing competing views on valuing and monetizing from two record industry executives.  Neither of the two discusses unauthorized copying as an issue, but instead they discuss how to make recorded music a desirable purchase.

KISS bass holder (it’s questionable whether one can really call The Demon a bass player if one also uses that term to refer to musicians such as John Paul Jones, Geddy Lee, Flea, John “Ox” Entwhistle, Duff “Rose” McKagan, and Willie Dixon) Gene Simmons has weighed in again on the unauthorized reproduction of music by music fans.  Ars Technica reports that he is engaged in a “puerile” battle of what passes for wits with “Anonymous,” the nom-de-clavier of 4chan’s electronic militia.

http://arstechnica.com/tech-policy/news/2010/10/gene-simmons-vs-anonymous-whos-the-bigger-asshole.ars

According to Ars, Simmons regrets not having been more vigilant in his marshalling of the RIAA cavalry back in 2007 when he uttered this battle-cry:

The record industry doesn’t have a f***ing clue how to make money. It’s only their fault for letting foxes get into the henhouse and then wondering why there’s [sic] no eggs or chickens. Every little college kid, every freshly-scrubbed little kid’s face should have been sued off the face of the earth. They should have taken their houses and cars and nipped it right there in the beginning. Those kids are putting 100,000 to a million people out of work. How can you pick on them? They’ve got freckles. That’s a crook. He may as well be wearing a bandit’s mask.  (Billboard, by way of Ars Technicahttp://www.billboard.biz/bbbiz/search/article_display.jsp?vnu_content_id=1003671447

Ars Technica further reports:

And earlier this year, Simmons returned to the idea of suing everyone in sight. “Be litigious. Sue everybody. Take their homes, their cars,” he said at the MIPCOM conference. The music biz “didn’t have the balls to sue every fresh-faced, freckle-faced college kid who downloaded material. And so now we’re left with hundreds of thousands of people without jobs. There’s no industry.”

Incidentally, being the optimist that I am, I can’t help but notice that if The Demon is accurate in his statistical analysis, then as many as 800,000 – 900,000 people may have returned to their jobs in the industry since his grim pronouncement in 2007.

I’ve been wondering what to say about this for a week.  Gene Simmons’ audacity is nothing new; his ignorant boorishness, however, is impressive (I had always thought of him as arrogant but intelligent until this latest).  Some old farts become curmudgeonly but interesting, their grumpiness being a product of the same experience that leads them to pearls of wisdom.  Age has done nothing to Mr. Simmons but make him more greedy, less productive, and conveniently forgetful of the fact that music – even the schlock he cranked out with KISS – is an art form and dependent on popularity rather than scarcity to be successful.

Music not shared is music not heard, and a band not shared basks only in obscurity.

I couldn’t come up with anything useful to say for the past week, because it just made me rant, as you’ve seen above.  Then came another article in Ars Technica this week, and it helped me put my rant in context. Continue reading

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Lawyers and iPhones (and iPads) Shouldn’t Mix

The Professional Conduct Handbook sets out binding rules for lawyers in BC, including the Duty of Confidentiality.  The first three rules of Chapter 5 provide the foundation for a lawyer’s duty to his client.  “A lawyer shall hold in strict confidence all information concerning the business and affairs of the client…”  “A lawyer shall … ensure the privacy and safekeeping of … information.”  “A lawyer shall not disclose … having been consulted or retained by a person…”

Not only is the information confidential, but the lawyer has a duty to ensure that confidentiality is preserved, even to the point of protecting the fact that someone is a client.

How far does that duty go?

“A lawyer shall not disclose … having been consulted or retained by a person…”

If I post on Facebook that I am spending a Monday afternoon at XYZ Corp. without stating that XYZ Corp. is a client, but XYZ Corp. is a client, I am violating the rules.  Most people would assume that whomever I am visiting on a Monday afternoon is a client, so if the visitee is a client, I am breaking the rules.

If I have a smartphone, and I use Twitter at the client’s location, and geo-tagging is turned on as is my smartphone’s GPS, I have now posted a location and time that clearly marks me as being at XYZ Corp. (especially if they’re geographically large enough not to be confused with a neighbour).  I’m clearly an idiot if I do that, because I have the option not to.

What if I’m not aware of that option, for example if I didn’t turn it on and it’s an “opt-out” function?

Back in June, Engadget’s Sean Hollister reported, “Apple can anonymously track the ‘real-time geographic location’ of devices and is free to share that data with ‘partners and licensees’ as well.”

Continue reading

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RoB Magazine declares victory on the Smartphone Plains of Abraham

The Globe & Mail’s Report on Business Magazine has declared Apple (NASDAQ:AAPL) the victor over Research in Motion (TSX:RIM) in a presumed battle between Cupertino and Waterloo for the smartphone Plains of Abraham.  Winner takes all, since according to RoB, they’re competing for the same singular prize.

Article in G&M RoB Magazine:

http://www.theglobeandmail.com/report-on-business/rob-magazine/why-apples-winning-the-battle-with-research-in-motion/article1683747/

A bit of history, according to me:  I sold cell phones when mobile data was new.  TDMA was being implemented in competing systems (D-AMPS and GSM) for the emerging digital cellular phone market, then called PCS, and CDMA was the buggy new kid from Qualcomm trying to challenge them both.  (TDMA and CDMA at How Stuff Works)

We were still dreaming of a functioning packet-switched data system, and there was no 3G or 4H or whatever.

My own hip-mounted silicon these days consists of two units:

I always carry a very light, thin, and relatively small phone with a smoking (figuratively) built-in mp3 player and supposedly 3G capability all but locked out by my service provider (that shall remain nameless here but for the suggestion that one of their sister companies, an airline, flew a plane full of nuns to promote themselves in a clever play on the company name (and did you catch my pun on “sister”?), and also they are supposedly owned by a famous always-smiling English billionaire).

I also own, but rarely carry, a personal digital assistant, also called a Pocket PC, that is not a mobile data device, in that it only connects to things by wire, wifi, or Bluetooth, but not by subscriber network.  (It’s a Dell Axim X50v.)

I don’t have anything powered by RIM or Google, and the last time I bought a Steve Jobs product, it had been designed by Steve Wozniak.

RoB Magazine declared victory for Apple because Apple posted better numbers recently than RIM.  Perhaps Apple is the better investment, either short term or long term – I don’t know – but to conflate investment advice with wholesale marketplace analysis is claiming (and failing) to see the whole forest by just a few trees.

Continue reading

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Research in Motion’s Opportunity to Promulgate Freedom

Research in Motion is having quite the week.  They’ve released a new device, the Torch, combining touch-screen capabilities with a slide-out version of their famous keyboard.  This new BlackBerry is RIM being competitive without losing sight of who they are.  The Storm – their previous touch-screen model – was a little too much “try to be an iPhone” and not enough “remember you’re a BlackBerry.”

The other news affecting this Canadian technology powerhouse is that several countries, none of which is a finalist in the Freedom to the People sweepstakes, are considering blackballing the BlackBerry for being too secure.  Here is a link to one of the articles reporting such:  http://arstechnica.com/gadgets/news/2010/08/its-official-saudi-arabia-bans-blackberries.ars Continue reading

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