General Background Information
I practice primarily, and teach, in the field of intellectual property law (more specifically, patent, copyright, and computer law). I have also spent many years practicing antitrust and trade regulation law, and some administrative law. My published writings for the last several decades have been primarily in the field of computer-software related patent and copyright law. But I have been publishing from time to time about the exhaustion doctrine on and off over the last thirty years or so.
Since the late 1960s (when I started working on patent legislation for the Justice Department), my principal area of focus has been patent-ineligibility (or what used to be called nonstatutory subject matter), in regard to computer-software subject matter and business methods. This is on the patent side. On the copyright side, my principal area of focus has been derivative works in regard to computer software (such as add-on programs) and linking, framing, and pop-up advertising in regard to Internet pages (again, principally concerning derivative work liability).
Much of my professional work has been devoted to test cases (see Test case (law)). Some of these test cases were:
• FTC v. Dean Foods Co. — FTC has authority under “all writs” provision of Judiciary Act of 1789 to seek preliminary injunction against consummation of merger
• Lear, Inc. v. Adkins — seek overruling of doctrine of licensee estoppel (licensees not allowed to challenge patent validity)
• FTC v. Sperry & Hutchinson Trading Stamp Co. — establish that FTC may prohibit oppressive business conduct as “unfair” even though it is not an actual or incipient antitrust violation or even a violation of the “spirit” of the antitrust laws
• United States v. Glaxo Group Ltd. — seek overruling of doctrine that United States cannot challenge validity of patent it issued except on grounds of fraudulent procurement
• Dann v. Johnston — unsuccessful effort to get Supreme Court to hold that claim to software procedure for business/financial method was not patent-eligible; Supreme Court instead held that claimed invention was obvious
Gottschalk v. Benson, was also a test case, but not mine — it was the test case of Bill Keefauver, head patent lawyer of Bell Labs, who was trying to establish that computer software or algorithms could be patented. After Bill won in the predecessor court of the Federal Circuit appeals court, however, it became my test case — to try to get his victory overruled.
Since the mid-1990s I have used this logo to illustrate many of my writings. It is intended to symbolize how the judicial system and electronic, computer, or Internet technology interact. The "Puzzled Judge" is trying to understand some lawyer's explanation of Z = R + j ω L, where the R is "real" and the L component is "imaginary," or one is "lagging" or "leading" the other. (For R + j ω L you can substitute linking, framing, and their variants, and still get the same judicial puzzlement.) Of course the poor judge hasn't a clue and his decision in the case lags or is askew with technological good sense. But I am observing a slow improvement as the inevitable attrition of age causes a turnover in the judiciary. So, there's hope, Wikipedians, although it's in the long run. (But you know what Lord Keynes said about the long run.)