Friday, June 01, 2018

Private Investment Project Procedures. New Changes for P3s

The Federal Transit Administration has made substantive changes in a final rule describing new, experimental procedures to encourage increased project management flexibility, more innovation in project funding, improved efficiency, timely project implementation, and new project revenue streams for public transportation capital projects. It will modify 49 CFR Part 650,

A primary goal of this final rule is to address impediments to the greater use of public-private partnerships (P3s) and private investment in public transportation capital projects.

What it does

  1. Amended the definition of ‘‘Eligible Project’’ to require a project be included in the statewide long-range transportation plan or the metropolitan transportation plan, as those terms are defined in 23 CFR part 450.
  2. Amended section 650.11 to permit one application per phase of a project, and to clarify that multiple waivers or modifications may be sought in one application.
  3. Amended section 650.21 to require reporting to FTA one year after construction is complete, and for projects that include private investment in operations and maintenance, a report is required two years after the project has entered into revenue operations.
  4. Amended section 650.31 to permit applicants to identify proposed, as well as committed funding for the project, and to provide that FTA will post on its public website information related to waivers the FTA Administrator has granted. 
The final rule, which goes into effect June 29, 2018, was published May 30, 2018 in the Federal Register, Volume 83, Number 104, page 24672.

Thursday, May 03, 2018

SEC Action Lookup – Individuals

The SEC offers a new research tool; SEC Action Lookup - Individuals, or "SALI."
Search for individuals who have been named in SEC administrative proceedings, or SEC federal court actions.

Friday, April 27, 2018

Guidance on the impact of SAS on AIA trial proceedings

The PTAB will host a “Chat with the Chief” webinar on Monday, April 30, 2018, from noon to 1 p.m. ET to discuss the SAS decision, its impacts on AIA trial proceedings, and answer questions.
Guidance on the impact of SAS issued April 26, 2018

New Trials. As required by the decision, the PTAB will institute as to all claims or none. At this time, if the PTAB institutes a trial, the PTAB will institute on all challenges raised in the petition.
Pending Trials. For pending trials in which a panel has instituted trial on all of the challenges raised in the petition, the panel will continue with the proceeding in the normal course. By contrast, for pending trials in which a panel has instituted trial only on some of the challenges raised in the petition (as opposed to all challenges raised in the petition), the panel may issue an order supplementing the institution decision to institute on all challenges raised in the petition.
Order Supplementing an Institution Decision. Upon receipt of an order supplementing the institution decision, the Petitioner and Patent Owner shall meet and confer to discuss the need for additional briefing and/or any other adjustments to the schedule. While the Board may act sua sponte in some cases, additional briefing and schedule adjustments might not be ordered if not requested by the parties. Additionally, the parties may agree to affirmatively waive additional briefing or schedule changes. After meeting and conferring, the parties then shall contact the Board to discuss any requested additional briefing and/or schedule changes. It is expected that the parties will work cooperatively amongst themselves to resolve disputes and propose reasonable modifications to the schedule. Any remaining disputes shall be raised in a conference call with the Board. For details, the parties are commended to the order supplementing the institution decision entered in their particular case, and shall follow the instructions provided by the Board in such order.
Final Written Decision. The final written decision will address, to the extent claims are still pending at the time of decision, all patent claims challenged by the petitioner and all new claims added through the amendment process.

The SAS Institute Decision.
"When the Patent Office institutes an inter partes review, it mustdecide the patentability of all of the claims the petitioner has challenged. The plain text of §318(a) resolves this case. Its directive is both mandatory and comprehensive. The word "shall" generally imposes a nondiscretionary duty, and the word "any" ordinarily implies every member of a group. Thus, §318(a) means that the Board must address every claim the petitioner has challenged. The Director’s "partial institution" power appears nowhere in the statutory text. And both text and context strongly counsel against inferring such a power."

Friday, April 20, 2018

The USPTO wants your comments about patent "claim elements"

Since the Berkheimer decision ( CAFC, 2017-1437, February 8, 2018), there has been a lot of discussion about claim elements. The comment period is open until August 20, 2018. The USPTO will receive comments via email addressed to:

Why this is important.

"The question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact. Any fact, such as this one, that is pertinent to the invalidity conclusion must be proven by clear and convincing evidence."

What does this mean to you and how should this affect the MPEP?

Additional information may be found in the Federal Register, dated April 20, 2018, and the letter from Robert W. Bahr, Deputy Commissioner for Patent Policy, dated April 19, 2018.

Tuesday, April 17, 2018

What do Texas, Virginia and Montana have in common? Online Notarization!

Effective July 1, 2018, Texas House Bill 1217 will go into effect. It amends Civil Practice and Remedy Code section 121.006 by adding sections (c) and (d), and section 406 of the Government Code.

This new law should benefit remote transactions.

The details in this new law include a $25 cap for services, interactive two-way audio and video communication that meets the online notarization requirements under Subchapter C, Chapter 406 of the Government Code rules adopted under that subchapter, and the requirements to create and preserve the online record for a period of 5 years after the date of the transaction or proceeding, and authorizing a criminal offence of a Class A Misdemeanor.

Online notary procedures are outlined in Section 406.110 of HB 1217.

The Texas Secretary of State adds Texas Uniform Electronic Transaction Act ("TUETA"), which applies to electronic notarization.

Texas ENotary
HB 1217 text is located here:
Virginia ENotary 
Montana ENotary

Saturday, March 10, 2018

Do you have digital assets in your Texas estate?

The Texas Revised Uniform Fiduciary Access to Digital Assets Act was added by Acts 2017, 85th Leg., R.S., Ch. 400 (S.B. 1193), Sec. 1, effective September 1, 2017.

Digital assets are electronic records in which someone has a personal interest or right. They include electronic communications and records such as emails, text messages, online photographs, documents stored in a cloud, electronic bank statements, and other electronic communications or records. The advent of certain technologies has created challenges, particularly to a person who is tasked with managing the digital assets of someone who has either lost capacity or died.

The purpose of the Texas Revised Uniform Fiduciary Access to Digital Assets Act is twofold. 

Fiduciaries Have Legal Authority
First, it provides fiduciaries the legal authority to manage digital assets and electronic communications in the same manner that they manage tangible assets and accounts. Further this act specifies when a fiduciary may access the content of digital assets and electronic communications, and when only a catalog of the property is permitted to be accessed. 

Custodians Are Granted Immunity from Liability for acts or omissions in Good Faith
Second, it provides custodians of digital assets and electronic communications the legal authority they need to interact with the fiduciaries of their users while honoring the user's privacy expectations for his or her personal communications. A custodian is granted immunity from liability for acts or omissions done in good faith compliance with the provisions of this bill.

The full text of this statute is located here.

Wednesday, February 21, 2018

SWALL Inside Books Project

Heather Holmes, Assistant Law Librarian at the Harris County Law Library, is organizing a book donation at the SWALL annual meeting in Houston this April. For those of you attending and interested in donating, here is a link with additional information.

From information provided in the link: "Inside Books Project is an Austin-based community service volunteer organization that sends free books and educational materials to prisoners in Texas. Inside Books is the only books-to-prisoners program in Texas, where over 140,000 people are incarcerated. Inside Books Project works to promote reading, literacy, and education among incarcerated individuals and to educate the general public on issues of incarceration."

Monday, November 13, 2017

The Texas Supreme Court Discusses the Perils of Relying on Wikipedia

As I was skimming for cases discussing libel and the TCPA (Texas Citizens Participation Act), I stumbled into D Magazine Partners v. Rosenthal, No.15-0790, 2017 WL 1041234 (Tx. Sup. Ct. March 17, 2017). Some readers may have heard of this case because it concerns D Magazine and their publication of a local interest story. The gist of this story, and the subsequent libel case, revolves around an article published by D Magazine identifying the plaintiff as the “The Park Cities Welfare Queen.” The article contains an investigation of the plaintiff and provides evidence that she may be abusing public benefits while living in a wealthy part of Dallas etc.

Where does Wikipedia tie in? Well, apparently the Court of Appeals relied heavily on Wikipedia for the definition of “welfare queen.” As the Tex. Sup. Court states: “Essentially, the [Court of Appeals] used the Wikipedia definition as the lynchpin of its analysis on a critical issue.” Id. at 6. The Court took issue with this heavy reliance and spent significant space discussing their concerns with relying on Wikipedia for a critical issue. This sums up their concern:

“Of the many concerns expressed about Wikipedia use, lack of reliability is paramount and may often preclude its use as a source of authority in opinions. At the least, we find it unlikely Wikipedia could suffice as the sole source of authority on an issue of any significance to a case.”

Id. at 5. It did not end there. Justice Guzman drafted a separate concurrence “to emphasize the perils of relying on Wikipedia.” Id. at 10 (Guzman, J., concurring). There are a lot of nuggets worth including here, so I will pull out a few and present them next.

Both the majority and Justice Guzman acknowledge the usefulness of Wikipedia throughout, but they caution against reliance: “Wikipedia has many strengths and benefits, but reliance on unverified, crowd-generated information to support judicial rulings is unwise.” Id. at 10 (Guzman, J., concurring).

Justice Guzman even quotes Wikipedia’s warning against citing as a “damning indictment”: “As Wikipedia states more pointedly, “Wikipedia is a wiki, which means that anyone in the world can edit an article, deleting accurate information or adding false information, which the reader may not recognize. Thus, you probably shouldn't be citing Wikipedia.” Id. at 11 (Guzman, J., concurring) (emphasis not added).

Justice Guzman concludes with this, which looks like it could have been written by a librarian: “…in my view, Wikipedia properly serves the judiciary only as a compendium—a source for sources—and not as authority for any disputed, dispositive, or legally consequential matter.” Id. at 13 (Guzman, J., concurring).

It is nice to have the weight of the Texas Supreme Court on your side when you caution against Wiki reliance to your library’s patrons. For additional information about this case, you can read this article at Law 360 by Nicholas Sarokhanian.

Wednesday, October 11, 2017

All Things Texas!

In case you missed the announcement, the Texas State Law Library has made Texas statutes electronically available with complete coverage from 1879 to 1984!

Read more at the Texas State Law Library's website:

Historical Texas statutes are not the only exciting thing happening right now in Texas.

If you've headed over to the Texas State Fair, check out this older, but interesting blog post from the Dallas Public Library about the Fair:

Thursday, July 27, 2017

It's Not Just Legal Research -- Check Alerts & Analytics Too!

Numerous articles have been written lately about the differences in relevant results pulled back in various legal research databases (e.g. Robert Ambrogi's recent article and Susan Mart's research that really kicked off this discussion). That may just be the tip of the iceberg. In closely examining the resources you already have or those that you're trialing, you may soon discover more discrepancies than you'd expect when making apples to apples comparisons. Docket litigation alerts and even those trendy analytics that we can't seem to get enough of are at least two additional areas where more critical evaluation is needed.

New Litigation Docket Alerts
Back in April, I evaluated and compared two weeks' worth of patent alerts from six different resources. After examining well over 250+ cases, the results were quite surprising to me. Only two of the resources included all of the patent infringement cases and one of these, while including the relevant cases, did not always have the patent infringement cause of action indicated. Three of the six resources missed over ten cases in that two-week time period. The lowest performer of these resources missed seventeen cases! Some of the cases that were missing had both trademark and patent infringement causes of action, others just simply did not include your run-of-the-mill patent infringement case. My hypothesis is that this happens because of the nature of suit limitations on the civil cover sheets filed in federal district court cases:

Unless the various vendors have diligent people parsing through the filings (clue: it's not the vendors charging an arm and a leg) or their technology is such that they're capturing every cause of action, our attorneys may be missing cases that they (and perhaps some information professionals) assume are coming through. I've noticed too that at least one of the databases will miss cases in the alerts, but then eventually go back and tag those cases correctly. While helpful in conducting analytics later, it still misses the point of being able to count on these alerts for business development purposes and making sure we can keep our clients informed of new litigation of interest to them.

I recently decided to evaluate three resources on their analytics of patent cases filed within a certain time period in federal district courts and for certain companies (and making sure to take into account company subsidiaries, etc.). This would seem like a fairly straightforward exercise considering I was looking at data within the past two years and all three resources indicate that they have this coverage. Once again the discrepancies are disconcerting. While two of the resources were pretty close in their numbers, one resource was significantly off and clearly missing relevant cases. Try a similar search with analytics for judges too and you're likely to be surprised. It's easy enough to foresee this playing out in a less commonly-filed motion, where one database has identified four motions as having been granted and one denied, leading one to believe on initial glance that the motion will probably be successful in front of a judge, whereas another database has identified that there are actually a total of seven motions - four granted, two denied, and one granted-in-part/denied-in-part. What looked like a likely outcome for the client, doesn't look like such a sure win now.

Law Librarians & Information Professionals to the Rescue
This is a great opportunity for us to make sure we're asking questions of the vendors and comparing databases against each other so that when they claim to have the same scope and coverage of information, when we run a search, we're getting results that make sense. This isn't limited to the patent infringement arena either. I've seen it in securities products as well. The underlying issue here is really information literacy. Most of our attorneys are going to assume that we've evaluated and chosen reliable and accurate resources that have the coverage for their needs. Have we evaluated our resources to know that this is the case? With all of the analytics products coming out, do we emphasize in our training sessions with our attorneys that if possible they should be comparing analytics within the databases that track the same data or at least taking a deep-dive into the analytics when they're relying on it for an important strategic decision for a client's case? It would be great to have one go-to place for all of our analytics needs, but we're not there yet.