Court Subpoena Phishing Scams

A friend and client of mine received an email from someone purporting to be a court clerk stating that he had a court appearance two days from today and the information needed was attached in a zip file. It referenced a case number, but there was no indication of what court the case was filed in.

He of course like any good citizen was concerned about his need to be in court for some reason and immediately contacted me. I confirmed it is a phishing scam and there is no reason for him to open it.

There was no such court with any such case number. There was no reference to an actual case.

Any requirement to appear in court requires a subpoena from an attorney, or order by a judge, or by someone who has followed the proper procedure to require another person to appear, produce documents, and/or testify. It must also properly be served. As far as I know, there is no court in the United States that permits initial service or service of a subpoena by email. In some cases where a person or business is regularly represented by an attorney it is common for on attorney to contact the other and request that the attorney accept service on behalf of the client, thereby avoiding some of the formal requirements of proper notice and service. That for the conveniences may happen through email, but it is agreed upon by the attorneys. This is rare and the attorney will most likely contact the client before accepting such service.

If someone sends you an email notifying that you have a court appearance, check with your attorney before opening any attachment. It most likely is a phishing scam and you’ll end up needing to clear your computer of malware and/or viruses.

Issues to consider when loaning money to a friend or family member.

At some points in our lives many of us are approached with the request to borrow money from a friend or family member. Most of us want to help others out and feel it unnecessary to consult a lawyer or other professional on the details. The following are some things to consider if you are going to loan money to a friend or family member.

Evaluate whether you can you afford to loan the money. Do you have your needs met? Do you have your emergency funds squared away? If the answer is “no” or “I don’t know,” you may want to take a moment to evaluate whether or not you want to put yourself at risk for another person. Sometimes we need to go out on a limb for a family member, but if you are unable to care for yourself, it will be difficult to help someone who is in need, think of it as being in the middle of an ocean without a lifeboat trying to help someone in the same circumstance.

If you are in a position to loan money, should you put it in writing or not? My advice is to always put it in writing and have a lawyer help you. While many may not agree, I cannot tell you how many times Party A claims the $5,000.00 check given to Part B was a loan and Party B stating the check was a gift. If you are trying to seek recovery, it is your burden of proof to show that the money was a loan and not a gift. A note on the memo line may or may not cut it in some instances. If you are loaning money, put it in writing and make sure the borrower signs the instrument before or at the time the money exchanges hands. Do not allow your feelings to influence you. If you have any expectation of being repaid, memorialize the transaction in writing. Money has no idiosyncratic feeling to return to the original lender. Most people who seek money from a relative or close friend appeal to the relationship with that person. The money has no personal attachment to the lender once it leaves your pocket book or checking account. Many individuals feel they are more likely to be paid back monies loaned to a relative and friend because of mutual respect or feelings. The truth ranges from people falling on hard times to some people thrive on taking advantage of others. Some of the aspects of the loan to put in writing include, but are not limited to the amount borrowed, the time in which to repay the loan, the interest rate, fees and costs associated with the loan and who bears the costs, whether or not there is collateral, what happens if the borrower is unable to pay.

Consider whether you want your attorney to draft up the loan agreement and gather the information you need on your behalf. Any savvy lender will obtain information before reviewing whether or not to lend money to a borrower. Thank about all the information you had to provide your lender when you wanted to buy a car or house or simply open up a credit card account. It should be no different when you loan money to a friend or family member if you expect to be paid back. Gather information you need to collect the loan. In the even of default, do you have the borrowers information needed to collect the debt if you need to seek involuntary collection? If you need to issue a bank or wage garnishment, do you know the borrowers social security number, where they bank and where they work? If you send the matter to collections for a collection agency or attorney to figure out, you will be looking at paying costs and attorney fees out of pocket and/or giving up a percentage of what is collected. If you have the borrowers social security number how will you store it securely to ensure the number is not stolen from you from an identity thief? Will the person you are lending money give you the right information?

How one person handles money is very different from the next. Some are more detached than others, others are better at saving than spending and vice versa. If someone comes to you to borrow money, you are probably a good saver. The person asking to borrow money may be doing so for a more than one reason of reasons. Reasons range from a desire to start a business, cover medical expenses, veterinary bills, to buy a necessity, buy something wanted or to pay off a debt. Whatever the reason may be, recognize it for what it is worth; and realize the reason may be multiple and may be factor in to whether or not you are paid back.

Talk through how that person is going to repay the loan. If your gut tells you the plan the borrower articulates seems unlikely, it probably is. It is a good time to discuss a strategy to come up with the funds. Remember, once the money leaves your hands, do not obsess how the other person spends it or how they live their life, focus on the terms of repayment. Do not get angry if the person suddenly has nice clothes, a new car, a new pet, goes on a vacation, dines out, seeks salon services or other things you deem frivolous. Loaning money should not be used as a means to control someone else’s life. If your purpose of loaning money is to influence how someone behaves you may find yourself sorely disappointed.

Obviously, I am a huge advocate for having an attorney advise you in your own personal lending situation. I do recognize that lawyers can sometimes get in the way of a deal, but we are also here to look out for our clients and avoid problems. Avoiding problems is much more cost effective than fixing messes. Often times we cannot appreciate the fact that a problem was avoided because we would not have known otherwise. If you are a novice at lending money to friends and family, a few hundred dollars upfront to evaluate and draft a promissory note or other lending instrument may not save you from hurt feelings if the repayment fails, but it may make it less stressful and more cost effective to enforce the agreement down the road.

Never loan money you are not willing to give away. No matter how strong the instrument, or whether an attorney helped you draft the documents or obtain the information, the truth is, you may never see the money you loan again. The person may become permanently disabled, refuse to work, file bankruptcy, make themselves insolvent, or pass away before the loan is repaid. If you cannot accept the notion you may never be paid back, or if you cannot afford to not be paid back, do not lend money. You can simply say no and smile. If you are feeling particularly generous, there may be other ways you can offer to help, such as buying a bag of groceries, pay a bill directly or some other service.

Oregon Statutory recovery of costs and attorney fees in contractual claims

Many people try the self help route when they enter into an agreement with someone who they think is a good friend, only to find out the other party fails to perform his or her end of the bargain.

Not to long ago, I helped a kind lady out who was conned in to prepaying for goods and services for which she did not receive. To make matters worse, the business owner refused to refund her money and more than 60 days had passed so the credit card company refused to help her out. She has advanced more than $5,000.00 on a project and no work was done. The other party made various bogus claims as to what her money was spent on and conflated issues to argue that she owed him money for some unrelated and non-existent matter. The bottom line was, she paid for something and received nothing. She thought her only recourse was small claims court because she could not afford an attorney to prosecute her claim. She was also very unsure of the process. She obtained a packet of paperwork from the court, but was overwhelmed and emotionally aggravated with the process in part because the person who took advantage of her was a friend of the family and she simply could not believe she was being treated poorly. Further, she is not a litigious individual and was upset she had to seek such measures and felt she had little to no hope of success.

Fast forward a few months later and we secured a judgment for her that allowed her to recover the money she advanced in full along with her, court costs and attorney fees with a handy little tool called ORS § 20.082. The statute provides for attorney fees for contracts which are less than $10,000.00. Most people are not aware of this little statutory provision or the process by which to implement it.

Contract drafting and enforcement does not have to be complicated. If you need help, give us a call.

CLS Bank Intl. v. Alice Corp. Pty. Ltd.: The Patentability of Software

On May 10, 2013, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion in CLS Bank Intl. and CLS Services v. Alice Corporation Pty. Ltd. (No. 2011-1301, slip op. (Fed. Cir. May 10, 2013)) confronting the hot topic in patent law of patentable subject matter as applied to computer software. After the Supreme Court of the United States decided Bilski v. Kappos (130 S.Ct. 3218 (2010)) in 2010 rejecting the machine-or-transformation test (adopted by the CAFC prior to Bilski) as the sole test for patentable subject matter, the patent law community anxiously waited to see how the CAFC would approach patentable subject matter. In CLS Bank Intl.’s 134-page behemoth of a decision, the CAFC attempted to explain how patentable subject matter should be decided in cases involving computer software. The result was a per curiam opinion with a concurring opinion joined by only five out of the ten judges presiding, multiple dissents-in-part, a single complete dissent, and a reflection by Chief Justice Rader concerning patentable subject matter decisions made during his tenure on the CAFC. So how should we determine what computer software is patent-eligible?

Background of the Case

CLS Bank Intl. involved four different patents held by Alice Corporation Pty. Ltd. (“Alice Corp”) relating to “a computerized trading platform used for conducting financial transactions in which a third party settles obligations between a first and a second party so as to eliminate ‘counterparty’ or ‘settlement’ risk.” CLS Bank Intl., No. 2011-1301. The United States District Court for the District of Columbia (“District Court”) granted summary judgment holding that certain claims of Alice Corp’s U.S. Patents 5,970,479, 6,912,510, 7,149,720, and 7,725,375 were invalid under 35 U.S.C. § 101 (the statute relating to patentable subject matter). Alice Corp. appealed the District Court’s decision to the CAFC. On July 9, 2012 a panel of the CAFC reversed the District Court’s holding, finding that all of the claims at issue were patent eligible under § 101. On October 9, 2012, the CAFC granted CLS Bank Intl.’s petition for rehearing en banc.

Decision of the Court

In the per curiam opinion, the CAFC merely stated the holdings of the Court. The per curiam opinion affirmed the District Court’s holding that “the asserted method and computer-readable media claims of Alice Corp’s U.S. Patents were not directed to eligible subject matter under 35 U.S.C. § 101.” (Id.) As to the asserted system claims of Alice Corp’s U.S. Patents, an equally divided court affirmed the District Court’s holding that the claims were not directed to eligible subject matter under 35 U.S.C. § 101. The real excitement of the decision lies in the multiple concurring and dissenting opinions, as well as Chief Justice Rader’s reflections.

The largest concurring opinion, written by Judge Lourie, that the Court could muster was joined by five of the ten judges delivering the decision. The opinion reiterated the approach to determining whether subject matter is patentable is to first determine whether the subject matter falls within one of the four classes defined by 35 U.S.C. § 101 (process, machine, manufacture, or composition of matter) and, if it falls into one of these classes, then determine if it is excluded by one of the judicial exceptions to subject-matter eligibility (abstract ideas, laws of nature, and physical phenomena).

If a court determines that the subject matter is included within the judicial exceptions, additional analysis must be applied. At this point the analysis turns to whether there is any additional substantive limitations that narrow, confine, or otherwise tie down the claim so that the subject matter does not cover the full abstract idea itself. See Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289, 1300 (2012). The opinion recognized that this additional limitation arises from a genuine human contribution to the claimed subject matter (“inventive concept”). In addition, the Court stated that the genuine human contribution needed to be more than trivial as this type of contribution did not provide enough to prevent preemption of all uses of the fundamental concept in a field.

The opinion used this approach in deciding the patent-eligibility of the subject matter of CLS Bank’s patents. In holding the challenged patent claims ineligible, the Court made clear that merely adding generic computer functionality to increase speed and efficiency to an abstract concept does not provide a meaningful limitation necessary for patentable subject matter. The opinion also recognized that the Beauregard claims aimed at computer readable storage media presented only substantive limitations pertaining to the method steps of the program code embodied in the medium rather than the computer readable storage media itself, making it equivalent with the other method claims that did not have meaningful limitations.

The additional concurring opinions questioned the application of 35 U.S.C. § 101 by Judge Lourie’s opinion, arguing that the opinion had worked to broaden what is excluded from patentable subject matter under the judicial exceptions and even requiring a novelty requirement that had never existed before under § 101. The dissent added the argument that the rest of the Court had chosen to ignore the record of the District Court, as an appeal is only intended to be a “review.”

Where This Leaves Patent Law as Applied to Software Patents

It is important to recognize that none of the opinions, with the exception of the per curiam opinion that merely stated that the subject matter was ineligible for patent protection, received support from a majority of the judges. Therefore, there is no controlling law coming from this decision past the finding that the claims in question were not patentable.

What this decision provides us with is guidance of what courts and the United States Patent Office may look at in the future for determining if subject matter is patent-eligible. Judge Lourie’s opinion provided a method of which to apply for evaluating applications involving the judicially created exceptions to 35 U.S.C. § 101 (noted above). In particular for software patents, the opinion made clear that merely embodying an abstract idea in a computer application is not enough for the invention to be within patentable subject matter; there must be some additional genuine human contribution that limits the application from covering the entire abstract idea.

-Jeffrey S. Marlink, Patent Attorney

The Value of Accountability

People are often reluctant to hire attorneys.  Where did attorneys gain such a bad reputation?  Like other professions, a few bad apples spoil it for the rest of the lot.  As a member of the Oregon State Bar, having served two terms on the House of Delegates and as a member of the Marion County Bar Association, I find that working with most lawyers in Oregon to be enjoyable.  There is a sense of accountability among lawyers in Oregon, an accountability not only to the client, but to the tribunal and third parties.  This type of accountability lends itself to trust in the ability of the attorney.  Oregon applies Rules of Professional Conduct to its member attorneys and the bar is active in regulating the quality of its members.

An important challenge facing the legal profession is not the high cost of doing business, but the fact that sometimes online legal services appear to be the way to go.  What the client does not get with finding legal services online is accountability.

A few years ago, a prospective client came to me after having spent $2,500.00 filing an application for a trademark with an online service.  After reviewing the paperwork, it was clear the client did all of the work that a lawyer would do, and a lawyer would not have charged as much.  The client also assumed all of the risk and the service provider required the client to waive liability against the provider.  Ultimately, the client succeeded at registering the mark.  A lawyer would have handled the matter after gathering the necessary information from the client with ease. 

Recently a client came to me and, as many of my clients, that client had been taken advantage of by others in his life.  How does one build trust?  Many people tend to trust someone until proven otherwise.  Why is that?  What is it in human nature that makes us trust until we are hurt or harmed?  If it were the other way around, where trust is earned, what is the best way to accomplish that in a short period of time?  After all, attorneys are entrusted with the secrets of their clients.  When a client seeks legal services, what is there to indicate whether that lawyer is worthy of the matters before him or her?

In my endeavors as a professional, I strive to provide value for the services provided.  Most of all, as a real person, sitting at a real desk, I provide real accountability.  While we may not always like what we hear; sometimes the best solution is to assess the situation, make a decision and move on.  Before you decide to “do it yourself” or purchase legal services from an online site, take a moment to explore your options.  Sometimes lawyers are not as expensive as you may think, and most of the time it is worth hiring a professional who is accountable for his or her actions.

A good lawyer will want repeat business and look out for the interest of the client.

Jeremy Lin’s trademark application for “LINSANITY” is most LINtresting

As a trademark lawyer, I found the recent news that Jeremy Lin applied for the trademark “LINSANITY” following his recent rise to fame most interesting or “LINteresting.”

The news conjured up other recent trademark applications by famous people.  The first that sprang to mind is Nadya Suleman’s applications for “OCTOMOM” in ICs 16, 25 and 41.  Surprisingly Ms. Suleman overcame challenges by the Examining Attorney.  Further, no one opposed her mark during the opposition period.  A Notice of Allowance was issued.  Nevertheless, Ms. Suleman failed to file the requisite specimens in time in order to complete her registration process.  Could it be “OCTOMOM” diapers and clothing were not as commercially viable as once thought?  If Ms. Suleman wants to give this another try, she is welcome to call me.  She was very close to completing the process, but for whatever reason the mark was abandoned because a Statement of Use was not filed in within the time preiod prescribed and no extension was requested to file a Statement of Use at a later date.

In any event, Mr. Lin already faces some challenges to his application for the wordmark “LINSANITY.”  Two individuals, Yenchin “Mathew” Chang and Andrew W. Slayton, both of California, filed applications for the plain wordmark “LINSANITY” in IC 25 before Mr. Lin.  Mr. Lin should be able to easily overcome Mr. Chang’s application Serial No. 85535650, as Mr. Chang filed an intent-to-use application and he has not used the mark in commerce.  Mr. Slayton filed an in-use application.  Serial No. 85537764 claims a first use date of July 17, 2010 and a first date used in commerce as February 8, 2012.  Mr. Lin should be able to overcome such challenges to his claim in the mark; but the prior applications certainly do not make it easy.  It will be interesting to learn whether the prior applications were made in good faith.  Moreover, the name is associated with a living person.  It appears that both prior applications will likely meet challenges from the Examining Attorney, whomever that may be.  It will certainly be interesting to see how Mr. Lin and his attorneys along with the other parties and their respective counsels hash out this matter.

We will keep you posted.