Welcome, Nominee Kappos

kapposLike most patent practitioners, I am very pleased with President Obama’s recent nomination of a new Undersecretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO).  The nominee is David Kappos, vice president and assistant general counsel for intellectual property at IBM.  Kappos has over 20 years of intellectual property experience and manages IBM’s patent and trademark portfolios.  Worth noting is that each year, IBM obtains more U.S. patents than nearly any other company. 

In Kappos’s capacity as VP and assistant general counsel for IP at IBM, his views on many substantive patent law issues are well known.  For example, he is not a fan of pure business method patents (preferring, for example, the machine-or-transformation test).  He also generally supports harmonization efforts, including “opposition-like” post-grant review procedures.  His opinions on such issues have been praised by many and criticized by some.  Interestingly, some have also criticized his nomination for not emphasizing his potential to fix various problems of the USPTO, but instead focusing on his knowledge of the patent system in general. 

I, on the other hand, am relieved that his nomination has been surrounded by discussions of his general knowledge of the patent system. 

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Public Employee Bloggers Beware? For Now

computerIn mid-June of this year, the Ninth Circuit Court of Appeals decided the Richerson v. Beckon case, involving a First Amendment claim by a public school teacher after she was demoted for comments she posted on her personal blog (article in the National Law Journal can be found here (subscription required)).

As it happens, I included an analysis of this case at the district court level in my recent paper, Blogging While (Publicly) Employed: Some First Amendment Implications, 47 U. Louisville L. Rev. (forthcoming 2009).  There, I wrote in part:

In Richerson, the Central Kitsap School District initially employed Tara Richerson as the Director of Curriculum. She then was in line for a voluntary transfer to a new position that would permit her to work half time as a curriculum specialist and half time with a new instructional coaching model. Importantly, the instructional coach component of her prospective job required her to follow a model which emphasizes the sensitive and confidential relationship between her coaching position and the teachers that she would be mentoring.

Before being transferred, the school district became aware that Richerson was using a personal blog to be critical of her replacement in the Director position. Language is everything in these public employee free speech cases, so here is the entire blog posting in question:

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Explaining Sentences in Wisconsin and Federal Court

I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.”  As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences.  My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system.  The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems. 

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts.  My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.  The abstract appears after the jump. 

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