Who the what?

A. Suppose there's a standard recipe for people who want to make coffee: harvest and prepare (or simply buy) some coffee beans, grind them up, boil them for a few minutes, and serve.

B. Suppose a company — let's call it Feurig — declares a patterned approach toward following this recipe:

  • Provide penetrable cups of a certain size containing prepared, ground beans.
  • Provide a ring sized to hold the cup, a mounted pin to puncture the bottom of the cup, a mounted injection nozzle to penetrate the top of the cup, and a hinged apparatus to automate these penetrations when a cup is inserted into the ring and covered by depressing a handle.
  • Provide an encompassing container capable of heating water, detecting its temperature, and injecting that water into the cup at a rate suitable for cooking the bean dust.

C. Suppose Feurig then implements this patterned approach toward following the recipe by making cups and a device to accommodate and process them.

D. Suppose further that a competing company with an interest in making coffee notes Feurig's success in the marketplace and creates a different machine — made from different materials, employing a different heating, monitoring, and injection facility, and penetrating the cup differently.

E. Suppose even further that yet another company makes a cup different from Feurig's but consistent with the scale of the holding ring  on Feurig's machine and capable of being refilled with arbitrary contents (such as tea or sympathy).

What is the API?

The API is not the standard recipe (A) for making coffee: that's an obvious practice deeply embedded in the common culture and widely exercised in industry and among hobbyists.

The API is not the device that Feurig made as an implementation (C) of the patterned approach that Feurig had declared, and it is not the competing machine (D), and it is not the alternative cup (E).

The API is B: a patterned recipe-following approach capable of being realized in a concrete implementation.

F. Suppose now that a complex culture of innovation and competition has arisen around the API defined in B, and that a company — let's call it Deploracle — comes along and buys Feurig.

Deploracle argues that its newly acquired intellectual property extends not just to the physical brewing device its wholly owned subsidiary invented, but also to the abstract pattern to which that device and its successors (and many knock-off devices) conform to ensure interoperability, substitutability, and some other seven- or eight-syllable word.

That's sort of like claiming IP rights not only over the particular car you manufacture, but also over the general idea of exposing a latch to open a door, providing access to a seat, and presenting a wheel, some pedals, and a feedback display to enable intentional control of a driving machine– a contingent set of conventions that declare a patterned approach to the general recipe for driving a car. (Adherence to those declared conventions of capability and method ensures that many automobile manufacturers can make a car, that many people can learn to drive a car, and that people who learn to drive a car can thereby drive any car that conforms to the expectations implicit in that training.)

So Diabetes-Benz lays claim not only to its actual line of cars, but also to the very idea of doing a car in that way, simply because they declared that convention when implementing their car.

Does that seem right to you?


You May, On Occasion, Encounter a Particularly Cunning Ham Sandwich

In the roughly six years I worked as a federal prosecutor, I never had a grand jury refuse my request to indict. Moreover, in that entire time — in which the feds sought between 5 and 10 thousand indictments in Los Angeles — I know of only one occasion on which a grand jury no-billed a case. (In that case, the INS — as it was still called — was trying to arrest a young man for deportation, and his mother released the family dog on the agents. The agents shot the dog. The grand jury concluded this chain of events did not merit prosecution for the mother, apparently.) My experience is not uncommon. It is notoriously easy to persuade grand juries that there is probable cause to indict. Hence the cliche referenced in the title of my post.

When a grand jury does no-bill a prosecutor, it's often dreadfully inconvenient. Usually one has to get approval from some officious higher-up (a Deputy Attorney General, in the case of the feds, I think) to re-present the case.

Wouldn't it be much more convenient to simply pretend that the grand jury had properly grasped the urgency of the government's case, and proceed as if the grand jury had returned a true bill?

Why, yes. Yes, it would. Take it away, Jefferson County, Oregon District Attorney's Office.

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Thanks to the Bush Administration For Helping Me Recognize That My Conscience Needs Protection

You know, for too long I've been content to follow my conscience within the frame of reference created by the requirements of my legal profession and the rules set by my employers, both public and private. I've always assumed that if my ethical obligations to a client or my fiduciary obligations to my employer conflict with my conscience, I ought to resign.

Now, thanks to example set by the Bush Administration, I realize that my conscience is entitled to special protection. By which I mean my job and my bar card need protection, such that I will have a right to keep them even if I violate their strictures.

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Jury Duty No-Longer-Live Blogging

Jury duty day two.  Friday my group was instructed to report this morning to a courtroom on the high-security floor, leading me to speculate it would be a gang case.  The judge in question is known to me.  He is renowned for carrying a gun on the bench and occasionally noting its presence.  I know him more particularly for some execrable rulings in cases I was connected with in one way or another, including on one occasion indulging the District Attorney's Office by issuing a search warrant for a substantial city newspaper, thus shutting it down for the day, because the DA wanted to discover whether a particular law firm had ordered a particular advertisement in that paper.   (A prosecutorial agency with more respect for the First Amendment or the rule of law would have arranged for a grand jury subpoena for the documents; the DA's decision to search and effectively shut down a newspaper for the day just to obtain advertising records even managed to draw the disapproval of competing paper the Los Angeles Times, which under other circumstances has been a reliably meek lapdog of the DA.)

Anyway, that's all based on what I knew and learned before I took an oath regarding the jury selection process.  I'll interpret that oath broadly to prevent me from liveblogging the process.  More if and when I am kicked off, which I suspect will happen today.

In Which I Wait For You To Hiss At Me

One of the first times that I got hissed in law school was in Torts class. Moran was the case — Moran v. Faberge, Inc., that is. Moran involved a moron who, in order to make a room smell nice, poured a perfume manufactured by the defendant over an open flame. As perfumes are alcohol based, a 'splosion ensued. Result? The court of appeals said that the plaintiff was entitled to a trial on a failure attach a warning label to the perfume about not dumping it on open flames.

I took the contrary position and argued that the danger of open flames is known to everyone, and that if someone is stupid enough in the first place to dump a substance of unknown composition into an open flame, no amount of warning — no matter how prominent, explicit, or neon-trimmed — is likely to suffice; that person will find a way to visit the burn ward. Plus, I argued, only somewhat less seriously, who are we to thwart fate? Isn't society better off if people who have not grasped "fire . . . HOT!" are tapped on the shoulder and invited, by rapid combustion if necessary, not to whelp similarly clueless children or otherwise promote social irresponsibility?

This was an unpopular sentiment at Snooty Lawschool. I was hissed, and several classmates would not speak to me for several days until I said something unflattering about private ownership of land or something.

Anyway, this all comes to mind because of Overlawyered's coverage of a lawsuit by one Brian Jacobs, an architect from Queens. Jacobs is suing Amtrak because Amtrak failed to prevent Jacobs from his dreadful burns and the amputation of an arm and a leg. More specifically, Jacobs went out drinking, went to Boston's South Station at 2 in the morning, tried unsuccessfully to break into an Amtrak train, then climbed up on top of the train and was electrocuted by overhead wires. Jacobs feels that Amtrak should have protected Jacobs from himself, by guarding the trains or perhaps by identifying moron drunks and stapling them to their chairs.

It's entirely possible that the suit will fail at one stage or another. But why not have a nice clear rule preventing the suit in the first place? Yes, Amtrak might, at great expense (derived at least in part from taxpayers), make its trains so drunken-moron proof that even people inclined to climb on top of them in the middle of the night would be safe. But the cost would be staggering. The concept do not climb on top of public transportation is surely as fundamental as the "Fire HOT" rule, and a person inclined to ignore it will surely ignore a great many other basic rules about trains, such as not lying under the wheels or biting the electrical lines or sticking their heads into the exhaust and so forth. Why spend the money so inefficiently making the trains safe from the Brian Jacobs of the world? Wouldn't that money bring more public good and happiness if it were spent on health care or debt reduction or making Amtrak trains slightly less like a slow-moving Port-a-potty?

And, once again, who are we to interfere with Brian Jacobs' destiny?

She will be amazed by your gigantic throbbing sentence

By the numbers:

25: The length, in years, of the sentence imposed on Steve Warshak, founder of Berkeley Premium Nutraceuticals, for fraud in connection with selling "male sexual enhancement products." That's federal time, boys and girls, so he's doing 85% of it.

100: The number of dollars, in millions, scammed by Warshak and his company through promising "male enhancement," delivering a worthless product, and then not giving refunds or returns.

0: Male enhancement, in inches, delivered by Warshak's products.

0: Amount that spouses and significant others assured Warshak's customers that male enhancement mattered.

[REDACTED FOR NATIONAL SECURITY REASONS]: Amount that, in fact, it mattered to the spouses and significant others.

3: Number of decent need-for-male-enhancement-in-federal-prison jokes I came up with but shall refrain from telling.

Al-Arian Case: Craziness, Mendacity and Incompetence Abound

So, how did we get to the point where a two-term senator who ran for the 2008 Democratic nomination (as an extreme long shot, but credibly enough to get a spot in the primary debates in 2007) can stand up at a public meeting and urge people to search out and harass the children of a federal prosecutor?

Well, it helps that we're talking about Mike Gravel, who is a little crazy. He's not take-orders-from-your-dog crazy like Son of Sam or anything. Gravel would never act on orders from his dog because he's convinced that his dog is a goddamn liar.

Also, it helps that the issue that inspired the rhetoric is the long, strange case of Sami Al-Arian.

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