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November 2019

The Shape of Things to Come

3dprint
   
        The idea of being able to replicate an actual 3 dimensional solid object from a digital model used to be something straight out of Star Trek. Today, if you can dream it then you can print it.  Enter 3D Printing. Additive Manufacturing or 3D Printing is a process of making a three-dimensional solid object of virtually any shape from a digital model. 3D Printing is achieved using an additive process, where successive layers of material are laid down in different shapes.  Additive manufacturing is expanding to become a manufacturing paradigm. It may be the next industrial revolution. But, it creates problems for intellectual property owners.

Additive manufacturing is expanding to become a manufacturing paradigm that potentially will disrupt the current industrial manufacturing base.  Proliferation of industrial-level 3D printers is available that can make plastic objects to industrial printers that can print materials such as metal and glass.  Thus, a 3D printer is potentially an infringement machine.  This process enables physical products and parts protected by intellectual property laws to be replicated.  There is no need to buy a replacement part when one can simply print one up from a file. This means virtual inventories and low cost volume production.  3D printers are at work in product design studios, engineering departments, manufacturing plants, dental labs and hospitals. Entrepreneurs are using it to manufacture almost anything including cars and houses.  Car fans can download designs for motors which are plastic but the actual motors, battery and suspension are made traditionally.

UNIVERSITY OF MICHIGAN

            In May 2013 University of Michigan researchers reported in the New England Journal of Medicine that they have used a 3D printer to create a custom made, life-saving implant for a baby boy. The baby had a rare disorder in which one of the airways in his lungs collapsed when he exhaled.  This problem caused him to stop breathing and turn blue.

           Using a 3D printer Michigan researchers custom-built a tiny flexible splint that will grow with the baby boy.  In lieu of making a cast of the boy’s airway with plaster, the researchers used a CT scanner which gave them a 3D blueprint.  The 3D printer permitted the doctors to design and produce the splint quickly. Custom designing medical devices using 3D printers are gaining momentum nationwide.

GUNS

            On August 1, 2018 Defense Distributed, a Texas Company will be able to publish its blueprints online to make guns from 3D printers.  The U. S. State Department, warned company Chief Cody Wilson in 2013 that he could go to jail for violating federal export controls. In its 2015 lawsuit Defense Distributed maintained that the State Department violated the company’s First Amendment rights by trying to control its online speech under federal law controlling exports of military articles.      

A settlement has been reached and the government has agreed to pay almost $40,000 of Wilson’s legal fees.  In addition to the 3D pistol called “The Liberator” Defense Distributors will be offering blue prints for AR-15-style rifles.1The pivotal issue was whether the government’s process for banning and permitting online speech had adequate safeguards. However, on August 1, 2018, U. S. District Judge in Seattle, Washington issued a temporary restraining order to halt the release of the blueprints online.

            On August 28, 2018 U. S. District Judge Robert Lasnik of Seattle, Washington, issued a preliminary injunction blocking the federal government from allowing publication of the blueprints.  His decision will stand until resolution of the multistate lawsuit seeking to keep the blueprints online. The irreparable harm to the states is outweighed by any First Amendment interest.  Judge Lasnik said although the blueprints can’t be uploaded to the internet, “they can be emailed, mailed or otherwise published within the United States.” 2

INFRINGEMENT QUESTION

            Section 101 of the Patent Act provides for the issuance of a patent to a person who invents or discovers any new and useful manufacture, process or composition of matter.  A question arises if existing intellectual property laws will cover some of the products engendered by additive manufacturing. The 3D printer can be used to modify existing products for appearance and functionality. And, in some cases, the modified product may be better than the original. This will reduce the sales of the original product manufacturer.  Can product manufacturers stop activities that reconstruct, repair and modify their products by those using 3D printers?

            The answer to the above question is probably yes.  Yes, because utility patents are available to cover protection for novel products and methods engendered by additive manufacturing.  Design patents and copyrights can cover ornamental and designs of the products. But, even “shrink wrap” license agreements that imposes restrictions on consumer use of software may not adequately address all of the challenges caused by additive manufacturing.  Companies that create and sell products that are easily subject to additive manufacturing like toys, footwear, aerospace parts, prosthetics and replacement parts are especially at risk of this new paradigm.

In November 2015, the Federal Circuit, in ClearCorrect Operating, LLC v. International Trade Commission, overruled a ruling of the International Trade Commission.3  The Commission blocked the importation of digital files that would that would permit operators of the U.S. 3D printing facilities to manufacture dental braces that infringed the patents on the well-known “Invisalign” brand of clear braces.  The Federal Circuit concluded that ITC power to block “articles that infringed U.S. intellectual property rights was limited to only material things and did not include digital transmissions. The federal Circuit reversed and remanded the Commission’s decision and concluded that the commission did not have jurisdiction.

            3D printing technology is a game changer in industry, medicine, jewelry making, art, housewares and a bevy of other areas.  3D printing is exploding because it is a low overhead way to run a business. And, the technology is adapting, changing and growing fast.

            At this time, prototyping appears to be the most effective 3D printing application. 3D printers that create thermoplastic tools are lighter in weight than traditionally made tools. Although 3D printing is in its infancy it is a blessing for manufacturers and entrepreneurs but a nightmare for existing intellectual property owners.  Printers require less employee oversight and are easy to use.  

3D PRINTED COURT EVIDENCE

            Expert witnesses face the challenge of presenting to the jury highly scientific subject matter that is difficult to understand.  Three-dimensional printing allows jurors to actually see or even hold a piece of evidence. This will have a powerful impact on their understanding of the expert’s testimony and ultimately on the outcome of the case.

 3D printing can be used in court to supplement expert testimony. For example, in a complicated medical malpractice case, a juror can hold an exact replica of a client’s heart.  3D printers can replicate very small details providing clear insights in explaining why an artificial heart valve surgery was or was not performed negligently.

3D Printing can also be used in a product liability case to demonstrate a defect or to show causation.  In a patent case, 3D replicas can make comparisons by using models of both the original and infringing product to demonstrate any material differences or similarities between the two.

FORD MOTOR COMPANY

            Ford Motor Co. in Dearborn announced in January 2019 its designers have started to work with Gravity Sketch, a 3-D virtual reality tool. This tool enables designers to use a headset, controllers and gestures to create a design seemingly in mid-air.

CONCLUSION

            3D printing in my opinion is a blessing for some manufacturers and problematic for others.  3D printers can create objects layer by layer using liquid materials like rubber and plastic with computer aided design software.  Three-dimensional printing may be difficult forintellectual property owners to identify and stop infringers.  This new technology of 3D printing will reshape markets.  Just imagine you hit a button on your printer and out emerges a prototype of a prosthetic leg.  It appears that aerospace and the medical sector will drive the most growth. The market could reach billions by 2020.  When end users or contract manufacturers can print products on demand creates challenges in protecting existing intellectual property.  The intellectual property triumvirate of patents, copyrights and trademarks were not created specifically to protect industrial design. The dialogue on intellectual property must now be on how to meet this continued evolution of product design and creativity within the ambit of our IP system.

 3D Printing is largely innovative.  But, product manufacturers need to be aware of 3D printing to identify and protect themselves from possible infringement.  My purpose is to raise their consciousness to what is presently going on. Each company by and through its officers and general counsel can decide how best to respond to potentially disruptive innovations.  Take the advice of one of my professors when I was a student in the Cradle of Intellectual America: “AWord to the Wise is Sufficient.”

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James A. Johnson of James A. Johnson, Esqin Southfield is Trial Lawyer concentrating in litigation ranging from serious Personal Injury, Intellectual Property to Civil and Criminal RICO.  Mr. Johnson is an active member of the Michigan, Massachusetts, Texas and Federal Court Bars. He can be reached at www.JamesAJohnsonEsq.com 

ENDNOTES

1.www.abajournal.com/news/article/lawsuit_settlement_will_allow_online_blueprints_for_3d_printed_guns    (last visited 2-8-19)

2.      www.abajournal.com/news/article/judge_extends_online_ban_on_3D_gun_blueprints_says_free_speech_right_is_abr/?utm_source=maestro&utm_medium=email(last visited 2-8-19)

3.  ClearCorrect Operating LLC v. ITC, USCA- Fed Cir-slip Op. No. 2014-1527 (Nov. 10, 2015).


When Scooters Take Over....

Scooters

Odds are that you have seen them—the orphan electric scooters.  They have no racks to which they attach. They have no person to whom they belong.  At first, it was just Bird. Then Lime. Now, at least in Detroit, there are more companies than we can keep track of.  These scooters are not only in Detroit. Other parts of Michigan have them as well, as well dozens of other cities like Denver, Oklahoma City, Italy’s Milan, and even Washington, D.C.  These operations usually start overnight without any warning. How does the old saying go? It’s easier to ask for forgiveness, then beg for permission? While the urban benefits may be apparent—despite begrudging to some municipalities—the legalities are still a little hazy.  

So What Are They?

These scooters are connected to phone apps that anybody can download.  Generally, the user has a map of the location of the nearest scooters to him or her.  If one is found, then he or she can “unlock” the scooter with the phone app. Then, the user gets charged a small sum per minute.  After the ride is over, it can be left anywhere with the promise that the user is adhering to any governing laws and rules regarding where the scooter can be left. 

Legally speaking, under current Michigan law, the Birds and kin fall under the definition of “electric skateboard.”  The Michigan Vehicle Code defines electric skateboards as follows: 

"Electric skateboard" means a wheeled device that has a floorboard designed to be stood upon when riding that is no more than        60 inches long and 18 inches wide, is designed to transport only 1 person at a time, has an electrical propulsion system with power of no more than 2,500 watts, and has a maximum speed on a paved level surface of not more than 25 miles per hour. An electric skateboard may have handlebars and, in addition to having an electrical propulsion system with power of no more than 2,500 watts, may be designed to also be powered by human propulsion.

For the most part, these scooters are treated like bicycles.  For instance, similar to a bicyclist, the scooter rider “upon a roadway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle.”  On the other hand, however, there are speed restrictions to the scooters.  

An electric skateboard shall be operated at a speed of not more than 25 miles per hour. An electric skateboard that does not have handlebars shall not be operated on a highway or street with a speed limit of more than 25 miles per hour except to cross that highway or street, and an electric skateboard equipped with handlebars shall not be operated on a highway or street with a speed limit of more than 45 miles per hour except to cross that highway or street.

These are the state laws within Michigan.  Of course, municipalities can create ordinances with additional restrictions “based on the health, safety, and welfare of [its] citizens.  Seemingly, Detroit does not have ordinances yet, but does have “guidelines,” which have been referenced in various online media after a memorandum was drafted on July 18, 2018 studying the compliance of the scooters with the city’s established codes.  The memorandum noted that:

[t]he proliferation of the Scooter fleets in numerous US cities has been met with enthusiasm by [Emerging Mobility Company] members, but has also created new difficulties in managing use of public streets, alleys, sidewalks, and other public spaces.  In some situations, inappropriate use of the Scooters can create a public nuisance or other hazard to public safety. In other situations, Scooters may be inappropriately parked so as to obstruct the flow of pedestrian and vehicular traffic within streets, alleys, sidewalks, and other public spaces.

The word going around, however is that ordinances are in the process of being created for the City of Detroit.  One primary thing that separates Detroit from a city such as Ann Arbor, for instance, is that Detroit has never been opposed to the scooters.  Detroit has been working to create an understanding with the companies, but has been welcoming of them.  Late 2018, the city agreed to let the scooter companies in town increase the amount they each had in the city to a total of 400 on the condition that 100 were located in neighborhoods outside of the popular downtown area.  

Are They Dangerous?

As with almost everything, there is a modicum of danger that comes along with the scooters.  This could be due to user error, equipment malfunction, or otherwise. As fun and perhaps convenient the scooters may be, there is no getting around the dangers that have been presented by their existence.  Some even contend that “lives are being destroyed by unregulated scooters” and that they are “badly affecting our quality of life.”  The scooters have even caught the attention of the Centers for Disease Control (CDC).  A recent investigation and resulting report indicates that head trauma is at the top of the “list of severe injuries involving the use of electric scooters,” which “could have been prevented by the use of a helmet.”  The scooters have gone so far as to become a platform point for local government elections.

Who’s Liable?

Of course, the reason why we want to know whether they are dangerous or not is so attorneys can figure out who to sue when a client comes walking in with an injury.  Right now, the answer is unclear as to who is ultimately liable. While injuries have been piling up, lawsuits are being filed throughout the country. This includes at the very least, class actions filed in California at the state and federal levels.  At least one firm based out of D.C.—Zukerberg & Halperin—has a page dedicated to these scooters.  

To be expected, in order to limit their liability, the scooter companies have user agreements, which include liability waivers.  These agreements are usually presented to the user during the phone app account creation process. Yet, these can be rife with ambiguities, contradictions, and otherwise.  For instance, by signing up for Bird, a rider is representing that he or she is “reasonably competent and physically fit.”  This leaves one to wonder whether he or she needs a physical from a doctor’s office and a certified stamp of “reasonable competency” and “physical fitness” approval.  Sounds silly, but this may very well end up being an argument point in a court of law. 

At the end of the day, as with any personal injury case or even product liability case, the liability determination may depend upon the specific set of facts in front of the court.  The decision-maker must take into account any rights that have been waived; whether the rider was following state and local laws, and safety instructions—e.g. not riding with more than one person or if a scooter is damaged; if any laws or ordinances were violated by any party; whether any insurance policies are in existence; and whether the scooter company did well to instruct its users on safe riding.  In terms of corporate social responsibility, the brunt of the responsibility will lay with the scooter companies. While an innovative and helpful service should not be shut down because of the irresponsibility of a few riders, the companies must show that they are doing all they can to ensure safe practices.


Tips & Tricks for Effective Oral Advocacy

Shutterstock_526422091

Whether you want to be a successful litigator or merely survive oral advocacy class, find below some tips and tricks that I’ve found many law students and young lawyers neglect. These tips and tricks often go equally well for judges, juries, and professors!

Preparation is Most Important

In speaking with numerous judges, this is the number one piece of advice they have for young lawyers. How you say it is important, but there is no substitute for being prepared. Know your case inside and out and top to bottom. You should always strive to know your case better than anyone else in the room - possibly even better than the parties themselves. Effective presentation may make you look good in victory (or defeat) to a full courtroom, but there’s no amount of presentation that will save you from being ill-prepared for court. The merits of your case are what matters at the end of the day, but you cannot effectively have the court consider your case if you are not familiar with the relevant and important facts. Know the facts of your case, the pleadings before the court, the remedy sought, the major players, your client’s name, the judge’s name, etc. If you’re worried you will forget any given important piece of information, don’t be afraid to come up with a system of notes you can reference in quick manner if you are stuck. 

If the Judge Asks a Question, Answer It

This may seem obvious, but it’s amazing how often a lawyer will try to avoid answering (or simply not actually answer) a judge’s question when it is asked. In most hearings, the judge will make the decision. It is their opinion of the facts and law that matters. In the room, they are the ears that matter. Failing to address the decision maker’s questions is like acting in a play and putting your back to the audience. Their questions reflect their thinking on the case and what they care about. If someone’s making a decision that affects your client or your position, listen to what they are asking and respond. This is equally, if not more important, in a jury trial where the jury gets to ask questions. If you know what the jury’s thinking about and you have a good argument to make regarding such, make that a big part of your presentation. If the jury cares about something, you need to care about that as well. 

Answer the judge’s question, but do not avoid telling the judge, “No,” if that is what is required by your position. Judges will not always like or agree with your answer, but they do need to hear your answer. They’re not going to hold your position against you as an attorney so long as you can reasonably defend it. Judges recognize that attorneys are advocates and oftentimes will defend a position that may not be a winning or likeable position. They’re not going to rule in your favor simply because you avoided disagreeing with them. In responding to the judge, answer their question directly, “Yes” or, “No,” if possible and follow up with an explanation as needed. If the judge asks for authority on something, present the case name and cite or say there is no authority for that position. A judge is not likely to cut you off at only a yes or no – though it does sometimes happen if they’re not actually looking for an answer or if you have already avoided answering their question multiple times. In that case, they were likely to cut you off as soon as you started talking no matter what you had to say and it may just be unavoidable. 

More often than not, however, the judge simply wants the best arguments before them in order to make the best decision. Remember that you are the best and oftentimes the only advocate for your client and position. Usually, no one else in the room is looking out for your client’s interests – not the judge, not opposing counsel, etc. Your client’s position will not usually win without an advocate for the position in the room. You must be that advocate even if it requires disagreeing with the judge. 

Take a Moment as Needed

Time passes strangely when you’re in court. Oftentimes, court is hurry up and wait. You must arrive on time or early to present when the judge is ready for you – no matter what time that is. You will often have to wait your turn to have your case heard and then be immediately ready to go as soon as your case is called. The passage of time is strangest, however, with respect to how a delay in speaking is perceived by you and how it is perceived by the judge or anyone else. While a few seconds of pause may seem like an eternity to you, it is often not noticeable to anyone else in the room. Sometimes, you may just need to take a moment to collect your thoughts in order to better frame or present your argument.

No matter how well-prepared you are and no matter how long you practice, sometimes a judge will ask you a question you were not ready for or you may simply lose your place in your argument momentarily. Do not be afraid to ask, “One moment, Your Honor.” Take a few seconds to gather your thoughts and find your place again or consult with your client with regards to anything you’ve missed or any questions they have. A few seconds may seem like forever to you, but oftentimes the court will not even register the delay – especially if you ask for the court’s grace as suggested. A few seconds of silence gathering your thoughts is far preferable to a series of filler words or incoherent and unrelated arguments. It’s called the practice of law for a reason – except for the extremely rare occasion, a conscientious lawyer will always walk out of a substantive hearing wishing they had said or done something different. Oftentimes, it’s something small such as putting more emphasis or less emphasis on a given point, saying something in a different way, or wishing they had remembered to include a given fact or argument. A few moments to collect your thoughts may help to limit or eliminate a lot of these concerns. It may seem like forever to you, but everyone in the court room is probably relieved to have a few moments to take a breath – especially the court reporter! 

Volume and Pacing Can Be Helpful

That brings me to my next point – volume and pacing can be helpful. Speaking rapidly may cause some of what you say to be missed by the judge, but it will surely also earn you the ire of court reporters and recorders who may have to create a transcript from the hearing. When adrenaline or emotions are high, it’s easy to begin talking rapidly, but you should learn to control that urge. 

Careful and intentional pacing and volume can also assist in your presentation. Most people have a typical volume or pace of speaking. Modulating from that volume or that pacing can help to accentuate a point to the judge or jury. If you normally speak quietly, don’t be afraid to speak louder or more direct. Appearing more passionate or emotional than usual will help convince a jury you genuinely believe your position or highlight key portions of your argument that are important for the jury to consider. If you normally speak loudly, lower your voice and draw the judge or jury in. It’s a great tool to draw suspicion on a fact or highlight a key fact depending on your presentation. Changing pacing can also be extremely effective in keeping the jury engaged and drawing attention to key portions of your argument. Remember that the best arguments only succeed if they’re heard by the factfinder.  

Find Your Own Style

You may start to see a theme in my articles – make up your own mind, be yourself, find yourself, it’s your practice, etc. But oral advocacy is like everything else - it’s important to find your own style. While it may be helpful for you to continue to hone your presentation and your craft, it’s all about finding what does and does not work for you. If you’re not being genuine with a judge or jury, they’re often able to pick it up. Work towards being a better version of the advocate that you are. Like certain clothing items, certain techniques may not fit you. Figure out what works, don’t be afraid to explore new techniques, and add them to your repertoire if they work or put in the work to make them work for you. Hearings, and especially jury trials, are oftentimes a theater performance where you are always performing. Put your best foot forward and use your skills and presentation, learned through preparation and practice, to be an outstanding advocate for your client. 

Nobody’s perfect. Law is a practice. Continually work to improve your advocacy to better serve your clients (or your GPA!) Good luck out there!





What Is A Good Cause Adjournment of a Preliminary Exam?

     Adjourn

    Today is your client’s preliminary exam. A preliminary examination is a preliminary hearing in which the prosecution must show by a probable cause standard that a felony was committed and the Defendant committed it. A Defendant’s right to preliminary examination is a statutory right.  Meaning that this right is created by legislature and not a fundamental right guaranteed by the United States Constitution. People v Johnson, 427 Mich 98, 103, 398 NW2d 219 (1986). A Defendant in a felony case has a right to hold their preliminary exam within 14 days of the arraignment on the warrant. MCL 766.4, MCR 6.10(E)(4). In addition, another timeline for the preliminary exam exists and the preliminary exam must be held no less than five days or more than seven days after the date of the probable cause conference which must be held not less than seven days or more than 14 days after the date of arraignment. MCL 766.4(1).   

    Now that you are prepared to proceed to exam, however, the prosecution is seeking a good cause adjournment. What exactly constitutes good cause in a criminal case? There are several cases that deal with good cause adjournments of preliminary exams. In People v Bukner, 144 Mich App 691, 694, 375 NW2d 794 (1985), the Court of Appeals found that good cause exists when the alleged victim is hospitalized. Illness is also considered good cause. People v Brown, 19 Mich App 66, 68, 172 NW2d 58 (1969) The court has also found that if a police officer is on vacation good cause exists to adjourn the preliminary exam. People v Horne, 147 Mich App 375, 383, 383 NW2d 794 (1985). Good cause also exists when there are scheduling conflicts of counsel. People v Lewis, 160 Mich App 20, 32, 408 NW2d 94 (1987). Further good cause can be shown when appointed counsel needs time to gain familiarity with the case before holding a preliminary examination. People v Eddington, 77 Mich App 177, 1860190, 258 NW2d 183 (1977).  Most of the above are understandable reasons for adjournments of preliminary exams. The Michigan Supreme Court in People v Den Uyl, 320 Mich 477, 488, 31 NW2d 699 (1948) held that witnesses who were absent by likely to be produced and to testify constitutes a good cause adjournment. 

    The question is just how far does this reach. If you practice criminal defense you will come across situations where the prosecution fails to personally serve a subpoena on a witness and the witness does not appear. Does this constitute good cause? In People v Den Uyl at 494 the Michigan Supreme Court held that there must be a probability, as distinguished from a mere possibility, that the witness can be had at the time to which the examination is deferred, and that he will testify. Therefore, if the prosecution fails to subpoena the witness and no contact has been made to give the prosecution the probability of the witness appearing a good cause adjournment should not be granted. It is incumbent upon Defense attorneys to state this specific objection to the adjournment request on the record. Often times when Defendants are incarcerated this adjournment can lead to increased hardship on the Defendant.  Defendants have lost jobs, homes, and suffered other irreparable injury from serving additional time in jail awaiting a preliminary examination.  My hope is that in the future fewer defendants suffer the irreparable harm that is occurring across the state.

 

Elisha Oakes

The Law Office of Elisha M. Oakes, PLLC

Saint Clair Shores, MI