Lars S. Smith's blog

Oral Arguments in Bilski Case


On Monday, November 9, the U.S. Supreme Court heard arguments in the Bilski case, which is an appeal dealing with the the question of patentability of business method patents. A friend of mine that is a patent attorney in New York sent me the transcript. In reading the transcript, it appears to me that Attorney Jakes, arguing for the petitioner, Bilski, did a better job of presenting his case. His reasoning was simple, and clearly explained: Any process that is new and non-obvious, and occurs in the physical world, should be patentable. Attorney Stewart, arguing for the government's position, did not make as clear a presentation, and his explanations were somewhat convoluted, I thought.

But that may be unfair to attorney Stewart. Jakes's argument was basically, there are no limits to the subject matter of what is patentable as a process, except that the process may not exist solely in a person's mind. That is an attractively simple rule, but possibly way beyond the scope of what Congress intended in the Patent Act. Stewart had the harder argument to make: If not every new and non-obvious process is patentable, where do you draw the line? Jakes was arguing, in effect, there is no line. That's easy. Line drawing is much harder. 

What do you think? 

Innovation and Communications Law Conference


From today's Daily Docket:


The Second Annual Conference on Innovation and Communication Law, hosted this year by the University of Louisville Brandeis School of Law, came to a successful close on Saturday, August 22. The two-day conference featured over 50 speakers from four different continents around the world and from local law firms, discussing the role intellectual property and communications law play in the dissemination of information. Professors Cross and Smith, the faculty sponsors for the conference, want to thank everyone involved for their hard work which helped make the conference such a success. They would particularly like to thank Becky Wenning and Vickie Tencer for their assistance in planning and coordinating everything from the logistics of bringing in the speakers to arranging the event at the Marriott; and Jim Becker and Joe Leitsch for ensuring that the technology worked smoothly. They would also like to thank the many students involved in the conference as well, including Mike Swansburg, Mari-Elise Gates and Brian Stempian. None of this would have been possible without everyone's hard work. Well done and thank you! 

Law Clinic Work Winding Down for the Semester

As the first semester of operation of the University of Louisville Law Clinic winds down, I want to congratulate the six students that worked in the clinic this semester for a job well done. They provided legal assistance to over 40 low-income clients with eviction cases, referred to the clinic by the Legal Aid Society. While not every case resulted in a verdict for the tenant, in each case the students worked hard to assist their clients in dealing with a difficult legal problem, working to achieve the best result possible. Each student was professional, caring and thorough. I feel privileged to have had the opportunity to work with Amy, Christopher, Rebecca, Caroline, Chad and Dustin, and know that they each will be outstanding members of the profession.



Prof. Santry has told me that she doesn't want students to worry too much about scheduling conflicts. She emailed me the following note:

"In gathering information from family court, I have learned that the family court now stagger their dockets.  Mondays are still very heavy in 5 courtrooms but hearings are now on Tuesdays for 3 other courtrooms and Wednesday and Thursday have a EPO docket each for the two remaining courts. This is great news.  With the staggered family court hearings and 5 day housing court, we will have plenty of work for everyone with lots of flexibility."  

So, the key is, you do not have to have any particular day free to sign up for the clinic: when planning your schedule, you should make sure that you have a block of time free at some point during the week, and so long as you can do this, Prof. Santry will work with you to get you into court.

Please contact me at if you have any questions. 

More info: Register for the Clinic!


How to Sign Up for the Clinic for Fall 2009


As I discussed at the presentation today, Professor Shelley Santry is the new permanent director of the law clinic. She has 16 years legal experience in the Louisville legal community, as an attorney with Legal Aid, and most recently as an assistant county attorney.

The clinic is located downtown at 416 W. Muhammad Ali Blvd. Students enrolled in the clinic will work on housing and some limited domestic violence cases referred to the clinic by Legal Aid. Students that participate will be representing these clients as the primary attorney dealing with the matter, and so this is a great opporunity to get some hands on experience with real clients.

The clinic will consist of a weekly classroom meeting, plus clinic office hours.

The clinic class will be limited to eight students, and registration is only allowed by permission of the director, Shelley Santry. You can only take the clinic if you have completed 60 credit hours by the time you enroll in the clinic (i.e., credits to be earned next fall will not count). This is a requirement of the Kentucky Bar.

Here's how you apply:

Submit the following 3 documents to me by 4 pm on Monday, April 6 (my office is Room 286):


  1. Statement of Intent of why you wish to participate in the clinic (maximum 1 page, single spaced).

  2. Copy of your resume.

  3. Copy of your transcript.

I will pass your request on to Santry, who will make a decision on who will be in the clinic by 5 pm on Friday, April 10. Late applications will only be considered if space remains after consideration of timely applications.

Some things to keep in mind:


  • Housing court cases are heard during the morning, usually between 9 and 10:30 am. Therefore you should not schedule all of your other classes before noon. While we may be able to occasionaly arrange your case load to fit around your schedule to some degree, having extensive morning obligations will not work.
  • Students will have the opportunity to work with Prof. Santry on family court emergency protective order hearings on several Mondays during the semester. The hearings are usually scheduled some time between 8:30 and 2:30 on Mondays, so students should be prepared to have a 3 hour block of time available during this period. NOTE: You will only be expected to do this a few times, not every Monday. 
  • There will be a classroom component which will meet everyweek at the law school. 
  • You will have to sign up for offices hours which will require you to be present in the clinic offices downtown.
  • The first few weeks of school the classroom component will run more than the allotted time in order to teach you about the basics of working on a housing case or EPOs. Once we know everyone's schedule, Professor Santry will work with everyone to arrange the time for this program.
  • You will have to sit in on housing court before the semester begins.

Professor Santry will provide more detail about these items as we get closer to the beginning of the semester.

Please contact me with any questions you may have. If I cannot answer them, I will pass your question along to Professor Santry.


Trademark Cases are the Best!


Joe Leitsch, our Technology Support Specialist, and I are both avid iPhone users. He recently pointed me to a trademark dispute bubbling up in the iPhone App industry about the use of the phrase "pull my finger" by the owners of the iFart application, a flatulence sound producer. The issue: does use of the phrase infringe Air-O-Matic's trademark PULL MY FINGER for its own flatulence sound producing app.

Notwithstanding the silliness of the apps, the trademark dispute is a classic. iFart is claiming that it wants to use the term "pull my finger" not as a trademark, but rather in the descriptive sense of the phrase. Air-O-Matic is countering trademark infringement. Now the issue is, will consumers be confused?

Not to let the air out of Air-O-Matic's argument (sorry, had to), but Air-O-Matic's problem is that it chose a trademark that is very descriptive. I conclude this because I believe that it would be understood by most consumers to relate to the "pull my finger" flatulence related prank. Because of this, a strong argument can be made that others in the passed-gas sound producing industry have a need to use the phrase. The Lanham Trademark Act actually provides for such a defense, 15 U.S.C. § 1115(b)(4) (no infringement of a trademark where the use "is descriptive of and used fairly and in good faith only to describe the goods or services of such party.").


 Editted to add links


Clinic Update: We've Got Clients


Things at the clinic are moving along. This semester the clinic is working with the Legal Aid Society in representing Legal Aid clients in eviction cases. All of the clinic students have had matters to work on, and most of them have been to district court on a forcible detainer case.

The students have been doing a great job. Eviction cases are governed by the Uniform Residential Landlord and Tenant Act, and they have started to become experts on the ins and outs of eviction law. The basic issue we are litigating is whether the landlord will be granted a judgment of possession due to breach of the lease. Most of the breaches are based upon non-payment, but we do have other claims based on breach of other provisions, such as not disturbing the neighbors' peaceful enjoyment of the premises. We've had some successes in court, resulting in having the case dismissed. In addition, the students are also finding that many disputes can be resolved without the need of a full hearing. Often a single phone call can bring a satisfactory result for the client.  

In has been a pleasure to work with Legal Aid, particularly S. Stewart Pope. Attorney Pope is helping supervise the students and provide legal training in housing law.  We are also grateful to Judges Bisig and Eckert, as well as the housing court clerks Kathy and Tina, in welcoming us into their courtrooms. 

Business Articles of Interest


In reading the news over the last couple of days, I came across the two following interesting business articles. The first is a piece on about entrepreneurs that don't know when to pull the plug. It's a reality of being an entrepreneur: if you're not fanatical about your own business's prospects, why would anyone else want to invest in your business or buy your products? Unfortunately, the current financial difficulties (particularly inability to get credit) are likely to kill most start-ups before the principal has to make this decision.


The second is an opinion piece from the Wall Street Journal, which muses about how Ayn Rand's 1952 novel Atlas Shrugged presages many of the federal government's existing or proposed questionable "solutions" to the current economic crises. Although there are many critics of Ayn Rand's philosophy and writings, I don't think the irony of the government bailing out those businesses most responsible for their own demise and the current economic crisis is lost on many people. As I recently saw it described, capitalism on the way up, socialism on the way down.

Status of New Live Client Law Clinic


So the first week of the semester has passed, and with it the start of the law school's new live client law clinic. For those of you who have not heard, the law school has been working on getting a clinic started for a couple of years now. I am the interim director for this semester, and responsible for getting the project off the ground (with tremedous support from the staff and faculty of the law school and the Legal Aid Society - a topic for another post). With several generous grants from the Kentucky IOLTA Fund, the Louisville Bar Foundation, the Student Bar Foundation, and many alumni and friends of the law school, we have been able to rent space and buy furniture, technology and supplies. Six students are currently enrolled in the clinic. This semester we are operating the clinic as a housing law clinic, representing clients of the Legal Aid Society in forcible detainer cases in Jefferson County District Court. Attorney S. Stewart Pope of Legal Aid is working with me as an adjunct professor to supervise the students.

So how are things going? Great! I have an excellent group of eager students, fantastic support from Stewart and his colleagues at Legal Aid, and a terrific location downtown at 416 W. Muhammad Ali Boulevard. We have a few challenges, of course: We don't yet have telephone or Internet service, not all the furniture has arrived, and the temp we hired to answer the non-existent phones quit before her first day. But what else would you expect with a start up enterprise! It's full steam ahead for the clinic.