20
HEADNOTES Dallas Bar Association HEADNOTES 6 Pro Bono Lawyer of the Year 9 Global Patent Power On a Budget: Where in the World to File 11 Drafting Contracts for the Cloud 17 Ownership of Inventions Inside Focus Computer/Intellectual Property Law November 2011 Volume 36 Number 11 Focus Computer/Intellectual Property Law Patent Litigation Pilot Program Begins in the Northern District Dallas Bar Association members have a long history of community service. We don our tool belts and raise our hammers to help build Habitat for Humanity houses. We col- lect school supplies for children who oth- erwise would have none. We donate to our local blood bank, teach DISD students and host various collection drives. All are worthy causes, and all have a positive impact on the lives of others and particularly those in need. But there is one thing that Dallas Bar Asso- ciation members do that “is the best thing we do as a collective group of lawyers, and may be the most important” said Rob Crain, Co- Chair of the 2011-12 Equal Access to Justice Campaign, benefitting the Dallas Volunteer Attorney Program (DVAP). This “best thing” is pro bono legal aid to the poor. Some may question whether pro bono is the best thing we do. Pro bono clients are needy, have legal problems, and we lend a helping hand. The people who benefit from our other programs are also in great need, have problems, and, again, we lend a helping hand. The only difference is that attorneys, with their degrees, licenses, legal training and expertise, are the only people who can lend a helping hand when it comes to legal problems. They are the only people who can provide legal advice, sign a demand letter with the full force of “attorney at law” behind them, and represent clients in court. Helping people through the legal system is the sole domain of the lawyer. At the Dallas Bar Association, “the best thing we do as a collective group of lawyers” is the Dallas Volunteer Attorney Program. DVAP, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas, coordinates the pro bono efforts of Dallas lawyers by recruit- ing, training, and mentoring pro bono lawyers, hosting legal clinics for low-income people and matching needy clients with pro bono attor- neys who have volunteered to help. To support this effort, the law firm of Crain Lewis, L.L.P. has donated a very gen- erous gift of $30,000 to this year’s Equal Access to Justice Campaign. Crain Lewis, L.L.P. partners Rob Crain, a personal injury lawyer, and Chris Lewis, a criminal defense lawyer, have one mission— to help people. “The constitution provides court appointed attorneys to poor people who cannot afford to hire a criminal defense attor- ney, and most plaintiffs’ work is handled on a contingency basis,” said Mr. Crain. “People with these types of cases have avenues for hir- ing lawyers even if they cannot afford one. But when it comes to a family law case, foreclosure or consumer matter, you are out of luck if you don’t have a nest egg to pay attorney’s fees.” And that is where DVAP and the Equal Access to Justice Campaign step in. Crain Lewis’ $30,000 gift will make a difference in the lives of many clients in the coming year. Clients like John Davis. John, like many people, turned to DVAP when he needed legal help. He ended up at DVAP’s South Dallas Legal Clinic after the mother of his child died and the child’s maternal grandmother sued him for cus- tody. DVAP recruited Michael Wysocki of KoonsFuller to help. Although they were no longer a couple, John and the terminally ill mother of his child had a good relationship. The mother and child had lived with the maternal grandmother. But, when the living arrange- ment became unhealthy for both of them, John welcomed mother and child into his home. He cared for both until the mother died, and he continued to raise his two-year- old daughter on his own. Unfortunately, the grandmother had other plans. She hired an attorney and filed a custody suit asking to be the managing conservator of the child even though she did not have standing to do so. John feared the worst—that he would lose custody of his little girl. And he almost did. Mr. Wysocki represented John in family court and in the Court of Appeals. While the trial court granted the grandmother custody of the child, John and Mr. Wysocki were suc- cessful on appeal. The grandmother’s case was eventually dismissed freeing John to raise his daughter and move on with their lives. Without pro bono legal help, John likely would have lost custody of his daughter. He would have been forced to represent himself, and his daughter would have been forced to live in an environment that was not in her best interests. “John’s case is an example of the great work that volunteer attorneys do every day,” said Crain. “We have story after story of wonderful volunteers making a difference and changing the lives of their pro bono clients. DVAP’s mis- sion is Crain Lewis’ mission—to help people. We are delighted to support our fellow attor- neys in their efforts to seek justice for all.” Whether by volunteering, donating to the cause, or both, please help. For more informa- tion on the Campaign or the Dallas Volunteer Attorney Program, please contact Alicia Her- nandez at (214) 220-7499 or ahernandez@ dallasbar.org. Recognition levels and donor benefits are available. In addition, all individ- ual donors at the $1000 level and above and all firm and corporate donors at the $5,000 level and above will be recognized in an ad in the Dallas Morning News during the week of December 19, 2011, and in Texas Lawyer in January or February 2012. HN *Note – The client’s name has been changed to protect his confidentiality. Alicia Hernandez is the director of the Dallas Volunteer Attorney Pro- gram and the DBA director of community services. She can be reached at [email protected]. BY ALICIA HERNANDEZ Equal Access to Justice: Serving Others and Changing Lives $600,000+ Equal Access to Jus�ce Campaign $50,0000 $200,000 $300,000 $400,000 $500,000 $150,000 $250,000 $350,000 $450,000 $550,000 $100,000 To Give: www.dvapcampaign.org. Patent cases filed in, or transferred to, the Dallas Division of the Northern District of Texas beginning September 1, 2011, and at least through August 2012, will be randomly assigned to one of three “Patent Judges”: God- bey, Kinkeade and Lynn. This program is part of a 10-year Patent Pilot Program mandated by Congress and implemented by Special Order No. 3-287, signed by Chief Judge Fitzwater. The Program is designed to enhance expertise in patent cases among interested U.S. District Court Judges. The Northern District qualified for the Program by being among the 15 district courts with the largest number of patent cases filed in 2010. All three Patent Judges have ample experience with patent cases and requested participation in the Program. The only other district court in Texas selected for the Pro- gram is the Eastern District, already famous as a desired venue for patent cases. Keep in mind, not all patent cases in the Northern District will necessarily receive the attention of the Patent Judges. Every judge has seven days from being assigned a patent case to decline it and request the case be reassigned to the Patent Judges, one of whom will be ran- domly assigned the case. All Dallas Division judges have advised they currently intend to refer patent cases to the Patent Judges through August 2012, but each may choose to retain such cases later. Judges Means and McBryde of the Fort Worth Division presently do not intend to refer any patent cases to the Patent Judges, while Judge O’Connor of the Wichita Falls Division plans to do so. The referral practice of each district judge should be considered at the time of filing a pat- ent case. At this time, only a small percentage of patent cases are filed outside the Dallas and BY GREG CARR CONTINUED ON PAGE 7 Rob Crain and Chris Lewis

Drafting Contracts for the Cloud

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Page 1: Drafting Contracts for the Cloud

HEADNOTESDallas Bar Association

HEADNOTES

6 Pro Bono Lawyer of the Year

9 Global Patent Power On a Budget: Where in the World to File

11 Drafting Contracts for the Cloud

17 Ownership of Inventions

Inside

Focus Computer/Intellectual Property LawNovember 2011 Volume 36 Number 11

Focus Computer/Intellectual Property Law

Patent Litigation Pilot Program Begins in the Northern District

Dallas Bar Association members have a long history of community service. We don our tool belts and raise our hammers to help build Habitat for Humanity houses. We col-lect school supplies for children who oth-erwise would have none. We donate to our local blood bank, teach DISD students and host various collection drives. All are worthy causes, and all have a positive impact on the lives of others and particularly those in need.

But there is one thing that Dallas Bar Asso-ciation members do that “is the best thing we do as a collective group of lawyers, and may be the most important” said Rob Crain, Co-Chair of the 2011-12 Equal Access to Justice Campaign, benefitting the Dallas Volunteer Attorney Program (DVAP). This “best thing” is pro bono legal aid to the poor.

Some may question whether pro bono is the best thing we do. Pro bono clients are needy, have legal problems, and we lend a helping hand. The people who benefit from our other programs are also in great need, have problems, and, again, we lend a helping hand. The only difference is that attorneys, with their degrees, licenses, legal training and expertise, are the only people who can lend a helping hand when it comes to legal problems. They are the only people who can provide legal advice, sign a demand letter with the full force of “attorney at law” behind them, and represent clients in court. Helping people through the legal system is the sole domain of the lawyer.

At the Dallas Bar Association, “the best thing we do as a collective group of lawyers” is the Dallas Volunteer Attorney Program. DVAP, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas, coordinates the pro bono efforts of Dallas lawyers by recruit-ing, training, and mentoring pro bono lawyers, hosting legal clinics for low-income people and matching needy clients with pro bono attor-neys who have volunteered to help.

To support this effort, the law firm of Crain Lewis, L.L.P. has donated a very gen-

erous gift of $30,000 to this year’s Equal Access to Justice Campaign.

Crain Lewis, L.L.P. partners Rob Crain, a personal injury lawyer, and Chris Lewis, a criminal defense lawyer, have one mission—to help people. “The constitution provides court appointed attorneys to poor people who cannot afford to hire a criminal defense attor-ney, and most plaintiffs’ work is handled on a contingency basis,” said Mr. Crain. “People with these types of cases have avenues for hir-ing lawyers even if they cannot afford one. But when it comes to a family law case, foreclosure or consumer matter, you are out of luck if you don’t have a nest egg to pay attorney’s fees.”

And that is where DVAP and the Equal Access to Justice Campaign step in. Crain Lewis’ $30,000 gift will make a difference in the lives of many clients in the coming year. Clients like John Davis.

John, like many people, turned to DVAP

when he needed legal help. He ended up at DVAP’s South Dallas Legal Clinic after the mother of his child died and the child’s maternal grandmother sued him for cus-tody. DVAP recruited Michael Wysocki of KoonsFuller to help.

Although they were no longer a couple, John and the terminally ill mother of his child had a good relationship. The mother and child had lived with the maternal grandmother. But, when the living arrange-ment became unhealthy for both of them, John welcomed mother and child into his home. He cared for both until the mother died, and he continued to raise his two-year-old daughter on his own. Unfortunately, the grandmother had other plans. She hired an attorney and filed a custody suit asking to be the managing conservator of the child even though she did not have standing to do so. John feared the worst—that he would lose

custody of his little girl. And he almost did. Mr. Wysocki represented John in family

court and in the Court of Appeals. While the trial court granted the grandmother custody of the child, John and Mr. Wysocki were suc-cessful on appeal. The grandmother’s case was eventually dismissed freeing John to raise his daughter and move on with their lives.

Without pro bono legal help, John likely would have lost custody of his daughter. He would have been forced to represent himself, and his daughter would have been forced to live in an environment that was not in her best interests.

“John’s case is an example of the great work that volunteer attorneys do every day,” said Crain. “We have story after story of wonderful volunteers making a difference and changing the lives of their pro bono clients. DVAP’s mis-sion is Crain Lewis’ mission—to help people. We are delighted to support our fellow attor-neys in their efforts to seek justice for all.”

Whether by volunteering, donating to the cause, or both, please help. For more informa-tion on the Campaign or the Dallas Volunteer Attorney Program, please contact Alicia Her-nandez at (214) 220-7499 or [email protected]. Recognition levels and donor benefits are available. In addition, all individ-ual donors at the $1000 level and above and all firm and corporate donors at the $5,000 level and above will be recognized in an ad in the Dallas Morning News during the week of December 19, 2011, and in Texas Lawyer in January or February 2012. HN

*Note – The client’s name has been

changed to protect his confidentiality.

Alicia Hernandez is the director of the Dallas Volunteer Attorney Pro-gram and the DBA director of community services. She can be reached at [email protected].

By AliciA HernAndez

Equal Access to Justice: Serving Others and Changing Lives

 

$600,000+ 

Equal Access to   Jus�ce Cam

paign 

$50,0000 

$200,000 

$300,000 

$400,000 

$500,000 

$150,000

$250,000 

$350,000

$450,000

$550,000

$100,000

To Give: www.dvapcam

paign.org. 

Patent cases filed in, or transferred to, the Dallas Division of the Northern District of Texas beginning September 1, 2011, and at least through August 2012, will be randomly assigned to one of three “Patent Judges”: God-bey, Kinkeade and Lynn. This program is part of a 10-year Patent Pilot Program mandated by Congress and implemented by Special Order No. 3-287, signed by Chief Judge Fitzwater. The Program is designed to enhance expertise in patent cases among interested U.S. District Court Judges.

The Northern District qualified for the

Program by being among the 15 district courts with the largest number of patent cases filed in 2010. All three Patent Judges have ample experience with patent cases and requested participation in the Program. The only other district court in Texas selected for the Pro-gram is the Eastern District, already famous as a desired venue for patent cases.

Keep in mind, not all patent cases in the Northern District will necessarily receive the attention of the Patent Judges. Every judge has seven days from being assigned a patent case to decline it and request the case be reassigned to the Patent Judges, one of whom will be ran-domly assigned the case.

All Dallas Division judges have advised they currently intend to refer patent cases to the Patent Judges through August 2012, but each may choose to retain such cases later. Judges Means and McBryde of the Fort Worth Division presently do not intend to refer any patent cases to the Patent Judges, while Judge O’Connor of the Wichita Falls Division plans to do so.

The referral practice of each district judge should be considered at the time of filing a pat-ent case. At this time, only a small percentage of patent cases are filed outside the Dallas and

By GreG cArr

continued on PAGe 7

Rob Crain and Chris Lewis

Page 2: Drafting Contracts for the Cloud

TUESDAY, NOVEMBER 1Noon Corporate Counsel Section “Year in Review: Employment and Labor Law Wrap

Up,” Steve Rahhal and Jennifer Youpa. (MCLE 1.00)*

Government Law Section “From a Police Chief’s Perspective: The

Role and Practice of Government Lawyers in Handling Police Issues,” Garland Chief Mitch Bates, Irving Chief Larry Boyd and Dallas Chief David Brown, moderated by Jason McClain and Saul Pedregon. (MCLE 1.00)*

Tort & Insurance Practice Section “Settlement Related and End-of-Case Issues,”

Quentin Brogdon, Joel Crouch, Phil McCrury and Sally Stallcup. (Ethics 1.00)*

Morris Harrell Professionalism Committee

6:00 p.m. DAYL Board of Directors

Family Law Boot Camp. Sponsored by DVAP and J.L. Turner Legal Association. (MCLE 2.00)* To register, contact [email protected]. Questions, contact [email protected].

WEDNESDAY, NOVEMBER 2Noon Employee Benefits & Executive

Compensation Section “DOL/EBSA Dallas Region Update,” Susan A.

Hensley. (MCLE 1.00)*

Solo & Small Firm Section “The New Offer of Settlement Statute and

Court Rules: The New Procedures; Potential Pitfalls and Strategies of Framing the Offer,” Frank Gilstrap. (MCLE 1.00)*

Lawyer Referral Service Committee

Public Forum Committee

5:00 p.m. Bankruptcy & Commercial Law Section “Oil & Gas Issues in Chapter 11 – A review

of issues from In Re TXCO Resources, Inc. et al,” Bert Conly, David Lawrence and Deborah Williamson. (MCLE 1.00)*

THURSDAY, NOVEMBER 3Noon Construction/Collaborative Law Sections “Working Constructively: Using the

Collaborative Dispute Resolution Process in Construction Cases,” Lawrence Maxwell, Cynthia Tari and Anne Shuttee. (MCLE 1.00)*

Judiciary Committee Transition to Law Practice Committee

Family Law Section Board Meeting

DAYL CLE Committee

St. Thomas More Society

FRIDAY, NOVEMBER 4Noon Friday Clinic-Belo “Managing Difficult Personalities in the Legal

Workplace: Colleagues, Clients and Opposing Counsel,” Chris Jones and Mary Sanger. (Ethics 1.00)* Hosted by the Peer Assistance Committee.

International Law Section Council Meeting

3:30 p.m. DBA Annual Meeting

MONDAY, NOVEMBER 7Noon Tax Law Section “Post-Appeals Mediation with the IRS - a

Panel Presentation,” Alex McGeoch, Mark Melton, John Jankowski, Tim Weise and H. Campbell “Cam” Zachry. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, NOVEMBER 8 Business Litigation Section Topic Not Yet Available

Mergers & Acquisitions Section “Prospects, Projections and Other Crystal Ball

Matters,” Wilson Chu and Peter Flocos. (MCLE 1.00)*

Admissions & Membership Committee

Entertainment Committee

DAYL Equal Access to Justice Committee

6:00 p.m. Home Project Committee

WEDNESDAY, NOVEMBER 97:45 a.m. Dallas Area Real Estate Lawyers Discussion

Group

Noon Family Law Section Topic Not Yet Available

Legal Ethics Committee “Lateral Conflicts Illuminated,” Paul Koning.

(Ethics 1.00)*

House Committee Walk Through

DVAP New Lawyer Luncheon. For more information, contact [email protected].

DAYL Lunch & Learn. For more information, contact [email protected].

5:15 LegalLine—Volunteers welcome. Second floor Belo.

THURSDAY, NOVEMBER 1011:30 a.m. DAYL Barristers for Babies

Noon CLE Committee

E-Mentoring Committee

Publications Committee

Christian Lawyers Fellowship

Dallas Asian American Bar Association

6:00 p.m. J.L. Turner Legal Association

FRIDAY, NOVEMBER 11Noon Friday Clinic-North Dallas** “Expert Witness,” Judge Jim Jordan. (MCLE

1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to [email protected].

Trial Skills Section Topic Not Yet Available

Dallas Bar Foundation Board Meeting

MONDAY, NOVEMBER 14Noon Alternative Dispute Resolution Section “What Do Attorney’s and Their Client’s Expect

From the Mediator?” Suzanne Mann Duvall. (Ethics 1.00)*

Real Property Law Section “Legislative Update: Significant Bills of the 82nd

Texas Legislature, Regular Session Affecting Real Estate, Lending and Other Commercial Matters,” Justin Switzer. (MCLE 1.00)*

3:00 p.m. DAYL Swearing In Ceremony

TUESDAY, NOVEMBER 15Noon Antitrust and Trade Regulation Section “Antitrust Issues in Health Care,” Bill Morrison.

(MCLE 1.00)*

International Law Section “The Mysteries of Powers of Attorney in

Mexico,” Armando Cuevas Brun. (MCLE 1.00)* Community Involvement Committee

Speakers Committee

DAYL Animal Welfare Committee

DAYL Elder Law Committee

5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at [email protected] or (214) 220-7414.

WEDNESDAY, NOVEMBER 16 Energy Law Section “Taxation: Overview of Oil & Gas

Transactions,” Norman Lofgren. (MCLE 1.00)*

Health Law Section “Explosion of Tech Tools in the Health Care

Industry,” Darrell Armer and Joe Nelson. (MCLE 1.00)*

Law Day Committee

Pro Bono Activities Committee

Municipal Justice Bar Association

Non-Profit Law Study Group

5:15 LegalLine—Volunteers welcome. Second floor Belo.

THURSDAY, NOVEMBER 178:30 a.m. Justice in Education Symposium, speakers

include Mayor Mike Rawlings and more. Registration $35, includes lunch. RSVP to [email protected]

Noon Appellate Law Section “Legislative Update,” Jerry D. Bullard. (MCLE

1.00)*

Minority Participation Committee

Christian Legal Society

Dallas Gay & Lesbian Bar Association 3:30 p.m. DBA Board of Directors Meeting

FRIDAY, NOVEMBER 188:30 a.m. Juvenile Justice Committee “Child Protective Services Advanced Topics Fall

Seminar,” Speakers include judges and attorneys from the DAs office. (MCLE 5.25, Ethics 0.50)* Contact [email protected].

Noon Friday Clinic-Belo “Sentencing Issues,” Judge Jane Boyle.

(MCLE 1.00)*

Transition to Law Practice Committee “The Beginning Lawyer’s Opportunities in

and Responsibilities to the World Beyond the Office,” Justice Douglas S. Lang, Laura O’Rourke, Barry Sorrels and Tom Stutz. (MCLE 1.00)*

MONDAY, NOVEMBER 21Noon Employment Law Section “Crime & Punishment: Ethical, Criminal &

Civil Considerations in Investigating Employee Misconduct,” Tony Campiti. (Ethics 1.00)*

TUESDAY, NOVEMBER 22Noon Probate, Trusts & Estates Section “Estate Planning With Mineral Interests,”

Michael V. Bourland. (MCLE 1.00)*

American Immigration Lawyers Association

Federal Bar Association

WEDNESDAY, NOVEMBER 23No DBA Events Scheduled

THURSDAY, NOVEMBER 24DBA Offices closed in observance of Thanksgiving

FRIDAY, NOVEMBER 25DBA Offices closed

MONDAY, NOVEMBER 28Noon Securities Section “Presentation by Winner of Fall 2011 SMU

Securities Regulation Directed Research Scholarship.” (MCLE 1.00)*

Criminal Justice Committee

DAYL Solo & Small Firm Committee

TUESDAY, NOVEMBER 29Noon Legal History Discussion Group “The History of Texas Law,” Prof. Michael

Ariens. (MCLE 1.00)* Courthouse Committee

Senior Lawyer Committee

DAYL Diversity Forum

J.L. Turner Legal Association Expunction & Non-Disclosure

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, NOVEMBER 30No DBA Events Scheduled

THURSDAY, DECEMBER 17:00 a.m. DAYL Solo & Small Firm Committee

Noon Outstanding Court Staff Awards Luncheon

Family Law Section Board Meeting

DAYL CLE Committee

St. Thomas More Society of Dallas

FRIDAY, DECEMBER 28:15 a.m. Masters of Trial Seminar “Learn From the Trial Masters,” Terry

Oxford, Barry Sorrels, Paula Sweeney and Mark Werbner. Judge Emily Tobolowsky, presiding. Jury consulting services provided by Courtroom Logic Consulting. DBA members: $40; Nonmember Fee: $75. RSVP to [email protected]. (MCLE 7.00)* Sponsored by the CLE Committee.

Intellectual Property Law Section “Ethics 2011,” David Hricik. (MCLE 1.00)*

2 Headnotes l Dal las Bar Assoc ia t ion November 2011

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION.

*For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447.**For information on the location of this month’s North Dallas Friday Clinic, contact [email protected].

Calendar November Events Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY CLINICSNOVEMBER 4-BELONoon “Managing Difficult Personalities in the Legal Workplace: Colleagues, Clients and Opposing Counsel,”

Chris Jones and Mary Sanger. (Ethics 1.00)* Hosted by the Peer Assistance Committee.

NOVEMBER 11-NORTH DALLAS**Noon “Expert Witness,” Judge Jim Jordan. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson

Frwy., Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to [email protected].

NOVEMBER 18-BELONoon “Sentencing Issues,” Judge Jane Boyle. (MCLE 1.00)*

DBA MEMBER REMINDER:Your 2012 DBA DUES STATEMENT

was mailed to your preferred mailing address on October 13, 2011!

2012 DBA DUES must be paid by December 31, 2011

to continue receiving ALL your member benefits.

Thank you for your support of the Dallas Bar Association!

Page 3: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 3

www.gbfamilylaw.com
Page 4: Drafting Contracts for the Cloud

At the Dallas Bar Association, our members volunteer throughout the community in many different ways. For exam-ple, we volunteer as mentors for younger lawyers, we volunteer for Dallas Independent School District as mock trial judges, and we volunteer to build a home for Habitat for Humanity. Perhaps most importantly, we volunteer as lawyers by provid-ing free legal services to indigent members of our community.

Campaign for Equal Access to Justice/Dallas Volunteer Attorney Program

Finding a way to provide meaningful and manageable pro bono services on your own within your practice can be difficult. The Dallas Volunteer Attorney Program makes it easier. Because we have participation from so many members, we have specialized clinics offer-ing legal services in different areas of law, including family law, wills and probate, and landlord-tenant issues. We also have specialized clinics for different groups of people like veterans and men and women who are currently serving in our armed forces. When you come to volunteer, you can find a place to help in an area of law you are comfortable with. You can also define the amount of time you wish to devote to pro bono work. We are looking for attorneys who can volunteer for a task as simple as writing one letter to a job as complex as full representation of a client.

If you are interested in donating your time and providing legal services to the needy, you should contact Alicia Hernan-dez at [email protected].

The Dallas Volunteer Attorney Program is comprised of many lawyers who regularly devote their time to providing free legal services to our community. Although these volunteer lawyers do not get paid for their work, there are other expenses associated with operating the clinics. Those expenses are paid by the Campaign for Equal Access to Justice, and they allow the volunteer attorneys to provide legal services worth sub-stantially more to the community than what is raised in the Campaign. For example, if the Campaign for Equal Access to Justice raises around $500,000, then that amount will trans-late to close to $4 million in legal services performed by our volunteer attorneys.

If you are interested in donating money to the Campaign for Equal Access to Justice, please visit www.dvapcampaign.org.

These programs work hand-in-hand, and it is my hope that each of you will make an effort to contribute to one or the

other. We must have lawyers willing to contribute their time to the Dallas Volunteer Attorney Program, as well as lawyers willing to contribute their money to the Equal Access to Jus-tice Campaign for these programs to continue their success. Many of you have donated your time and money generously, and I am grateful for your generosity. To those of you who have not, I hope that you will join us in these efforts to improve the quality of life of our community by sharing competent legal representation.

I would like to thank Brad Weber, of Locke Lord LLP, and Rob Crain, of Crain Lewis, LLP, who are co-chairs of the Campaign for Equal Access to Justice for their efforts to raise the funds that support the collective and noble effort of our members to provide legal services to the poor and disenfran-chised of our community. I must also recognize Alicia Her-

nandez, the director of the Dallas Volunteer Attor-ney Program. Her expertise allows us to maximize every dollar we get from the Campaign. Thank you, Alicia.

New Member ReceptionOn November 15, 2011, at 5:30 p.m., the Dal-

las Bar Association will host our newest members and newly licensed attorneys. This is a great oppor-tunity to mix and mingle at the Dallas Bar Associa-

tion, meet a variety of our members, and learn about some of our programs and initiatives. We want to extend a hearty wel-come from the Dallas legal community to our newly licensed attorneys. In addition, this year we have extended a special invitation to the Dallas County District Attorney’s Office to join us at the reception and encourage their participation in activities at the Belo. This event is always a lot of fun, and I look forward to seeing you there.

Annual MeetingWe will host our annual meeting on November 4, 2011.

This year, it will be a privilege to watch Tim Mountz, of Baker Botts L.L.P., receive the Morris Harrell Professionalism Award. Throughout his entire career in the practice of law, and his year as president of the Dallas Bar Association, Tim has been a model of professionalism and is incredibly deserv-ing of this distinction. I encourage you to join us for this spe-cial ceremony.

Thank YouThe Dallas Volunteer Attorney Program and Campaign for

Equal Access to Justice are successful because of you. Keep up the good work. I look forward to seeing what you are going to do in the future. HN

Honoring the ProfessionBy BArry SorrelS

President's Column

4 Headnotes l Dal las Bar Assoc ia t ion November 2011

HeadnotesPublished by:

DALLAS BAR ASSOCIATION

2101 Ross AvenueDallas, Texas 75201

Phone: (214) 220-7400Fax: (214) 220-7465

Website: www.dallasbar.orgEstablished 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERSPresident: Barry SorrelsPresident-Elect: Paul K. StaffordFirst Vice President: Sally CrawfordSecond Vice President: Scott McElhaneySecretary-Treasurer: Sean HamadaImmediate Past President: Ike Vanden Eykel

Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice Chair), Kim Askew (At-Large), Penny Brobst Blackwell (President, Dallas Association of Young Lawyers), Eric Blue (President, J.L. Turner Legal Association), Hon. Rob Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Monica Latin (At-Large), Karen McCloud, Eunice Kim Nakamura (President, Dallas Asian American Bar Association), Mary Scott, Hon. Teresa Guerra Snelson (President, Dallas Hispanic Bar Association), Diane M. Sumoski; and Michele Wong Krause.

Advisory Directors: Chip Brooker (President-Elect, Dallas Association of Young Lawyers, Victor N. Corpuz (President-Elect, Dallas Asian American Bar Association), Lori Hayward (President-Elect, J.L. Turner Legal Association) and Carlos Morales (President-Elect, Dallas Hispanic Bar Association).

Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang

Directors, State Bar of Texas: Andy Payne, Christina Melton Crain, Beverly Bell Godbey, Frank E. Stevenson, II, Ike Vanden Eykel

HEADNOTESExecutive Director/Executive Editor: Catharine M. MaherCommunications / Media Director & Headnotes Editor: Jessica D. SmithIn the News: Judi SmallingArt Director: Thomas PhillipsAdvertising: Karla Howes

PUBLICATIONS COMMITTEECo-Chairs: Vincent J. Allen and Timothy G. AckermannVice-Chairs: Lea N. Clinton and Natalie L. ArbaughMembers: H. Joseph Acosta, Kevin Afghani, Nelson Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux, Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall, James Holbrook, Dyan House, Victor Johnson, Harold Jones, Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey, Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page, Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart, Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel, Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye, Sarah Woodell, Angela Zambrano and Viktoria Ziebarth

DBA & DBF STAFFExecutive Director: Catharine M. MaherAccounting Assistant: Shawna BushCommunications / Media Director: Jessica D. SmithController: Sherri EvansDirector of Community Services:Alicia HernandezEvents Coordinator: Rhonda ThorntonExecutive Assistant: Michelle DildaExecutive Director, DBF: Elizabeth PhilippLRS Program Assistant: Biridiana AvinaLRS Interviewer: Marcela MejiaLaw-Related Education & ProgramsCoordinator: Amy E. SmithMembership Coordinator: Kimberly WatsonProjects Coordinator: Kathryn ZackPublications Coordinator: Judi SmallingReceptionist/Staff Assistant: Teddi Rivas

DALLAS VOLUNTEER ATTORNEY PROGRAMDirector: Alicia HernandezManaging Attorney: Michelle AldenVolunteer Recruiter: Chris Reed-BrownParalegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina DouglasData Entry/Office Support: Patsy Quinn

Copyright Dallas Bar Association 2011. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to [email protected] (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.

All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Associationís sole discretion.

Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.

SAVE THE DATEto join us for the

Dallas Bar Association’s

Fall Fiestahonoring our

Newest DBA members & Newly Licensed Attorneys!

Tuesday, November 15, 20115:30pm to 8:00pmThe Belo Mansion

For more information or to become a Sponsor, please contact Kim Watson

[email protected] or (214) 220-7414

Page 5: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 5

What is a trade secret?Texas courts have seen an explosion

in trade secret cases in recent years. Sim-ply put, trade secrets are valuable business information that a company seeks to keep confidential. Texas courts formally define a trade secret as “any formula, pattern, device or compilation of information which is used in one’s business and pres-ents an opportunity to obtain an advan-tage over competitors who do not know or use it.” Computer Associates Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). For example, items such as cus-tomer lists, pricing information, market-ing strategies, blueprints and drawings have all been shown to be trade secrets. Unlike patents, trade secret protection continues indefinitely—so long as the information remains a secret.

To be classified as a trade secret, infor-mation must, in fact, be secret. The party seeking trade-secret status must there-fore establish a “substantial element of secrecy.” Failure to adequately protect the secrecy of information will result in

denial of trade-secret status. Texas courts look to see whether reasonable security measures were taken in deciding whether trade-secret protection is warranted.

Businesses may maintain the secrecy of their trade secrets through a variety of methods, including the use of written company policies against the dissemina-tion of confidential information. Non-disclosure agreements are also essential to companies that must disclose trade-secret information to others in the course of business.

Trade Secret MisappropriationTexas courts provide a common-law

cause of action for misappropriation of trade secrets. To establish a prima facie case of trade secret misappropriation, a plaintiff must show: (1) the existence and ownership of a trade secret; (2) breach of a confidential relationship or improper discovery of a trade secret; (3) use or dis-closure of the trade secret; and (4) dam-ages to the owner.

Texas courts use a six factor test to determine whether information quali-fies as a trade secret. These six factors include:

(1) the extent to which the informa-

tion is known outside the business;(2) the extent to which it is known

by employees and others involved in the business;

(3) the extent of measures taken by the employer to guard the secrecy of the information;

(4) the value of the information to the employer;

(5) the amount of effort or money expended by the employer in developing the information; and

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Information that is generally known and readily available in an industry will not qualify as a trade secret. Similarly, if a plaintiff fails to substantially protect the information, then trade-secret status will not be afforded.

To establish liability for a misappro-priation claim, a plaintiff must show that the trade secret was acquired through improper means (such as theft or fraud) or through the breach of a confidential rela-tionship (such as the employer-employee relationship).

A plaintiff must also show that the defendant used or disclosed the trade secret at issue and that a loss resulted from that use or disclosure. Evidence that a competitor developed a similar product may give rise to an inference of actual use.

Legal and Equitable ReliefTrade-secret misappropriation may

result in both money damages and injunc-

tive relief. A plaintiff may be entitled to a tempo-

rary injunction to prevent the further use or disclosure of its trade secrets. A tempo-rary injunction is proper if a trade-secret owner shows a probable right to recover on its cause of action, a probable injury in the interim, and that no adequate legal remedy exists.

A prevailing plaintiff in a misappro-priation suit is entitled to actual and, if warranted, exemplary damages. Actual damages can be established through sev-eral methods. First, it may include the plaintiff ’s lost profits. To recover lost prof-its, an injured party must put forth com-petent evidence to determine the amount of profits lost with reasonable certainty. Estimates of the amount of lost profits should be based on objective facts, figures or data.

If lost profits are too difficult to calcu-late, a court may instead grant the injured party a reasonable royalty. In determining a reasonable royalty award, courts attempt to measure the actual value of the trade secret that was misappropriated. In so doing, they calculate an amount that the parties would have agreed to in a theoret-ical negotiation for a license of the trade secret at issue.

Texas courts may also award exem-plary damages if there is clear and con-vincing evidence of fraud, malice or gross negligence by the defendant. HN

Michael A. McCabe is a partner with Munck Carter LLP and Jeffrey B. Chugg is an associate with the firm. They can be reached at [email protected] and [email protected], respectively.

By MicHAel A. MccABe And Jeffrey B. cHuGG

Focus Computer/Intellectual Property Law

Texas Trade Secret Litigation: The Basics

THANK YOU TO THE FOLLOWING MAJOR DONORS FOR SUPPORTING 

THE 2011 EQUAL ACCESS TO JUSTICE CAMPAIGN As of October 23, 2011

TO DONATE WWW.DVAPCAMPAIGN.ORG

Please consider a year‐end dona�on. See www.dvapcampaign.org. Dona�ons  support the good works of the Dallas Volunteer A�orney  Program (501c3). 

 Major Donors ($5,100 and up) will be recognized in each issue of Headnotes through  

January, 2012. The Campaign culminates at the Inaugural of Paul Stafford, January 21, 2012. 

Diamond Sponsors ($15,000) AT&T 

 

Chairman’s Council ($25,000) Hon. Deborah G. Hankinson Payne Mitchell Law Group 

Gold Sponsors ($5,100) Duffee & Eitzen LLP 

Exxon Mobil Hartline Dacus Barger Dreyer LLP 

Neiman Marcus SNR Denton US, LLP 

DBA Energy Law Sec�on DBA Mergers & Acquisi�ons Sec�on 

Pla�num Sponsors ($10,000) D Magazine KoonsFuller Mike McKool 

Pa�on Boggs LLP 

President’s Council ($30,000) Crain Lewis LLP 

Shoe Drive!The Community Involvement Committee is sponsoring a “Shoes for Orphan Souls” drive.

Needed items include new shoes, socks and shoelaces for children (especially leather or canvas athletic shoes).

Drop off items on the 2nd floor offices at Belo from November 15 to December 9.Questions? Contact [email protected].

https://www2.dallasbar.org/dvap/raffle.asp
www.dvapcampaign.org
Page 6: Drafting Contracts for the Cloud

6 Headnotes l Dal las Bar Assoc ia t ion November 2011

The Dallas Volunteer Attorney Program (DVAP) presented the Dal-las Office of Patton Boggs with the Pro Bono Law Firm of the Year Award at the annual awards reception on Octo-ber 26th.

Each year, DVAP, a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas, honors the lawyers, judges and other legal pro-fessionals who donate pro bono services. This year, the award for Pro Bono Law Firm of the Year was given to the Dallas Office of Patton Boggs. Patton Boggs has a long-standing commitment to the development and delivery of legal services to peo-ple of limited means not only here in Texas, but nationwide throughout all of their offices. The firm’s commit-ment to public service is grounded in the strong belief that lawyers have a profound obligation to give back to their communities. Helping lead that charge is Mike Forshey, Partner and Co-Chair of the Firm’s Pro Bono Com-mittee, who has a long history of pro bono work and despite a busy litigation docket devotes a substantial amount of his time guiding the firm’s pro bono efforts.

In 2011, the Dallas office of Pat-ton Boggs contributed over 8,000 pro bono hours, of which almost 3,000 hours were donated to DVAP clients. Firm-wide, Patton Boggs contributes over 50,000 pro bono hours annu-ally. According to Mr. Forshey, “we are honored as attorneys to help those who are less fortunate and as a firm we are true believers in the many positive aspects of community and pro bono service. We take great pride in our commitment as a firm in giving back to the community and serving those in need.”

At Patton Boggs, all attorneys are encouraged to do pro bono work and associates are required to perform at least 100 hours of pro bono legal ser-vices every year. “Our lawyers at Pat-ton Boggs want to help others, we embrace the challenges of helping those who cannot help themselves, and with that culture our attorneys are

ready to take on any challenge,” added Mr. Forshey. Pro bono matters under-taken by Patton Boggs are diverse and have included helping indigent clients with matters involving family abuse, divorces, estate matters and landlord tenant disputes, protection of civil rights, political asylum cases for people facing violence or death if they return to their home country and helping our veterans obtain needed benefits. Pat-ton Boggs also assists many worthy

charitable organi-zations and causes which assist those in need.

Patton Boggs recently secured a pro bono vic-tory for the Eliz-abeth Birt Cen-ter for Autism Law and Advo-cacy (EBCALA). An autistic child

enrolled in a Texas public school was physically and illegally restrained and placed in a secluded room. The trauma resulted in respiratory problems requir-ing medical attention. Homebound services were requested from the school district to allow the child to continue his education; however, the request was denied. After being turned down by other organizations, the family turned to EBCALA and Patton Boggs partner Jennifer Keefe for help. This hotly con-tested case, including three mediations (the final one being 11 hours), ulti-mately settled on highly confidential, but extremely favorable terms, which will allow the family to pay for private education for the child.

In addition to Patton Boggs pro bono work with DVAP, the firm is also involved in other pro bono activi-ties throughout Dallas, including Education is Freedom, Texas C-Bar, KickStart Kids, Human Rights Ini-tiative of North Texas, Texas Apple-seed, National Center for Missing and Exploited Children, The Child Abuse Prevention Center, Autism One and Catholic Charities.

DVAP congratulates Patton Boggs as the 2011 Pro Bono Firm of the Year and thanks each and every one of its attorneys for their service and com-mitment to providing these pro bono services. HN

Rob Ramage is an attorney at Anderson Tobin and prac-tices employment, commercial, and intellectual property law. He can be reached at [email protected].

Starlett “Star” Carter, a fifth-year associate at Weil, Gotshal & Manges, LLP, was named Pro Bono Lawyer of the Year at the Dallas Volunteer Attorney Program (DVAP) awards ceremony on October 26, 2011.

At Weil, Gotshal, & Manges, LLP, Ms. Carter’s practice focuses on complex corporate and trans-actional matters, especially representa-tion of private equity funds. According to co-workers at DVAP, while Ms. Carter enjoys complex legal issues in multi-billion dollar transactions, she derived a greater satisfaction from serv-ing pro bono clients and the tremendous impact that she has had on their lives.

Over a two-year period, Ms. Carter contributed more than 700 hours of pro bono work. Moreover, in 2010, Ms. Carter served as Weil’s Lend-A-Lawyer to DVAP, an innovative program created by Weil to partner with DVAP to help the needy in the Dallas community. For three-and-a half months Ms. Carter was loaned to DVAP and was fully involved in DVAP work.

While at DVAP, she worked on 22 cases, ranging from contract disputes and landlord-tenant disputes, to divorces and name changes. One particular case involved a client who was faced with evic-tion and termination of her public bene-fits. Ms. Carter worked tirelessly to learn the intricacies of the applicable Section 8 law, and then succeeded in getting the court to dismiss the eviction claim.

She did not limit her pro bono efforts to DVAP cases. In 2008, through the national organization Immigra-tion Equality, she represented a Kenyan gay-rights activist applying for asy-

lum because he faced persecution and received death threats for publicly rally-ing for equal rights of homosexuals in his home country of Kenya. Ms. Carter said she can never forget the moment that she told him that his asylum case had been granted; the client immediately burst into tears because he knew, in a way, that Ms. Carter had saved his life.

The firm Weil, Gotshal, & Manges has also benefitted from Ms. Carter’s willing-ness to serve. She is a member of her firm’s Hiring Committee, Women @ Weil Affin-ity Group and Black Affinity Group. Ms. Carter earned her J.D. from Harvard Law School, and graduated summa cum laude from University of Texas at Austin where she completed her B.B.A in three years.

Ms. Carter is a member of the Ameri-can Bar Association, the Dallas Bar Asso-ciation and J.L. Turner Legal Associa-tion. She serves as chair of J.L. Turner’s corporate counsel section, and is actively involved in DBA’s Pro Bono Activities Committee and the Elder Law Commit-tee of the Dallas Association of Young Lawyers. Ms. Carter has made use of every opportunity to promote pro bono legal services in several other ways as well. She has spoken at luncheons and various events encouraging her colleagues to take pro bono cases, and she has teamed with other attorneys new to pro bono work on cases in order to guide them through those cases. Ms. Carter has also helped staff the various DVAP neighborhood legal clin-ics. She has been involved in pro bono legal work since September 2006, when she first began her legal career at Weil.

For more information about DVAP or pro bono opportunities, visit www.dallasvolunteerattorneyprogram.org or contact Alicia Hernandez at [email protected]. HN

Lincy Thomas is an attorney for American Dream Advocacy Group. She can be reached at [email protected].

By lincy tHoMAS

Pro Bono Lawyer of the Year: Starlett Carter, Weil, Gotshal, & Manges, LLPBy roB rAMAGe

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Gump, Strauss, Hauer & Feld, L.L.P.

Pro Bono Coordinator of the Year Pamela St. John

Outstanding Clinic Attorney Volunteers

West Dallas Clinic Phillip Kingston,

Shields, Britton & Fraser, P.C.

Garland Clinic Catherine Emmanuel

South Dallas Clinic Jeff Moore

East Dallas Clinic Lauren Waite,

Haynes and Boone LLP

Pro Bono Court Reporter of the YearElizabeth Griffin

Outstanding Court PersonnelTwyla Weatherford

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Page 7: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 7

In a decision earlier this year having ramifications in numerous areas of the law in which “knowledge” must be proven, the U.S. Supreme Court applied the doctrine of willful blindness to satisfy the knowl-edge element for a claim of active induce-ment of patent infringement. Although the willful blindness doctrine has been well established in criminal law and adopted by every federal court of appeals but one, the Global-Tech Appliances deci-sion marks the first time the Court has approved the doctrine.

In a dissenting opinion, Justice Ken-nedy noted that the Court appeared to endorse the willful blindness doctrine for all federal criminal cases without receiv-ing briefing or argument on this impor-tant issue from the criminal defense bar.

Under the willful blindness standard, the plaintiff must prove (1) the defendant believed that there is a high probability that a fact exists and (2) that the defen-dant took deliberate actions to avoid learning of that fact. Using this standard, the Court defined a willfully blind defen-dant as “one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.”

In Global-Tech Appliances, Pental-pha copied one of SEB’s deep fryers that was made for sale in Hong Kong and thus lacked any U.S. patent markings. Although Pentalpha retained an attor-ney to perform a patent search based on its design, Pentalpha did not inform the attorney that that its design was a copy of SEB’s design. The attorney did not find SEB’s patent and issued an opinion that

Pentalpha’s deep fryer did not infringe on any of the patents he had found.

Pentalpha later began selling the knock-off deep fryers to Sunbeam in Hong Kong. Sunbeam then imported and sold the fryers in the United States, and SEB sued Sunbeam for patent infringement. After settling with Sunbeam for its own infringement, SEB then sued Pentalpha for a separate act of patent infringement: infringing its U.S. patent by actively inducing Sunbeam and other purchas-ers of Pentalpha fryers to sell them in the U.S. in violation of SEB’s patent rights.

Pentalpha argued that it had no knowledge of the patent and, thus, SEB could not prove the knowledge required to show Pentalpha had actively induced infringement of the patent. The Federal Circuit held that the knowledge element was satisfied because of Pentalpha’s delib-erate indifference to a known risk that a patent existed covering SEB’s fryer.

The Supreme Court rejected the lower court’s deliberate indifference standard because it does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities. The Court also criticized that standard because it permits the finding of knowl-edge where there is merely a “known risk” that the induced acts are infringing.

Instead, the Court applied a willful blindness standard to affirm the holding of the Federal Circuit that Pentalpha had actively induced Sunbeam to infringe the patent. In reaching its decision, the Court found it significant that Pentalpha knew of SEB’s superior product and knew that SEB’s fryer embodied advanced technol-ogy that would be valuable in the U.S. market. The Court also pointed out that

Pentalpha decided to copy an overseas model, knowing that products made for overseas markets usually do not bear U.S. patent markings. Even more significant, according to the Court, was Pentalpha’s decision not to inform its patent attor-ney that the Pentalpha fryer was a copy of SEB’s fryer.

The Court could not fathom that Pen-talpha had any other motive for withhold-ing this information “other than to manu-facture a claim of plausible deniability in the event that his company would later be accused of patent infringement.” Thus, the Court held that the evidence was more than sufficient for the jury to decide that Pentalpha subjectively believed that there was a high probability that SEB’s fryer was patented, that Pentalpha took deliberate steps to avoid knowing that fact, and therefore, Pentalpha had will-

fully blinded itself to the infringing nature of Sunbeam’s sales.

Although the willful blindness stan-dard adopted by the Court is more restric-tive than the Federal Circuit’s deliberate indifference standard, it is still not nec-essary to prove that the alleged infringer had actual knowledge that the product was covered by a patent.

The Court’s approval of the willful blindness standard as an alternative to proving actual knowledge could have wide reaching consequences, even outside the context of patent infringement. The deci-sion has already been cited in criminal cases, bankruptcy cases and in cases involv-ing the False Claims Act. HN

Vincent J. Allen is a partner at Carstens & Cahoon where he focus-es on intellectual property law. He is a co-chair of the Publications Committee and may be reached at [email protected].

By Vincent J. Allen

Focus Computer/Intellectual Property Law

Willful Blindness: The New Standard for Knowledge

Maslanka’s Field Guide to the Americans with Disabilities Act and its Amendments

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Fort Worth Divisions. In complex patent litigation, differ-

ent judges often address seemingly simi-lar issues disparately depending on the court’s judicial philosophy, case man-agement requirements, practice and the like. During a Dallas Bar Association panel discussion on July 26, 2011, Pat-ent Judges Godbey, Kinkeade and Lynn expressed a desire for more uniformity and predictability in their assigned pat-ent cases.

To this end, the following guidance was also provided by the Northern Dis-trict Patent Judges:

Case Management Conferences (CMCs): In view of fairly specific local rules applying to patent cases in the Dallas Division (Misc. Order No. 62), CMCs will not typically be required in patent cases.

Conference Requirements: Unlike the Eastern District of Texas, the North-ern District has no special conference requirement that must be met before filing a discovery motion. Parties must, however, follow pre-motion conference requirements, which call for more than leaving a phone message for opposing counsel.

Local Patent Rules: In many respects, the local rules of the Dallas Division for patent cases are similar to local rules of the Northern District of California and Eastern District of Texas. While the Patent Judges may consider how such courts interpret rules cover-ing similar issues and circumstances, the Patent Judges are not bound to follow those interpretations.

Markman Hearings: The court will admit live testimony on a case-by-case basis in Markman hearings, where the

parties seek to persuade the court of the proper meaning to be given patent ter-minology (akin to judicial contract con-struction).

Scheduling: Patent case trial settings will be firmly followed. Criminal cases, which must take precedence, will be coordinated and reassigned amongst the Patent Judges, to avoid delay of patent cases. Schedules in patent cases, such as time to trial and trial length, will be set with input from counsel. Proposals from counsel to streamline the case, such as early Markman hearings, mediation and motions for summary judgment, will be welcomed.

Stays for Patent Office Proceedings: If a patent-in-suit is being reexamined by the Patent and Trademark Office to determine whether it was validly issued, the Patent Judges are likely to grant a stay of the patent case for the first reexamina-tion. However, such stays will be much less likely for subsequent reexaminations.

Technical Advisors: Technical advi-sors may be appointed to privately advise the court about technology, particularly when the meaning of patent terms is construed by the court. Technical advi-sors will be used on a case-by-case basis and, in any event, more frequently than special masters.

Transfers from Other Districts: Whether the Dallas Division will be assigned all patent cases transferred to the Northern District is unknown.

Like a technologist, the Federal Judi-cial Center will evaluate the Program empirically: by comparing the reversal rate of Program Patent Judges to that of other judges in patent cases. HN

Greg Carr, a partner at Carr LLP, is an intellectual property lawyer who handles patent litigation, licensing and procure-ment. He can be reached at [email protected].

continued froM PAGe 1

Patent Litigation Pilot Program Begins

PLEASE BRING AN UNWRAPPED TOY TO BE DONATED TO CHARITY.

Questions? Contact Rhonda Thornton at [email protected] or 214-220-7403.

DBA Family Holiday Party

~ Monday, December 12 ~ 6 to 8 p.m. at the Belo Mansion

Enjoy pictures with Santa,

face-painting, tap-dancing, toy trains and more!

www.texaslawyerbooks.com
Page 8: Drafting Contracts for the Cloud

8 Headnotes l Dal las Bar Assoc ia t ion November 2011

If your office accepts credit card payments, you should have received information from your merchant pro-vider regarding the recent updates to PCI-DSS (Payment Card Indus-try Data Security Standard) compli-ance requirements. When you accept credit card payments, you also accept the responsibility of protecting card-holder information. As of July 1, 2010, any firm accepting credit cards was required to comply with the PCI secu-rity standards.*

In addition to the requirements, if you have not become compliant, most major processors have implemented non-compliance fees. It may be helpful to review a recent merchant statement

for those charges which typically range from $15-$25 per month. To avoid non-compliance fees, you will need to take steps to become PCI-Compliant.

You may have received calls regard-ing non-compliance fees or entice-ments to switch to other processors; however, use caution as these calls may just be ambush marketing techniques. Please check with your acquiring bank for specific deadlines and fees.

What is PCI?In 2006, the major credit card

brands (Visa, Mastercard, Discover, American Express and JCB) formed a security council. The goal of the Secu-rity Council was to ensure the safe

handling of cardholder data at all times and reduce credit card fraud by devel-oping a standardized set of regulations for the entire credit card processing industry. The resulting Payment Card Industry Data Security Standard, Pay-ment Application Data Security Stan-dard and the PIN Transaction Security Standard work together to achieve that goal.

Payment Card Industry Data Secu-rity Standards are focused on protect-ing credit card information at the merchant level by implementing basic procedures to protect card holder data. The new regulations will make protect-ing sensitive card information a prior-ity, thus reducing identity theft and credit card fraud.

Regardless of how many transac-tions you accept or process, PCI is an important step in protecting the secu-rity of merchant account. To ensure credit card transactions are secure through every step of the payment pro-cess, all parties in the payment indus-try are now required to be PCI Com-pliant.

You Still Need to do Your Part!PCI Compliance is composed of two

areas, how credit cards are processed through our systems and how you han-dle credit card information within the walls of your office.

The security of your office is para-mount for compliance. For example, do you store paper copies of credit card data in a secure way? Do you use a pay-ment gateway or a terminal to process credit cards? These are practical secu-rity points addressed by the PCI-DSS and apply to any business that pro-cesses, stores, or transmits credit card data (www.pcisecuritystandards.org). Until recently, most of the focus has been on major retailers that process

in excess of 6 million Visa transac-tions per year. All merchants, regard-less of credit card processing volume, must now comply with the regulations. Failure to meet requirements can result in security breaches, costly fines, and forensic audits.

Credit Card Compliance for Attorneys

To help you through the PCI Com-pliance process, AffiniPay created a compliance program with all the tools you will need to meet that deadline. We understand the unique needs of businesses and wanted to make the compliance process as easy and pain-less for you as possible. Our program not only includes the Self Assessment Questionnaire, but also features unlim-ited support from PCI experts and a Security Policy Builder. You can get more information about the program or get started today by visiting www.pci-central.com. For specific compliance questions, you may also contact Amy Airhart by emailing [email protected] or by calling (866) 376-0947.

About AffiniPay/ LawPayThe LawPay Merchant Account,

credit card processing for attorneys, is a custom payment solution designed by AffiniPay. The LawPay Merchant Account complies with ABA and state requirements for managing client funds.

As a member benefit of Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor with the Law-Pay Merchant Account.

*Check with your merchant bank for deadlines and fees HN

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DBA Annual MeetingThe Annual Meeting is Friday, November 4 in the Pavilion.

A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m.

If you wish to run for a position, you must contact Cathy Maher [email protected] (214) 220-7401, no later than Thursday, November 3

at 5:00 p.m. to receive information about service on the Board. You are required to complete a biographical form prior to the meeting.

Following the meeting all DBA resident members with an e-mail address on file will receive an online ballot. If you wish to vote online, please make sure the DBA has your e-mail address by visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before 5 p.m. on Thursday, November 3, 2011.

Please update your spam software to allow the e-mail ballot to enter your inbox from [email protected].

If you receive an online ballot but wish to vote by hard copy, please contact Cathy Maher at (214) 220-7401 to request that a paper ballot be mailed to you. Only those resident members without an e-mail address on file

with the DBA will be mailed a hardy copy of the ballot.

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Page 9: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 9

The reality of a global marketplace is expanding and international patent protection is becoming an increasingly important part of a company’s overall business strategy. Unfortunately, no sin-gle global patent presently exists. Patents remain territorial and must be secured in each country. Yet only the wealthiest companies can afford an each-and-every-country filing strategy. Consider that fil-ing a simple, 15-page application in 140 countries is estimated to cost more than $1.3 million. As a result, most compa-nies need a tailored international patent strategy to obtain sufficient global patent power on a budget. Developing such a strategy involves both business and legal considerations.

In developing an international pat-ent strategy, companies should consider three central business considerations: (1) the company’s business model, (2) busi-ness goals, and (3) budgetary constraints. The business model outlines the products, manufacturing sites, and locus of sales activities. At a minimum, most companies consider filing in countries where sales and manufacturing occur. The company’s goals for its patent portfolio—whether for defense, offense, or to support alliances—impacts the strategy as well. The location of any competitors should also be consid-ered. Finally, the company’s budget in the near term and over the coming years is an obvious limiting factor to be considered.

As these factors are considered, most companies use tactics to delay expenses and decisions as long as possible. Addi-tional time allows a company to assess more accurately the technology from a

business and legal perspective. A number of tools are used to delay expenses and decisions. The two most notable are the Paris Convention and the Patent Coop-eration Treaty (PCT). The Paris Conven-tion allows patent applicants to delay up to a year after filing an original applica-tion before filing counterpart applications in member countries. On the other hand, the PCT allows companies to delay coun-try-by-country filings further by filing a single placeholder application that may be used in any of the 144 member juris-dictions in due course. The PCT receiv-ing office also conducts a patent search. The search results help companies assess the merits of the invention before taking the application to specific patent offices around the world.

After delaying as long as possible, companies make their final decisions and enter patent prosecution in selected juris-dictions—countries or regions such as the European Patent Office (EPO). The expense and effort required in each loca-tion are factors in arriving at the final list of jurisdictions. Attempts over the last 40 years to harmonize patent laws have made patent prosecution more uniform worldwide. Harmonization was one force behind the Leahy-Smith America Invents Act that passed earlier this year.

In addition, efforts around the world continue to make the processes more effi-cient. For example, the recent London Agreement under European practice has eliminated the need to translate English applications into other languages before validating a European Patent in many non-English-speaking countries. Euro-pean patent attorney Tim Ashton, of Forresters in the UK, believes this is one of the most important developments: “I

think the London Agreement is the most important change on a cost point of view that we have had in the European Patent system since its conception.”

In addition to upfront considerations, companies must also consider enforce-ment. While patent protection in a par-ticular country may sound desirable for business reasons, the challenges related to enforcing the patent may render the pat-ent meaningless. The added expense of needing U.S. and foreign counsel, trans-lation fees, and travel can make foreign patent litigation extremely expensive. Moreover, some countries simply do not have a legal system capable of enforcing patent rights. A number of related non-legal factors should also be considered. For example, the stability of the govern-ment and whether the country has a his-tory of bias, corruption, or unfairness are relevant considerations.

All these factors make a one-size-fits-all strategy all but impossible. Accord-ingly, different companies develop differ-ent strategies even when in similar situ-ations. In practice, some companies opt for a simple approach of filing in the U.S. and the “BRIC” countries (Brazil, Rus-sia, India and China). Others carefully consider each invention in view of the previously-presented factors and custom

tailor a strategy for the invention. Some companies develop several standard strat-egies, e.g., Tier 1, Tier 2, and Tier 3, and embrace one of the strategies based on the perceived importance of the inven-tion. Some companies—typically start-up companies—simply mimic the filing patterns of established competitors. Still others focus on only controlling a few key jurisdictions, such as home country, main competitor’s country, and the two largest market countries. In this regard, a recent survey of U.S. companies resulted in the following ranking of jurisdictions as most important to an international IP strategy: Europe, China, Japan, India, Korea, Brazil and Russia.

Meaningful global patent protection can be obtained on a limited budget. The business and legal considerations must be considered in view of the various tools available. While there is no one-size-fits-all approach, an effective strategy can be carefully tailored to meet the company’s objectives. HN

Bob Johnston is a registered patent attorney with over 18 years’ experience handling intellectual property matters. He can be reached at [email protected]. Megan Oursler is a registered patent attorney who has studied patent law abroad. She can be reached at [email protected]. Both practice with SNR Denton US LLP.

By roBert H. JoHnSton iii And MeGAn ourSler

Focus Computer/Intellectual Property Law

Global Patent Power On a Budget: Where in the World to File

“Managing Difficult Personalities in the Legal Workplace:Colleagues, Clients and Opposing Counsel”

Ethics 1.00November 4, 2011, Noon, at Belo

Speakers includes: Chris Jones and Mary SangerHosted by the Peer Assistance Committee

www.wisby-smith.com
Page 10: Drafting Contracts for the Cloud

10 Headnotes l Dal las Bar Assoc ia t ion November 2011

Judge Jim Jordan has a unique perspec-tive from the bench. He has presided over cases in Dallas County in three different decades and has seen much change.

His judicial career began in 1986 when he was appointed to the bench by Gover-nor Mark White as the Presiding Judge of the 44th District Court, but as the tides changed he left the bench and returned to private practice. Although Judge Jordan hoped to one day return to the bench, it was not until 2006 that he ran for, and was elected, judge of the 160th District Court, where he sits today.

With 20 years between two different stretches as a Dallas County civil district judge, Judge Jordan has overseen cases both before and after the Internet revo-lution. Judge Jordan recalls seeing maybe one cell phone in his courtroom in the 1980s, and it was about six inches tall and stood upright on the counsel table. During Judge Jordan’s absence from the bench, the legal profession saw the effects of dra-matic technological advances. Among Judge Jordan’s favorite changes since his first time on the bench is the evolution of electronic research and the ready access to information that it provides both judges and litigants. Judge Jordan has also seen a great increase in the volume and length of filings since the ‘80s.

Reflecting on one of the changes since

his first time on the bench, Judge Jordan is concerned over the dramatic increase in the number of self-represented litigants. He attributes this trend to the growing cost of litigation and to the accessibility of infor-mation on the Internet, which persuades the litigants to think they can represent themselves. He says, however, that gener-ally self-represented litigants are unfamil-iar with the rules of procedure and tend to struggle in the courtroom. The judge encourages these litigants to seek counsel, but he also says that the system will have to learn to adapt to this trend.

Judge Jordan graduated from South Garland High School where he was active in the marching band. He then graduated from Aus-tin College in 1974 and Texas Tech School of Law in 1977. Judge Jordan has been active in scouting since he was young. He is an Eagle Scout, worked summers as a scout camp counselor, and became a Vigil Honor member of the Order of the Arrow.

Judge Jordan has practiced law in the Dallas area throughout his career begin-ning in a small office in the Katy Building across the street from the Dallas County Courthouse. Since then, Judge Jordan

formed partnerships with several Dallas attorneys. He was a partner with the firms of Riddle & Brown (later Middleberg, Rid-dle and Gianna) and Shannon, Gracey, Ratliff & Miller, LLP. He also worked as an Assistant City Attorney for the City of Garland. While practicing, Judge Jor-dan taught trial skills courses at Southern Methodist University and Louisiana State University law schools and trial skills and

deposition courses for the National Insti-tute of Trial Advocacy. While on the bench he has taught legal studies courses at Paul Quinn College.

Judge Jordan has maintained a com-mitment to community and public service both on and off the bench. His service over the years has included membership

in the American Board of Trial Advo-cates, the William “Mac” Taylor Ameri-can Inn of Court, the State Bar of Texas Judicial Ethics Committee, acting as Local Administrative District Judge, Presiding Judge of Civil District Courts and serv-ing as President of the Garland Bar Asso-ciation. In addition, he is a Fellow of the American Bar Foundation and a Life Fel-low of the Dallas Bar Foundation and of the Texas Bar Foundation. Judge Jordan is an active member in the Dallas Bar Asso-ciation, a past recipient of the Jo Anna Moreland Outstanding Committee Chair Award and a past recipient of the Judicial Pro Bono Service Award.

It was his passion for public service and his belief in the rule of law that caused Judge Jordan to want to be a lawyer in the first place. Judge Jordan says that he feels being a judge is the best way for him to fulfill his passion for public service. He says the desire to uphold the integrity of the judiciary and to protect the rule of law drives him as a judge.

Judge Jordan and his wife, Roberta, have two grown children, Natalie, a gradu-ate of the University of Texas Radio-Tele-vision-Film program and their son Austin, a graduate of the University of Southern California. HN

Ryan T. Cosgrove is a commercial litigation attorney with Akin Gump Strauss Hauer & Feld LLP, and a member of the DBA Publications Committee. He can be reached at [email protected].

By ryAn t. coSGroVe

Judicial Profile: Hon. Jim Jordan

Critique/Score High School Mock Trial Competitions

Help judge the Texas High School Mock Trial Competitions in January, February and March 2012!

A variety of dates are available. Teams are from DISD, Region 10 and across the State.

Earn self-study CLE credit.

Sign-up online at www.dallasbar.org/mocktrial or contact [email protected].

“The desire to uphold the integrity of the judiciary drives him as a judge.”

Sustaining Membersof the Dallas Bar Association

The DBA sincerely appreciates the support of its Sustaining Members whose financial contributions enhance the

preservation of the historic Belo Mansion.

David Carlock,of Carlock-Gormley-Hight

Hon. Tom James

Sawnie A. McEntire,of Beirne, Maynard & Parsons, L.L.P.

Mike McKool Jr.,of McKool Smith P.C.

Tahira Khan Merrittof Tahira Khan Merritt PLLC

Nancy Arnole Nasher,of NorthPark Development Company

Michael L. Riddle,of Middleberg, Riddle & Gianna

Scott R. Seideman,of The Seideman Law Firm

Peter S. Vogel,of Gardere Wynne Sewell LLP

Hon. Jim Jordan

www.thecolliefirm.com
www.turleyproperties.com
Page 11: Drafting Contracts for the Cloud

As more companies adopt cloud computing services, corporate and out-side counsel are being asked to review cloud agreements. The unique business, legal and regulatory risks associated with cloud computing arise from the fact that customer data is stored and processed by the cloud vendor. This article highlights these risks and describes recommended methods for risk balancing between the parties.

Business RisksData Risk: Data security is a primary

concern for parties to cloud computing agreements. Each party endeavors to place data security risk on the other. In our experience the risk is best balanced by putting data security liability on the vendor, then transferring that risk to a professional liability carrier. By structur-ing the limitations of liability, indem-nity and insurance provisions properly, both sides can reduce the risks associ-ated with data security and privacy.

Service Interruption: The next significant business risk is the access and availability of the service and the impact to the business if the service is unavailable for any reason. Access and availability commitments are typically contained in a Service Level Agreement (SLA) that is part of many cloud com-puting contracts. The best SLA’s contain custom service metrics narrowly tailored to the customer’s business requirements.

Many times the cloud solution may be comprised of two or more third-party platforms. So customers should ensure that the SLA addresses subcontractor

liability for third party service failures. Also, the SLA should define service fail-ure remedies and action plans for resolu-tion of service interruptions.

Termination of the Agreement: Because the data is controlled by the cloud vendor, cloud computing agree-ments should contain an effect of ter-mination clause that sets out a process for returning customer-owned data to the customer post-engagement. It should also specify the circumstances under which the provider can withhold services or preclude the customer for accessing the service.

Legal RisksIntellectual Property Ownership:

In cloud contracts, data provided by the customer is generally understood to be owned by the customer. It is not neces-sarily obvious, however, who owns intel-lectual property that is not customer data. For instance, it is common for a vendor to customize its service offering to meet a customer requirement. The agreement should specify whether addi-tional code written by the vendor to customize its solution for a customer is the property of the vendor or considered a “work for hire” owned by the customer. If the vendor will own the customiza-tions, the customer may ask for exclu-sive use of the customizations through-out the term of the agreement.

Litigation and Discovery: The cus-tomer must have access to its data in the event of litigation. Cloud agreements should define policies for data retention and procedures for discovery production that provide the customer with signifi-cant control. In addition, data retention

in the cloud should match the custom-er’s internal retention policies.

Regulatory IssuesCompliance with industry and regu-

latory requirements is one of the most vexing issues facing a customer contem-plating cloud services. From HIPAA/HITECH to PCI, FTC Red Flags Rules to state security and privacy statutes, many companies are required to com-ply with one or more data privacy and security regulations. In many cases, the cloud vendor is subject to the same data security regulatory requirements as its customers.

Whether and to what extent a ven-dor or customer is a covered entity under privacy and data security regulation is something both parties must evalu-ate separately. Much to the chagrin of cloud vendors, attempts to specifically reject responsibility for compliance with applicable regulatory requirements are prohibited by some of the more recent

privacy and security statutes. Where a regulation is particularly important to the customer or vendor, contract lan-guage should track the applicable statu-tory language. In other cases, a provision requiring both parties to comply with applicable laws and regulations related to the services may be sufficient.

ConclusionThe two important steps to take

before entering into any cloud comput-ing agreement is to identify the risks described above to determine your cli-ent’s comfort level with respect to each and begin the discussion of risk balanc-ing early in the negotiation. Lengthy, unsuccessful negotiations can be avoided if each side is clear as to their “deal-breakers” with respect to these risks upfront. HN

Rob Scott, the managing partner of Scott & Scott, LLP, handles intellectual property and technology matters. He can be reached at [email protected].

November 2011 Dal las Bar Assoc ia t ion l Headnotes 11

DBA Justice in Education SymposiumThursday, November 17~ 8:30 a.m. to 1:00 p.m. ~ Belo Mansion

The Jack Lowe Sr. Award for Community Leadershipwill be presented during the luncheon.

Keynote speaker: Mayor Mike Rawlings

Registration $35, includes lunch.Contact Alicia Hernandez at (214) 220-7499 or

[email protected]

By roB Scott

Focus

Drafting Contracts for the CloudComputer/Intellectual Property Law

Mediator H Arbitrator H Special Judge

H 4,000+ Cases MediatedH Full-Time Mediator for 21 YearsH 90%+ Settlement RateH 35 Years of Judicial ExperienceH Justice Retired, 5th Court of Appeals of TexasH Member - National Academy of Distinguished NeutralsH Member - The Association of Attorney MediatorsH Distinguished Mediator - Texas Mediator Credentialing AssociationH Panel - FINRA Dispute ResolutionH Panel - CPR: International Institute for Conflict Prevention & Resolution

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Page 12: Drafting Contracts for the Cloud

12 Headnotes l Dal las Bar Assoc ia t ion November 2011

THANK YOU TO POINT MULTIMEDIA

For providing all the AV support at Bench Bar.

We appreciate you!

Point Multimedia: (214) 247-2000www.pointmultimedia.com

Graphic Development, Courtroom Operation, Video Depositions

D B A B e n c h B a r C o n f e r e n c eAt Horseshoe Bay

Page 13: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 13

DVAP’s FinestRhonda Hunter

Rhonda Hunter is a distinguished family law attorney, operat-ing a solo practice. Throughout her career, Rhonda has been dedi-cated to pro bono service. She is Board Certified in Family Law and finds time to dedicate considerable hours to DVAP, where she has been a regular volunteer for many years, handling divorce and custody cases. Rhonda also took on the task of mentoring other pro bono attorneys when DVAP launched the Conflict Panel in 1999. She continues to serve as Conflict Panel Attorney Mentor on conflict of interest matters and ad litem cases, and lends her

family law expertise to DVAP training opportunities, such as the annual Family Law Nuts & Bolts seminars. Thank you for all that you do, Rhonda!

Pro Bono: It’s Like Billable Hours for Your Soul.To volunteer or make a donation, call 214/748-1234, x2243.

Licensed in 1939Lawrence W. AndersonE. Leroy HallmanBernard Hirsh

Licensed in 1940Bardwell D. Odum

Licensed in 1941Royal H. Brin Jr.Robert S. Strauss

Licensed in 1942William F. Alexander Claude D. Bell Jr.Frank Ripy McWhorter Charles O. Shields

Licensed in 1943Lester A. Levy Sr.

Licensed in 1945Jeannette Williams Sadler

Licensed in 1946James R. AlexanderW. Richard Bernays Frank G. Newman Robert E. Rain Jr.Jean L. White

Licensed in 1947James G. Blanchette Jr.Gordon R. Carpenter Joseph W. GearyGeorge Hopkins George Garrison PottsJohn F. Wilson

Licensed in 1948George Ashley Thomas T. Barnhouse Clarence Bentley Lamar CarnesH. Gene EmeryFlorence K. Fletcher Lionel E. GillyPaul Harkey Billy B. JoinerC. Sidney McClainJoel T. Williams Jr.

Licensed in 1949Jack E. Brady John W. Collins Jr.Edward J. Drake William N. Hamilton Harold L. Hitchins William L. Keller Cecil G. Magee

John McCormack B. Thomas McElroy E. Donald McNees Gordon H. Montgomery Hon. Ted Z. Robertson

Licensed in 1950George C. Anson Albert L. Bartley Jr.Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. GarnerHenry Gilchrist Wayne Hancock William C. Herndon H. Louis Morrison Jr.William C. Odeneal A.W. Patterson Jr.Ralph W. Pulley Jr.F.W. Reese Paul Thorp Eldon R. Vaughan Robert G. VialCharles J. Winikates Sr.

Licensed in 1951L.A. Bedford Jr.Ramsey ClarkM. Wayne Cummings H. Sam Davis Jr.James E. Day Jr.William C. Dowdy Jr.Zack E. Mason Joseph W. McKnightHarold Arnold Pollman John L. RoachHon. Thomas B. Thorpe H.E. Walker Jr.J. Ralph Wood Jr.

Licensed in 1952John R. Anthony Jr.Robert F. Ashley Prof. Alan R. Bromberg John H. ChilesJames E. Coleman Jr.Hon. Harry T. Holland Vester T. Hughes Jr.Jerry N. Jordan Graham R.E. Koch Wayne A. Melton Joseph M. Stuhl Harry P. Stuth Jr.William (Bill) H. Tinsley James A. Williams Richard S. Woods

Licensed in 1953Donald C. Alexander

Joe Don Denton Thomas L. Fiedler Roy W. Howell Jr.James A. Knox Hon. James W. MastWilliam R. McGarvey

Licensed in 1954Norma Lea Beasley Frederick H. Benners Cooper Blankenship Paul M. Brewer Hon. Joe B. Brown Hon. Ben F. Ellis Robert A. Gwinn Charles W. Hall John M. Hamilton Harold F. Kleinman J. Redwine Patterson Benjamin E. Pickering Robert E. Price Allen P. SchoolfieldMaxel (Bud) Silverberg James C. Tubb John R. Wright

Licensed in 1955Winston L. Adkins Ted M. Akin John C. Biggers Dennis G. Brewer Sr.Charles D. Cabaniss Eugenio Cazorla Thomas N. Griffith Jess T. Hay Lawrence P. Hochberg Jack Pew Jr.Anthony G. Riddlesperger Forrest Smith Robb StewartLee D. Vendig

Licensed in 1956Benjamin R. Collier John L. Estes Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French Jr.Roger A. Hansen Frank S. La Barba Jr.Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price Jr.Frank Tupper Smith Jr.Sidney Stahl Claude R. Wilson Jr.Gerry N. Wren

Licensed in 1957Barton E. Bernstein William F. Bowles Don T. Cates Frank W. Elliott Jerry C. Gilmore

V. Rock Grundman Ivan Irwin Jr.Tom JamesWilliam C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Morton A. Rudberg Merlyn D. Sampels J. Richard SandersonClay C. Scott Jr.Carl A. Skibell Jason B. Sowell Jr.Hon. Milton Sturman Robert H. Thomas Louis J. Weber Jr.

Licensed in 1958Burt Berry Walton P. Bondies Jr.R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis F. Lynn Estep Jr.Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr.Bill C. Hunter Jerry Lastelick John T. McCully John H. McElhaney Robert H. PowerWilliam T. Satterwhite Harry R. Shawver Jr.Dan W. Stansbury Jack R. Wahlquist Emory L. White Jr.Barney T. Young Norman A. Zable

Licensed in 1959Webber W. Beall Jr.Tom A. Blakeley Jr.Allen Butler Durwood D. Crawford Marshall J. Doke Jr.Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley IIILarry L. Gollaher James J. Hartnett Jack W. Hawkins Norman P. Hines Jr.James H. (Blackie) Holmes IIIHerbert L. Hooks Ray Hutchison Jerry P. Jones Richard A. Lempert George R. Milner George David Neal Donald F. Padgett

Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Robert C. Taylor Licensed in 1960E. Karl Anderson Anthony Atwell Paul E. Ave Lester V. Baum P. Oswin Chrisman Edward A. Copley David S. Curtis Alan D. Feld Paul L. Fourt Lawrence W. Jackson John L. Lancaster IIIJoe H. Loving Jr.Hon. Robert B. Maloney Tom D. Matthews Jr.Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers IIIRobert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray Jr.Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings Jr.Donald A. Swanson Jr.Arthur I. Ungerman William D. White Jr.

Licensed in 1961Arch A. Beasley Jr.John F. Boyle Jr.William T. Burke Jr.Adelfa B. Callejo Roy C. Coffee Jr.Jim E. Cowles Adair Dyer Jr.Albert B. Fenton John A. GilliamDavid G. Glickman Jay Rodney KlineLarry M. Lesh Warren C. Lyon Clark J. Matthews IIDonald C. McLeaishStan McMurryJohn W. PaynePaul W. PhyVirgil E. RogersJames T. RuddMiles L. SchulzeWade C. SmithPaul B. UnderkoflerFred D. WardChristopher M. WeilBen B. WestFletcher L. Yarbrough

EmEritus mEmbErsThe Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the Annual Meeting on Friday, November 4, 2011 at 3:30 p.m. to be recognized. To RSVP, contact Michelle Dilda at (214) 220-7474 or [email protected].

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Page 14: Drafting Contracts for the Cloud

14 Headnotes l Dal las Bar Assoc ia t ion November 2011

Whether you are a young attorney or a seasoned practitioner, depositions can be a stressful process. Many new attorneys are not well trained in how to take or defend a deposition and find themselves ill equipped in dealing with surprises. Some basic strategies can help any lawyer make the most out of any deposition.

Find Your Style. Benjamin Franklin once said that a “spoonful of honey will catch more flies than a gallon of vin-egar.” Despite this simple truth, some attorneys treat the opposing party as

their adversary at deposition. While this style may prove effective for some, acting in an overly assertive manner can remind a witness that you are the bad guy. The witness will not relax and will likely remember the advice they received in deposition preparation. By being nice, you can make an intimidat-ing situation more bearable for the wit-ness. When a witness is more relaxed, they may be less defensive and you may be more likely to get the answers that you need.

However, the nice guy approach does not work for everyone. Some attorneys are more comfortable taking a serious

approach when conducting depositions. Finding a deposition style that works for you, based upon your personality, can help you be more effective in deposi-tion. When you are more comfortable, you are more likely to stay focused on the task at hand.

Be Professional. Douglas MacAr-thur said that “you are remembered for the rules you break.” In the legal profes-sion, however, a reputation takes a long time to build. You do not want to be known as the deposition troublemaker.

Read the rules before your next deposition. Both the Texas and federal rules of civil procedure prohibit speak-ing objections. Speaking objections are often deemed coaching. Examples include: asked and answered; objection, you can answer, if you know; calls for a legal conclusion; calls for a narrative; and misstates prior testimony. These objections remind the witness to con-sider earlier testimony and to answer based on their attorney’s suggestion.

Despite the fact that speaking objec-tions are not allowed, some attorneys continue to make them. If you find yourself on the receiving end of these objections, briefly note your disapproval on the record. Unfortunately, it is dif-ficult to get relief unless the conduct greatly interferes with the deposition. If you encounter a repeat offender, notice your depositions for video whenever possible. An aggressive attorney may behave better when on camera. Also, if you have to seek relief from the court, a video tells a much better story than a transcript. If you do not have a video, make sure that you note disagreeable behavior that may not appear on a tran-script, such as shouting or hovering over a witness.

Stay Calm. “In cross examination, as in fishing, there is nothing more ungainly than a fisherman pulled into

the water by his catch.” Keep this Louis Nizer quote in mind the next time you depose a difficult witness.

A difficult witness, not to be con-fused with a well-prepared witness, can make a deposition extremely frustrating. Some witnesses will not be affected by your charisma or professionalism. They will continue to be difficult. You will most likely not be able to break them. What you can change is your reaction. Take your time and keep your cool. An evasive witness is hoping that you will become discouraged and move on. If you argue with the witness or his or her attorney, you may lose your focus. Note your objection to the witness’ unre-sponsiveness and continue with your questioning. Continue to ask the ques-tion until you get your answer. Take a short break if necessary to regain your composure.

If the witness continues to evade questions and you are not getting answers, determine whether it will be worthwhile to move the court for relief. When making this decision, you will need to consider how the record will appear to a judge. Ending the deposi-tion is something that should be done in only the most egregious circumstances. If you find this necessary, clear the deci-sion with the attorney in charge of the file.

Preparation and confidence are essen-tial to being successful in depositions. Being comfortable in your approach and knowing how to handle difficult situations will make you more efficient. Improving deposition skills can lead to better support for dispositive motions and fewer surprises at trial. HN

Kiera O’Connell Goral, an attorney with Thompson, Coe, Cousins & Irons, LLP, focuses on first party insurance disputes and insurance coverage. She can be reached at [email protected].

By KierA o’connell GorAl

Simple Steps to a Successful Deposition

Court of Appeals at Belo

On September 29, justices from the Fifth District Court of Appeals heard a live oral agreement at the Belo Mansion in front of 300 DISD students. The presiding justices included (left to right) Hon. Elizabeth Lang-Miers, Hon. Douglas S. Lang and Hon. Molly Francis.

www.slicktax.com
Page 15: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 15

To accuse someone of following the path of least resistance is oftentimes an insult. H.G. Wells famously said, “The path of least resistance is the path of the loser.” Napoleon Hill said, “The path of least resistance makes all rivers, and some men, crooked.” In short, tak-ing the easy way out is not usually the heroic path.

In brief-writing, however, there is a valuable place for the path of least resis-tance. Specifically, your brief should lay out the path that will lead the court to your desired result with the least resis-tance.

As we all learned in high school sci-ence class, electricity will follow the path of least resistance. The electrons will flow down the path that is easiest. A short circuit occurs when an acci-dental connection is made that short-ens or simplifies the planned path for the circuit.

Similarly, in legal briefing, both sides should lay out the path of least resistance. The appellant or movant should lay out the easiest path to arrive at the requested relief. By contrast, the appellee or respondent should try to “short circuit” that path and direct the court to a different result.

There are several reasons why it is important to give the court (an appel-late court or a trial court) the path of least resistance. First, trial and appel-late judges are very busy. For example, justices on the Dallas Court of Appeals must author two or three opinions a week just to keep pace in addition to participating in other cases. The point is that busy judges are less likely to go down a long, circuitous path.

For that reason, Mortimer Levitan said, “The secret ambition of every brief should be to spare the judge the

necessity of engaging in any work, mental or physical.” The lawyer who can do that—who can make it easy for the court—is more likely to win.

A second reason is that judges are human. As Sir Wilfrid Greene said, “The desire for simplification is a peren-nial weakness of the human mind, even the mind of judges.” Just because judges are educated and sophisticated does not mean that they crave overly complex arguments. They will gravitate toward arguments that get to the right result most easily.

The third reason is a practical one. Despite the legal profession’s penchant for complexity, most cases boil down to a few simple points. Make it easy for the court by giving the court those sim-ple points. As Justice Oliver Wendell Holmes, Jr. said, “I don’t give a fig for the simplicity on this side of complex-ity, but I would die for the simplicity on the other side.”

The big question, of course, is: How do you do that? One tactic is to state the “deep” issues upfront. A deep issue is a syllogistic statement that encapsu-lates your argument. Bryan Garner dis-cusses this in his book, The Winning Brief. By conveying the deep issue, you will encourage the court to start down your path.

Another tactic is to be selective about the number of issues you raise. On that topic, another quote from Jus-tice Holmes is to “strike for the jugular, and let the rest go.” Don’t complicate your path with secondary issues.

Another tactic—put simply—is to keep it simple. As Einstein said, “Every-thing should be made as simple as pos-sible but not simpler.” If a thought cannot be expressed simply, it is prob-ably too weak to be in your brief. And as Ninth Circuit Judge Alex Kozinski said, “Simple arguments are winning

arguments; convoluted arguments are sleeping pills on paper.”

But don’t confuse simplicity of product with ease of production. It is not easy to simplify a brief. If you take the path of least resistance in your own writing process, you are not likely to produce a brief that best conveys the path of least resistance to the court. As Samuel Johnson said, “Whatever is written without effort is read without pleasure.”

Finally, remember the four Pillars of Affirmance: preservation of error, stan-dards of review, the harmless-error rule, and stare decisis. The presence of one or more of these pillars is an obstacle

to any effort to reverse a judgment. If you are the appellee, one way to short circuit the appellant’s path is to invoke these pillars. If you are the appellant, you will have to find the path of least resistance around the pillars.

To summarize, Justice Holmes said that a lawyer’s job is “to make plainer the way from some things to the whole of things.” You can best do that through the hard work of finding and conveying the path of least resistance. HN

Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specializa-tion. He can be reached at [email protected].

By Scott P. Stolley

Briefing the Path of Least Resistance

RECONCILE.

RESOLVE.

RESULTS.

From A Name You Trust! Your Newest Option in Mediation...

With more than 20 years as an attorney, Jeff Rasansky has the diverse experience required to achieve an efficient and fair resolution for all parties.

Visit www.dallasmediationlawyer.com or call

214-651-6100 to make your appointment today.

IOLTA Prime Partners “Banking on Justice”

The Supreme Court of Texas requires attorneys to place IOLTA

accounts at eligible banks—those that pay interest rates comparable

to other similarly situated accounts.

To see a list of committed banks or for more information on

Prime Partners, contact the Texas Access to Justice Foundation at

www.teajf.org or 512-3209-0099.

~ In Memoriam ~Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit www.dallasbar.org.

Hershell Louis Barnes, Jr. (1943-2011), a 1970 graduateof Texas Tech University School of Law

Michael Anthony Barragan (1956-2011), a 1982 graduateof the University of Texas School of Law

Robert L. Blumenthal (1930-2011), a 1953 graduateof the University of Texas School of Law

Steven K. Cochran (1934-2011), a 1962 graduateof the SMU Dedman School of Law

Charles R. Johnson (1934-2011), a 1961 graduateof the SMU Dedman School of Law

Kerry Liebrecht (1953-2011), a 2004 graduateof the SMU Dedman School of Law

Hon. Hugh Snodgrass (1915-2011), a 1953 graduateof the SMU Dedman School of Law

Paul Thorp (1927-2011), a 1950 graduateof the SMU Dedman School of Law

Professionalism Tip of the MonthLet Your Word be Your Bond. (See Texas

Lawyer’s Creed, A Section I1.) Professionalism is shown by the type of lawyer about whom people will say: “If he says he will do it, he will do it.” Let your word be worthy of the

dignity and integrity that inspires others to act in tandem. Avoid becoming the one others refer to as the lawyer from whom, “You’d

better get it in writing.”

www.dallasmediationlawyer.com
Page 16: Drafting Contracts for the Cloud

16 Headnotes l Dal las Bar Assoc ia t ion November 2011

Compassion. Webster’s Diction-ary defines compassion as the “sympa-thetic consciousness of others’ distress together with a desire to alleviate it.” The Dallas Volunteer Attorney Pro-gram defines it with a list of pro bono lawyers and supporters who are compelled to use their legal skills and resources to help the less fortunate. At the top of that list is one of the champions of pro bono—Lisa Blue Baron.

For years, Ms. Blue Baron has translated her compassion for clients into support for the Dal-las Volunteer Attorney Program, a joint pro bono program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Her efforts to make the lives of others more bearable include using her Spanish-speaking skills to interview clients at the West Dallas Legal Clinic, teach pro se divorce classes, and help Span-ish-speaking clients finalize their fam-ily law cases. She also launched Baron & Budd’s pro bono program while she was at the firm. Ms. Blue Baron’s com-mitment to pro bono does not stop there. Her support includes significant financial assistance to the program’s fundraisers for nearly 20 years, includ-ing support of the annual Equal Access to Justice Campaign, Bench Bar Con-ference and Law Jam. If that weren’t enough, Ms. Blue Baron has hosted and underwritten Legal Aid of North-West Texas’ annual Women’s Advocacy Awards since 2008.

In recognition of her compassion and generosity, the Dallas Bar Asso-ciation and Legal Aid of NorthWest Texas honored Ms. Blue Baron with its first ever Access to Justice Award at the annual Pro Bono Awards Reception on

October 26.“Lisa’s contributions

are far and wide,” said Dal-las Bar Association Presi-dent Barry Sorrels. “She has donated her time. She has encouraged others to do pro bono. She has trained legal aid staff so they can better represent their clients. And she has made significant financial contributions. She does it all, and she has done so for many, many years.”

The new Access to Jus-tice Award will be given jointly by the Dallas Bar Association and Legal Aid of NorthWest Texas from time to time to a deserving individual, group, or organi-zation and will be named The Lisa Blue & Fred Baron Access to Justice Award in honor of our first recipient’s outstanding contributions to the Dallas Volunteer Attorney Program. The Lisa Blue & Fred Baron Access to Justice Award follows in the footsteps of the Hartman Judicial Pro Bono Service Award, named after the late Honorable Merrill Hartman, who was one of the founders of orga-nized pro bono in Dallas, and the Lois Bacon Special Services Award, named in honor of the late Lois Bacon who, following retirement, volunteered full-time for the Dallas Volunteer Attorney for over 20 years. HN

Lisa Blue Baron Honored with Access to Justice Award The Senate has confirmed Sarah

Saldaña as U.S. Attorney of the Northern District of Dallas. President Obama nominated Saldaña on June 27 and the Senate Judiciary Committee unanimously approved the nomination on September 7. The full Senate followed on Sep-tember 12, and she was sworn into office on Sep-tember 29 by Hon. Sid-ney A. Fitzwater, Chief U.S. District Judge.

“Sarah Saldana has all the tools to be an excel-lent United States Attor-ney for the Northern District of Texas—intel-ligence, determination, experience and a keen sense of right and wrong,” said DBA President Barry Sorrels. “She is a credit to her profes-sion and will be skillful in her new position.”

Saldaña, a career prosecutor, has served as Assistant U.S. Attorney since 2004 and most recently served as a Deputy Criminal Chief in charge of the Fraud/Public Corruption Sec-tion. As U.S. Attorney, Saldaña will

oversee one of the largest offices in the country, having prosecutorial respon-sibility over more than 100 counties in the northern and western areas of Texas.

She received her law degree in 1984 from SMU Dedman School of Law and upon graduation, began her law career

as a clerk to Hon. Bare-foot Sanders in the U.S. District Court. She then went on to work at Haynes and Boone, LLP, and then at Baker Botts, LLP. She also worked for several federal agencies including the U.S. Departments of Labor, Housing and Urban Development and Equal Employment Opportu-nity Commission before becoming Assistant U.S. Attorney.

“I am honored by the privilege of serving as U.S. Attorney and greatly appreciative of President Obama’s appointment and the con-sent of the United States Senate, par-ticularly Senators Cornyn and Hutchi-son,” said Saldaña. HN

Jessica D. Smith is the DBA’s Communications/Media Direc-tor. She can be reached at [email protected].

By JeSSicA d. SMitH

Sarah Saldaña Appointed as U.S. Attorney

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Page 17: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 17

This note discusses the ownership of inventions. Here, “invention” means any invention or discovery useful to a business, whether patentable or not, and may include a trade secret.

A patent is a government grant of the right to exclude others from making, using, or selling the invention. Patents have the attributes of personal property, and can be assigned, mortgaged, and devised like any other personal property. State property law governs contracts to assign patents, and transfers, mortgages and devises of patents.

The default rule is that the inventor owns the invention, even if employed at the time. In the absence of a contract or implied obligation that changes the rule, the inven-tor can be assumed to own the invention, including rights arising under a patent on it. The courts are reluctant to find an employee agreed to transfer ownership of his or her invention.

If the employee was hired to invent, then the employer owns the invention. This may result from an employment contract, or from an implied obligation arising from the nature of the employment.

The clearest cases are those where the employer and employee have made a con-tract which explicitly covers the employee’s duties, and also the ownership of inventions made by the employee. Such contracts are enforceable, even if the only consideration for the employee’s performance is continued employment.

If there is no employment contract, the question is whether, from the nature of the employee’s duties, and the employer’s instructions, it can be inferred the employee was hired to invent. The leading case is United States v. Dubilier Condenser Corp., in

which the U.S. Supreme Court found that the inventors did not agree to “exercise their inventive faculties in their work,” and that the invention was not within the scope of the research assigned to them. Thus, the inven-tors were entitled to keep their patents.

Whether the employee was hired to invent, or was otherwise obligated to assign inventions, usually requires detailed analysis of the relationship. If the employee was not hired to invent, and there is no employment contract dealing with invention ownership, then the employee, as the inventor, owns the invention. But even if the inventor owns the invention, the employer may be entitled to a “shop right.”

The shop right is a non-exclusive, royalty-free license, giving the employer the right to practice the invention. The employee-inventor is free to patent the invention and exploit it as he pleases. The leading Fifth Circuit case is Wommack v. Durham Pecan Company.

The Wommack court held the employ-er’s assistance in reducing the invention to practice was not necessary to its obtaining a shop right. The principal consideration is the employee’s consent. This may be shown by either the employee’s actual consent to the employer’s use, or by the employee’s use of the employer’s time and facilities to make the invention.

Essentially, the employee is estopped from suing the employer for patent infringe-ment because of employee’s own conduct. If the shop right is characterized as an implied license, the emphasis is on employee activi-ties such as developing the invention on the employer’s time at the employer’s expense. If characterized as an equitable estoppel, the emphasis is whether the employee’s actions, such as consenting to employer use, require he be estopped from asserting the patent

right against his employer. Some courts simply analyze the circumstances and the employee’s activities to determine if would be fair and equitable to allow an employee to prevent the employer from using the inven-tion.

Joint inventors may become joint pat-ent owners. Under 35 U.S.C. § 116, joint inventors are joint owners, even though they did not contribute equally to each claim in the patent. In the absence of any contrary agreement, joint patent owners may make, use, and sell the patented invention without the consent of the other owners and without accounting to the other owners. The statu-tory rule differs from ordinary co-tenancy law, where co-tenants have a duty to account to co-owners for profits from the jointly-owned

property.Sometimes persons can become joint

inventors unintentionally. Frequently inven-tors need to consult engineers or other experts to manufacture or perfect their inventions. If these persons conceive features which are claimed in the patent application, they are co-inventors and co-owners. There can be a fine line between making suggestions and making an invention. Unless a joint venture is intended, inventors should avoid this prob-lem by getting an agreement that any inven-tions made by the consultant will be owned by the inventor. HN

John A. Thomas is a member of Glast, Phillips & Murray, P.C., representing clients in patent and other intellectual property matters. He can be reached at [email protected].

By JoHn A. tHoMAS

Focus Computer/Intellectual Property Law

Ownership of Inventions

www.jamsadr.com
Page 18: Drafting Contracts for the Cloud

18 Headnotes l Dal las Bar Assoc ia t ion November 2011

FROM THE DAISFrank Carroll, of Cox Smith Matthews Inc., spoke at the Federal Bar Associa-tion’s Annual Meeting and Convention. He also published an article in the Fed-eral Bar Association’s SideBar Summer 2011 issue entitled “Class Action Waiv-ers and the Preeminence of the Federal Arbitration Act.”

Nicole Emmons, of Baker & McKenzie LLP, spoke at the 7th Anti-Counterfeit-ing & Brand Protection Summit in New York City.

Bill Whitehill, of Gardere Wynne Sewell LLP, spoke at the Grayson County Bar Association meeting on Maximizing Arbitration.

KUDOSShakeeb Mir, of Jackson Walker L.L.P., was accepted to the 2011-2012 class of the State Bar of Texas’ Leadership SBOT Program.

Sonya D. Hoskins, of Robinson & Hosk-ins, L.L.P., has been elected Chair-Elect of the Dallas Black Chamber of Com-merce.

Melinda Jayson, of Melinda G. Jayson, P.C., has been appointed Specialty Track Chair for the Fourteenth Spring Confer-ence of the American Bar Association’s Dispute Resolution Section.

Marcos G. Ronquillo, of Godwin Ron-quillo PC, has been named president of the Julian Samora Legacy Foundation Board.

Mark E. Goldstucker, of Brown & Hof-meister, L.L.P., has completed approved mediation training.

ON THE MOVETy Johnson has joined the firm of Strong & Nolan LLP.

Erreka T. Campbell has joined Munsch Hardt Kopf & Harr, P.C.

Bradley R. Holdbrook has joined Win-stead PC as Associate.

Tara Flume and Shruti Krishnan have joined Looper Reed & McGraw as Asso-ciates.

Rose L. Romero has joined Thompson & Knight LLP as Partner.

David O. Taylor has joined the faculty of the SMU Dedman School of Law as an Assistant Professor.

Amy E. LaValle has joined Skiermont Puckett LLP as Counsel.

Meredith L. Perry has joined Wick, Phillips, Gould & Martin LLP.

In the News November

During the past two months, your DBA has been highlighted in the following media:

Dallas Business Journal: Conference of the Professions

Dbusinessnews.com: Philbin Awards, DBF Hosts David Brooks

Dallas Morning News: Appealing to the Public, Legislative Forum

Dallas South News: Legislative Forum

Dallas Voice: Legislative Forum

Fox 4 TV: Appealing to the Public

North Dallas Gazette: DBF Hosts David Brooks, Legislative Forum

OpenPress.com: DBA President Barry Sorrels

OpenPR.com: DBA President Barry Sorrels

SBOT newspaperclips.com: Legisla-tive Forum

Sunnyvale View: Legalline

The Eagle: Ken Burns at Belo

Texas Bar Journal: Ken Burns at Belo

. . . . . . DBA In the News . . . . . .

LAWYERS HAVE HEARTS

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Exclusively protecting members of the Bar

and their families for nearly 40 years.

www.Sbotit .com

The average lifetime cost of a heart attack is $760,000.

Get protected. Health and disability solutions that best fit your needs.

Joseph Geary, founding share-holder of Geary, Porter & Dono-van, P.C., was recently honored with France’s highest military decoration — Knight of the Legion of Honor.

“[The medal] is a sign of France’s infinite gratitude and appreciation for your personal and precious con-tribution to the United States’ decisive role in the liberation of our country,” wrote Francois Delattre, France’s ambassador to the U.S. in a letter to Mr. Geary. “The French people will never forget your courage and devotion to the great cause of freedom.”

Mr. Geary enlisted in the U.S. Army Air Corps in November 1942, during World War II. In the course of his military service, he flew more than 50 European combat missions as a navigator with the 450th Bombard-ment Group.

According to an article in the Dallas Morning News, during one of Mr. Geary’s missions, his plane was severely damaged, and his co-navi-gator moved up to take over for the co-pilot, who had been badly injured. They couldn’t bail out without aban-doning the co-pilot, and Mr. Geary

helped guide the pilot toward the safety of an Allied airfield in Yugo-slavia.

For his courageous acts, Mr. Geary

was awarded the Distinguished Fly-ing Cross and an Air Medal. After his military service, he returned to Dallas and attended SMU Dedman School of Law, where he graduated in 1948. He has served as Assistant District Attorney for Dallas County and as a member of the Dallas City Council. He then went on to help start the firm of Geary, Porter and Donovan.

Mr. Geary, a longtime Dallas Bar Association and Dallas Bar Founda-tion member, was honored with the award on October 8.

Thank you for your service to our country! HN

DBA Member Awarded Knight of the Legion Honor

United States Postal Service -- PS Form 3526 Statement of Ownership, Management, and Circulation (1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 15, 2011. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: Twelve. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquar-ters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Com-plete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2009. (15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Num-ber of Copies (net press run): 11,187; 13,450. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,382; 2,380. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,101; 10,790. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,483; 13,170. (15d1) Free or Nominal Rate Outside-County Copies Included on PS Form 3541: 107; 41. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 387; 37. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 22; 31. (15d4) Free or Nominal Rate Distribution Outside the Mail: 110; 101. (15e) Total Free or Nominal Rate Distribution: 626; 210. (15f) Total Distribution: 11,109; 13,380. (15g) Copies not Distributed: 78; 70. (15h) Total: 11,187; 13,450. (15i) Percent Paid: 94.36%; 98.43%. (16) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2011, issue of this publication. (17) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 15, 2011. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).

www.sbotit.com
Page 19: Drafting Contracts for the Cloud

November 2011 Dal las Bar Assoc ia t ion l Headnotes 19

OFFICE SPACENever Pay Parking Again. 11,540 sf Design District law firm office building for lease/sale. 3 minutes/3 miles from Frank Crowley Justice Center. 48-car parking, 11 private offices, 4000+ sf open work-space - 1319 Crampton, Bob Darrouzet (972) 849-6265, [email protected].

North Central – University Park Area. Penthouse of the Meadows Bldg., spacious window office, balcony. Share office with small AV-rated law firm. Conference room/library, reception area, secretarial station, voicemail, copier, fax, high-speed internet, covered parking and DART station avail-able. Call Sandy at (214) 363-6633.

Office space available within small real estate law firm located at 4054 McKin-ney Avenue. Shared conference and break room, copier, DSL & phone equipment are available if needed. No long term commit-ment and a total monthly rate of $650.00. For inquiry, please call (214) 520-0600.

Executive office available (w/optional sec-retarial office). Preston Tower. shared ame-nities (kitchen, conference room, reception area, bathroom). $775/mo. Near Preston Center, 10 min. from courthouse. Call (214) 369-1171 or email [email protected]. AV rated senior trial lawyer with overflow practice has two furnished win-dow offices and a secretarial area available.

Bilingual receptionist, conference room, etc. Prefer experienced professional to share office space and overhead. Email [email protected] or call (214) 871-2500.

POSITIONS AVAILABLESmall-sized north Dallas AV law firm seeks part-time (25 hours a week) associate/of counsel attorney experienced in trans-actional, tax and/or estate planning law. Prior attorney in this position possessed a Master in Tax degree and experience in the employee benefits area. Perfect for an expe-rienced colleague who wishes a flex time position in his or her career. Respond with cover letter and resume to Dallas Bar Asso-ciation, Box 11–11A, 2101 Ross Avenue, Dallas, Texas 75201.

Palmer & Manuel, LLP, a 13-attorney firm in Campbell Centre, seeks one expe-rienced business litigation and one experi-enced family law attorney. The firm’s com-pensation formula allows attorneys to keep a substantial portion of their fees. See the firm’s website at www.pamlaw.com. Please reply to [email protected].

Dallas boutique business, commercial, bankruptcy, and construction litigation firm seeks experienced litigator. Candi-date must have first chair trial experience and have taken expert deposition. Stable work record necessary. Compensation negotiable. Some portable hourly clien-

tele and involvement in one or more asso-ciations a plus. Firm offers first-rate office environment. This is an excellent oppor-tunity for the right attorney. Respond to [email protected].

Established Boutique Estate Planning Law Firm in North Dallas has an immedi-ate opening for an experienced estate plan-ning attorney with a strong tax background. Part or full time, flexible hours. Email your resume to [email protected].

Employment Opportunity: Associate. Boutique Uptown commercial litigation law firm seeks experienced Associate. Qual-ified candidates will have at least 3 years of law firm litigation experience and experi-ence in document review, discovery mat-ters and various platforms. Candidates must be licensed and in good-standing in Texas. Salary commensurate with experience and abilities. For consideration, send resume to [email protected]. No phone calls, please.

SERVICESMexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corpo-rations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. [email protected].

Diamond And Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089

Economic Damages Experts - Thomas Roney has more than twenty years’ expe-rience providing economic consulting services, expert reports and expert testi-mony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commer-cial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, finance, and CPA experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Con-tact Thomas Roney, Barry Seldon, PhD. or Syd Thompson, MBA in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. [email protected].

Spanish-language Interpreting Services. Margarita Martín-Hidalgo, State Certi-fied Court Interpreter, Federally Certified Court Interpreter. Tel. (214) 883-1736. E-mail: [email protected].

Place Your Ad Here! For affordable clas-sified advertising rates call Judi Smalling at (214) 220-7452.

Classifieds November

NEED BILLABLE HOURS?

Join the DBA Lawyer Referral Service

Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.

Child Protective Services

Advanced Topics Fall Seminar

MCLE 5.25; Ethics .50

November 18, 2011, 8:30 a.m. to 3:00 p.m.,

at Belo

Continental Breakfast & Lunch included Register online: www2.dallasbar.org/

events/register/crimjust_cps_signup.asp

Hosted by the Juvenile Justice Committee

ABA Publication Discount For

DBA MembersDallas Bar members can purchase ABA books at a 15% discounted

rate. For a complete list of titles or to place an order, visit www.aba-

books.org. Enter code “PAB7EDBA” upon checkout and the 15% dis-

count will be automatically applied to your order.

Discount does not apply to ABA-CLE iPod products.

For assistance, call (312) 988-6112.

Page 20: Drafting Contracts for the Cloud

20 Headnotes l Dal las Bar Assoc ia t ion November 2011

When fortune and family matter, trust yours to Kelly McClure.

www.mcclure- lawgroup.com

COLLIN COUNTYtelephone 972 .516 .3850

101 E. PARK BLVD., SUITE 600 P L A N O , T X 7 5 0 7 4

HIGHLAND PARK/DALLAStelephone 214 .692 .8200

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The McClure Law Group is comprised of seasoned, high-octane attorneys who deliver meaningful results when fortune and family matter. Kelly McClure and the team at McClure Law Group expertly navigate the complexities of divorce, division of assets, custody, pre-and post-marital agreements and modifications.

A leader in the Collaborative Law movement, McClure offers clients the option of a collaborative approach to protect privacy and reduce the financial and emotional burdens that can come with litigation. However, when litigation is necessary, the McClure Law Group brings a powerhouse courtroom presence, finance and tax acumen, state-of-the-art research tools, and extensive trial experience to produce resolutions that protect their clients' fortune and family. Trust yours to Kelly McClure.

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