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He was willing to puncture the pretensions of this very serious set of students and professors. He certainly didn’t take himself too seriously.

— Richard Kahlenberg, a classmate of Anthony Scaramucci’s at Harvard Law School, commenting on how The Mooch regularly cracked jokes during class at the T14 law school. Scaramucci went on to fail the bar exam twice after law school before passing, and then entered the finance world. Scaramucci later served as the White House communications director under President Donald Trump for 11 days in July 2017.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

It looks like Fox Rothschild is out of the porn game. You might remember that the Biglaw firm got a lot of attention for their representation of the extremely litigious porn studio, Strike 3 Holdings — they’d filed hundreds of copyright infringement cases on behalf of that client.

The cases, largely filed against John Doe downloaders as part of what’s been described as a file-and-settle strategy, were blasted by judges across the country. U.S. District Judge Royce Lamberth of the District of Columbia said Strike 3 “treats this court not as a citadel of justice, but as an ATM.” In California, another judge ordered sanctions for missing deadlines in numerous copyright cases calling it “willful disobedience” of the court.

But all those porn copyright cases at Fox Rothschild were under the direction of a single partner, Lincoln Bandlow. Apparently when he left the firm early this year, he took all that attention-grabbing work with him. As reported by Law360, Fox Rothschild the amount of new copyright cases they’re filing is down, way down:

After filing 320 new copyright cases in the first quarter of 2019 — and an eye-popping 1,667 such lawsuits over the course of 2018 — attorneys from Fox Rothschild filed just a single copyright case in the second quarter, according to data compiled by Lex Machina.

Of course that means the firm is no longer the most litigious copyright firm. Though Fox Rothschild hasn’t publicly commented on Bandlow’s departure, my guess is they aren’t sad to leave such notorious cases in their rearview mirror.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

This year’s annual ILTACON show is headed to the Walt Disney World resort in Orlando and Above the Law and Evolve the Law will be there soaking in all the legal technology news. And while we’re there, you should come by and hang out!

Details are still to come — watch this site for your opportunity to officially RSVP — but mark your calendars now. We’ll be hosting a little get together on Monday, August 19, at 5 p.m. — just before the ILTACON opening reception. It’s a chance to unwind from the first day of the show and grab a drink on us with the Above the Law gang and tell us all about the speakers you’re blowing off to sneak into EPCOT.

When it comes to developing an intellectual property strategy, it can be easy to miss the forest for the trees.  The main pillars of intellectual property (patent, copyrights, trademarks, and trade dress) are usually the focus (and rightly so), but how the various types of intellectual property work together can sometimes be lost in the process.  This is especially true when it comes to design patents and trade dress protection.  These two types of intellectual property protection are different, yet depending upon certain factors including but not limited to product development and product lifespan, they can actually work together to provide a sum far greater than their parts.  In other words, understanding their differences is key to understanding how they can work together, and may help provide some additional product longevity to your company (or client) if you understand this interplay and implement it correctly.

The interplay of different intellectual property rights is nothing new in the world of intellectual property.  For example, computer software is subject to copyright protection to the extent it is original (as copyright protects original works of ownership fixed in a tangible medium of expression).  That said, computer programs (or elements thereof) may also be patentable in the United States (assuming such programming is novel, non-obvious, and otherwise offers some identifiable improvement on the computer — there is more to it than that, but for the purposes of this example, you get the drift).  Of course, copyrights and patents protect different aspects of intellectual property, and the terms of protection for utility patents and copyrights are different, but these different types of intellectual property can work together to provide layers of protection to the applicable products(s) embodying those rights. The same is true for design patents and trade dress protection, and the nature of the protection they afford individually is an important antecedent to understanding how they work together.

Design patents, unlike utility patents, provide protection for the non-functional characteristics of a specific product.  More specifically, the USPTO defines a “design” in its Design Patent Application Guide as “the visual ornamental characteristics embodied in, or applied to, an article of manufacture.” As designs focus on appearance, “the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation.”  So, design patents cover designs that are articles of manufacture, novel, non-obvious, and ornamental  (covering an article’s shape, surface orientation, and even color, to name a few).  The duration of design patent protection is 15 years from the date of issuance (for design patent applications filed on or after May 13, 2015; then, the duration is 14 years).  Simply put, design patents protect the way the article looks; they do not protect how an article works.

Trade dress also focuses on appearance, but in an entirely trademark way.  By that, I mean that trade dress is a type of trademark protection that protects the appearance of a product, its packaging displays, or other elements that promote the product (or service) due to its distinctiveness in commerce and operation as a source identifier.  For example, when one sees a Coca-Cola bottle from a distance, it immediately brings to mind not just any cola soft drink, but the specific cola soft drink manufactured by The Coca-Cola Company — a powerful source identifier just by the design of the bottle.  As you can see, trade dress operates under trademark law, so its focus is on likelihood of confusion and the origin of such goods and services.  Like design patents, trade dress does not cover functional elements of the product. Unlike design patents, however, trade dress need not be registered with the USPTO to be enforceable (though federal registration offer distinct advantages, not the least if which is nationwide constructive notice and a presumption of validity).  Further, the duration of trade dress protection can be unlimited — that is, the protection will remain in place so long as the trade dress is used in commerce.

This is where the interplay of design patents and trade dress becomes important.  Design patents are patents, so to the extent the article embodying the design was disclosed before the filing of a design patent application, a design patent may not be available.  That said, where the article embodying the intended trade dress has yet to be introduced into commerce, a design patent may be an important option.  The most important point here, however, is that both design patents and trade dress may work simultaneously and provide layers of protection that leverage the best of both worlds.  For example, one can file to design patent protection and, assuming issuance, use the duration of the design patent term to build trade dress rights so that when the design patent expires, trade dress protection can still apply for the duration of the product lifecycle in commerce.  Of course, other intellectual property rights may protect other elements of the product, but the point here is that both design patents and trade dress protection are important elements of protection that should both be considered whenever applicable.

It is interesting how these two different yet complimentary types of intellectual property can add value to an intellectual property portfolio.  Protecting and leveraging such rights, however, requires informed counsel and a strategic plan.  So when it comes to your intellectual property strategy, don’t be afraid of a little form over function — your company (or client) will be better off for it.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Amazon’s PillPack mail-order pharmacy is thinking about a legal challenge to Surescripts over what it considers to be information blocking limiting the company’s access to data necessary to serve its customers.

CNBC cited unnamed sources who state that PillPack will be blocked from accessing data about a patient’s list of medications and prescription history, which it uses to accurately and safely send out medications to customers.

According to CNBC, Amazon has already sent a cease-and-desist to Surescripts and could consider further legal action if the issue is not resolved.

Amazon doesn’t directly contract with Surescripts and instead works through a third-party data vendor called ReMy Health, which collects and shares Surescripts medication data in a more usable form.

Without linked prescription data, Amazon would be forced to manually contact patients to collect the information, a laborious and error-prone process that directly contrasts with its promise of a simpler and more efficient drug purchasing.

For its part, Surescripts said that medication history is sensitive information “intended to be used by physicians in caring for patients and the company does not contract with any company to serve as a repository of medication history to pharmacies.

“Medication history information is extremely sensitive in nature. Surescripts takes our role as a trusted national health information network very seriously. Because maintaining a trusted network is core to our purpose, patient safety, privacy and security are at the top of our agenda,” the company said in a statement.

Amazon, which purchased PillPack last year for around $750 million as part of its larger ambitions in the healthcare space. The company, which intends to disrupt the existing way prescription medication is sold and distributed has continued to butt heads with major market players as it tries to shoulder its way into the industry.

“Each time Amazon moves into a new industry and redefines consumer expectations of cost and value, it poses a threat to legacy businesses in the space. It’s not surprising that Amazon is now experiencing pushback on its pharmacy ambitions,” said healthcare consultant Rita Numerof.

Surescripts is a major player in the medication data and e-prescription space and is owned in part by industry incumbents including CVS Caremark, Express Scripts and Medco Health Solutions.

Surescripts has long been accused of anticompetitive practices and has been involved in a recent battle with the FTC over allegations that it has illegally monopolized the e-prescription market.

“Surescripts’ illegal contracts denied customers and, ultimately, patients, the benefits of competition – including lower prices, increased output, thriving innovation, higher quality, and more customer choice,” FTC Bureau of Competition Director Bruce Hoffman said in a statement when agency’s complaint filed a legal complaint against the company.

The FTC argued that through anticompetitive exclusivity agreements, threats, and other exclusionary tactics, Surescripts monopolized control of the market for clinicians to send prescriptions electronically to pharmacies, as well as the ability for providers to determine eligibility for prescriptions through their insurance and benefits coverage.

Surescripts has a roughly 95 percent market share in those markets even as the eligibility and routing transactions have ballooned, according to the FTC.

Earlier this month, Surescripts filed a motion to dismiss the FTC complaint citing “significant factual errors” in the agency’s argument.

Photo: fstop123, Getty Images

Here at Above the Law we care a lot about increasing transparency at Biglaw firms — that’s why we spend so much time reporting on bonuses and salaries and benefits. And while reporting on the market standard and leaders will always be a part of our mission, we also want to hear about what it’s like to actually work in the halls of Biglaw.

So, we’re asking our readers to fill out a brief survey about what they wish they knew about their firm before they started working there. We don’t care about the firm’s PR line, but about what associates really feel about the firm. We’ll be integrating the results of the survey into a new transparency project that’ll be launched later this summer.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).