"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Friday, February 28, 2014

Congress.gov Adds New Features


As we noted back in November, the popular legislative website THOMAS.gov is now redirecting its users to the Congress.gov platform. More recently, Congress.gov introduced Advanced Search and Browse features to its database, and also incorporated the Appropriations table from THOMAS.

The Advanced Search feature allows users to search in 21 different data fields, including Bill Text, Bill Summary, Committee, Sponsor, Cosponsor, Policy Area, Bill Official Title, and Bill Popular Title. You may search all legislation going back to the 93rd Congress (1973-1974), or limit your search to current legislation. Multiple data fields may be used in a single search. To add or remove a data field, you simply click on the plus or minus icon. You then specify whether you want to search for documents that contain or do not contain your search terms. This is a useful feature that allows you to increase the accuracy of your search. For example, if you wanted to search for all current bills in the Senate Armed Services Committee not related to Afghanistan, you might select “Armed Services” under the “Committee – Senate” field, and under the field “Title – All (Bills)” search for documents that do not contain the term “Afghanistan.” 

The Browse feature is similar to that of THOMAS, but the browsing categories have been rearranged under slightly different headings. For example, vetoed bills are now found under a separate heading from bills, resolutions, and amendments. There are also several categories from THOMAS that have either been dropped or are not yet available. As of this posting, Congress.gov does not allow browsing by bill number, popular and short titles, sponsor summaries, or CBO cost estimates.   

The Appropriations tables can be found by clicking on “Appropriations” on the home page under “Bill Searches and Lists.” These tables list appropriations resolutions by fiscal year, with links to full text and histories of the resolutions and to roll call vote results. However, Congress.gov currently only includes tables going back to 2011, while those on THOMAS go back to 1998.

 Congress.gov currently does not include data sets for nominations, treaties, or Senate Executive communications, although the About page states that they will be added over the course of this year. These data sets are still available on THOMAS. (The original THOMAS site can be accessed here until late 2014.) You can read more about Advanced Search and Browse, as well as other new developments, on the Enhancements page.

Thursday, February 27, 2014

Fed Announces New Transparency Policy


The Federal Reserve Board announced on Monday that it will begin publishing a semi-annual report providing information on applications and notices filed with the Federal Reserve for approval of activities such as mergers, acquisitions, and formation of holding companies. According to the announcement (published as SR letter 14-2), the purpose of the new report will be to “enhance transparency in the Federal Reserve’s applications process and provide the banking industry and general public with better insight into the issues that could prevent the Federal Reserve from acting favorably on a proposal.”

When Federal Reserve staff recommend denial of a proposal to the Board, the filer is notified and given the option to withdraw the application or notice. Withdrawn applications are typically noted on the Fed’s public H.2 Release. The new semi-annual report will provide data on the number of approvals, denials, and withdrawals, as well as information on the reasons for withdrawals. As noted in the SR letter, some of the common issues resulting in the withdrawal of an application include less-than-satisfactory ratings for safety and soundness, consumer compliance issues, financial and managerial factors, and violations of the Bank Secrecy Act.

For more information, you can read the full SR letter on the Fed’s website.

Friday, February 21, 2014

Can State Laws Combat Patent Trolls?



As discussed in my last post, in the 2015 legislative session Texas may consider using state consumer protection law to combat patent trolls. Attorneys General of Vermont and Nebraska, for example, have separately taken action against patent trolls by suing under state consumer protection laws. More recently, Vermont enacted legislation that is specifically aimed to combat patent trolls. But do states have the power to regulate patents at all? And is that the best avenue for relief from patent trolls? Let’s look at some different perspectives:

Federal Patent Law & States

Due to federal law, states cannot enact their own patent laws. Federal courts have original jurisdiction over civil actions relating to patent and patent infringement (28 U.S.C.A. § 1338). The Vermont law states that a person “shall not make a bad faith assertion of patent infringement.” (Vt. Stat. Ann. tit. 9, § 4197 (West 2013).  If a patent asserter (i.e. patent troll) is accused of asserting its patents in bad faith, the judge may award equitable relief (including injunctions) and damages. Critics claim that making judgments about patents may make conflict impermissibly with federal patent law.  

Proponents of the state legislation instead say that the law does not attack the validity of the patent itself, but the determination of “bad faith” hinges on the behavior of the patent asserter. A few of the  factors used to determine bad faith under the Vermont law include: demand letters failing to specify the patent number; lack factual allegations about the specific way in which the entity is infringing on the patent; and demand for a license fee in an unreasonably short amount of time. (Vt. Stat. Ann. Tit. 9, §4197 (West 2013). Similarly, the statute also contains factors that can be evidence of no bad faith on the patent asserter, such as when the asserter is the inventor or an institution of higher education. By relying on these factors, and not the underlying patent itself, many believe this will save the law from preemption.   

 A Patchwork of State Laws 

Critics of state laws to combat patent troll activities have also suggested that a patchwork of different laws from all the states would lead to confusion and inefficiency, and a single federal law would be more appropriate. Some fear that this would make it significantly more expensive for intellectual property owners to enforce their rights. Finally, they suggest that determining which state’s law should apply will be unreasonably difficult, as these activities could very well cross state lines. 

Advocates of the state laws may agree, and see the additional costs as a deterrent to patent trolls.  Patent trolls may send thousands of demand letters all across the country, with the understanding that at least some of the recipients will settle immediately to avoid litigation. If these letters may now spur action from state attorneys general, who can effectively fight back with attacks of their own under state law, patent trolling may cease to be lucrative.

Tuesday, February 18, 2014

Will Texas Take On Patent Trolls?



In preparation for the 83rd Texas legislative session, both House and Senate committees have been directed to study potential solutions to the growing problem of patent troll litigation. Patent trolls (also known as “patent assertion entities”) are companies that acquire broadly-written patents, often for routine activities like transmitting audio or video online. These entities have no intent to use the patents themselves; their sole source of income is settlements and legal fees related to its patents. The entities send out thousands of letters to potential infringers, demanding exorbitant fees for a license to engage in the patented activity, and threatening suit if the recipient fails to pay for a license. The alleged infringing businesses are forced, even if the allegations are baseless, to either pay the license fee or face costly and uncertain litigation. Much of this litigation takes place in the Eastern District of Texas courts, where plaintiffs are awarded damages or injunctions twice as often as elsewhere .

Congress is examining legislation that would fight frivolous lawsuits by making them liable for court costs, should they lose their cases. But as the number of patent infringement lawsuits continues to rise, some states are taking on the problem themselves. The attorney generals in both Vermont and New Hampshire have sued alleged patent trolls under state consumer protection laws. Vermont has additionally passed legislation aimed at protecting companies from bad faith infringement lawsuits. Just this week, the Oregon Senate passed a bill that would make patent trolling a violation of Oregon’s Unlawful Trade Practices Act and the Kentucky legislature is considering similar legislation.

In Texas, the interim charges to the House Committee on Technology relating to patent trolls instructs the committee to examine if “abuses in the patent system” interfere with state business and innovation and “whether actions by the state can address any such abuses.” In turn, the Senate State Affairs Committee is charged with making “recommendations on how the State of Texas can address problems related to frivolous legal actions and unsubstantiated patent claims.” There are arguments as to whether or not such legislation would be pre-empted by federal law, as states cannot enact their own patent laws. In part 2 of this discussion, we’ll consider the arguments for and against states using their consumer protection laws to combat patent trolls. But we’ll have to wait for the next legislative session, in 2015, to see what route Texas will take.

Friday, February 14, 2014

Global Health and Human Rights Database


The Lawyers Collective and the O’Neill Institute for National and Global Health Law at Georgetown University recently launched the Global Health and Human Rights Database.  This free resource provides access to case law, national constitutions, and international instruments regarding the right to health and other health-related rights from over 80 countries.  It also includes plain language summaries of case law as well as 200 English translations of case law that were previously not available in English.

All resources can be accessed via a full-text search.  However, browsing options are available as well.  For case law judgments, you can also browse for materials by county, by topic (such as health systems and financing or mental health), or by specific human right (such as right to health or right to life).  For constitutions, you can sort by region (such as Africa or Europe) or by specific human rights.  Finally, for international instruments, you can sort by region or by legal status (such as legally binding or non-binding). 

For more information about the database, see the About page.

Thursday, February 13, 2014

US Court Opinions on FDsys


The US Government Printing Office's Federal Digital System (FDsys) website provides access to many federal court opinions.  This collection started as a small pilot project back in 2011; when it launched, it included only three courts, but it has grown substantially in the last few years.  The coverage varies, but currently opinions may be included back to 2004 for 10 of the US Courts of Appeals (including the 5th Circuit), 26 US District Courts (including the Northern District of Texas), and 38 US Bankruptcy Courts (including the Southern District of Texas). 

You can choose to browse for opinions by court, or you can use the simple search, advanced search, or retrieve by citation features.  After you find the opinion you are interested in, FDsys will also allow you to view the document in context, which provides you with information about and links to other associated opinions for the same case.  For more information about searching in FDsys, view the FDsys tutorials or FDsys Help page.

Tuesday, February 11, 2014

Child Welfare Information Gateway


For people who are looking for a one-stop shop for legal information and social work practice on child welfare, the Child Welfare Information Gateway is a dream come true.   Formerly the National Clearinghouse on Child Abuse and Neglect Information and the National Adoption Information Clearinghouse, this website is set up as “a service of the Children's Bureau, Administration for Children and Families, U.S. Department of Health and Human Services”.  For people interested in the social work aspects of child welfare there are pages of instruction and information under various topics such as child abuse & neglect, responding to child abuse & neglect, out-of-home care, adoption, etc.  For those in need of legal information, there are on the court system, law & policies, National Foster Care and Adoption Directory, and a search engine to conduct state statute search.  Additionally there is a Learning Center and a Library to aid educators and students.  All webpages of this site are also listed at the bottom of each webpage for quick reference and easy access.  Last but not least, the What’s New & Popular panel on the homepage bringing visitors the newest and most popular (most visits, most shared, and highest rated) information, which can be had by signing up for free subscriptions.  After exploring this website I feel that my tax money is well spent.

Thursday, February 6, 2014

Canada Signs Tax-Sharing Agreement with U.S.

Reuters is reporting that Canada has signed a tax information sharing agreement with the United States. This means that the Canadian government has agreed to share information on U.S. taxpayers obtained from Canadian banks with the I.R.S. The ultimate goal of this agreement is to prevent offshore tax evasion by U.S. citizens who seek to hide their assets from their home country to avoid paying taxes. According to the article, similar agreements have been made between the U.S. and 22 other countries, including a recent agreement with Hungary. By signing the agreement, Canada was able to avoid the stricter guidelines of the Foreign Account Tax Compliance Act, Pub. L. 111-147, 124 Stat. 97-110 (2010), passed by Congress on March 18, 2010. According to the article, this act would have mandated that Canadian banks disclose information on U.S. citizens' accounts that are more than $50,000 and would have implemented a 30% withholding  tax on foreign entities that are non-compliant. Instead, Canada will share information with the I.R.S. under the provisions of the current tax treaty already in force. The full text of the agreement is available on the Canada Department of Finance's website.