Leading-Edge Law Group, PLC

Has this ever happened to you? You check out a domain name for possible registration. You don't register it immediately because you want to think about whether it's the right domain name for your need.

A few days later, you decide it's the right one and attempt to register it. But it's now taken. You wonder whether someone was able to monitor your earlier interest and registered it because of your interest.

While there is no conclusive proof this activity exists, just its possible existence has caused enough controversy to spawn a name for it - domain name "front running."

Two organizations recently examined whether front running exists and have expressed skepticism.

A committee of the Internet Corporation for Assigned Names and Numbers (ICANN), which governs the domain name system, issued a report in October 2007. The committee could not determine whether front running really happens.

The committee pointed out that the high volume of daily domain name registrations, especially by short-term speculators, could be causing the occasional coincidence where person #1 searches for a domain name but does not register it immediately and person #2 happens to register it shortly thereafter.

The committee also identified technological means by which one might be able to engage in front running but could not find proof of such activity occurring.

Ultimately, the ICANN committee asked for detailed reports of possible front running instances so it could scrutinize more data.

Nominet also examined the issue in a November 2007 report. It runs the registry for .uk domain names. It also found no proof of front running and expressed strong skepticism that it exists.

Nominet reminded us that "domainers" account for a high volume of domain name registrations and a large majority of new registrations. Domainers scoop up bushels of available domain names that might attract traffic due to their simplicity or past use. Domainers attempt to "monetize" domain names that attract traffic by selling pay-per-view and pay-per-click advertising on computer-generated, template websites.

A leading domain name registrar, Network Solutions, recently took action on this issue in a controversial way.

This month, Network Solutions implemented a policy where, if you search for a dotcom domain name on its website, Network Solutions will keep the domain name from being reserved via another domain name registrar (such as by Register.com) for four days.

Interestingly, during the four-day hold, the domain name will be available for registration at Network Solutions by anyone, not just the person who did the triggering availability check.

One can look at the Network Solutions policy as benevolent or malevolent. In the benevolent view, Network Solutions charges relatively high prices - $35 per domain name for a one-year registration. That price is too high for most kinds of domain name speculation, including front runners if they exist, so you'll probably be able to get the domain name within the four-day hold period if you wish.

In the malevolent view, Network Solutions is engaging in front running under the pretext of guarding against unproven front running by others. You can register any dotcom domain name at a cheaper per-year price from other reputable brokers. The Network Solutions lockdown forces you to pay Network Solutions' high price or take the chance the name will be taken as soon as the Network Solutions hold expires.

If you believe front running exists, you'll be concerned that the hold itself might alert the bad guys to pounce when the hold expires, so you'll feel pressure to pay the high price.

I don't know if front running exists. Regardless, millions of domain names are registered by domainers every month for possible monetization, so there's a good chance the domain name that's available today may be gone tomorrow by coincidence.

I recommend using a cheap but reputable domain name registrar to search for potential domain names. If you find an attractive domain name, buy it on the spot or, at the least, in the same browsing session. Don't take the chance that the domain name will be around when you make up your mind in a couple of hours or days.

For example, your can register a dotcom domain name for one year on GoDaddy.com for $10.19. That sum is nothing compared to what you would pay to a dotcom domain name broker for a taken name or to a lawyer to try to take the domain name away on legal grounds.

If you choose to save your money while you contemplate the purchase, that's your freedom, but don't whine when the domain name is gone later. On the Web, he who hesitates often loses.

Most businesses don't try to negotiate license agreements for commercial software they purchase. That's too bad, because many of those agreements are negotiable and contain legal landmines.

Most licenses for software intended solely for business usage are negotiable. How far you will get comes down to leverage.

Below I discuss four (of many) "landmine" issues in software licenses - issues that aren't obvious but deserve attention by software customers ("licensees" in legal lingo):

#1 - The Documentation Trap. The software vendor (the "licensor" in legalese) will promise that the software will function as described in the "documentation." Usually no one knows exactly what documents constitute the "documentation." Worse yet, you often don't see any software "documentation" until after you sign the deal. Also, these documents evolve over time and are written to protect the vendor.

Solution: Create a complete and clear written description of everything you expect out of the software. Make this description an exhibit to your software license agreement. Call it collectively the "Specifications." The Specifications might be tens or even hundreds of pages long, and probably will be composed of multiple documents. The vendor should give you a warranty that its software will meet the Specifications.

Collectively, the Specifications should describe important software attributes, such as functionality, performance specifications, compatibilities and interoperability.

#2 - The Upgrade Trick. For most commercial software, in addition to paying an upfront license fee, you pay an annual fee for "support and maintenance." Support entitles you to get help with some software problems, usually by telephone and email. Maintenance entitles you to some but not all future revisions to the software.

Nearly all software licensors include bug fixes and minor upgrades in what you get for your maintenance payment, but not major upgrades. So what's to keep the licensor from arbitrarily calling the next software release a major upgrade and demanding more money? Nothing except the licensor's sense of propriety.

Solution: Get the licensor to give to you, at no additional charge, every new version of the software that comes out during the time you continue to pay for software maintenance regardless of whether it's called a "major release" or any other name.

On a related note, contractually require that, if any significant functionality is stripped from the software and placed in a separate product, that the vendor will also give you a license to the separate product at no additional license fee and no additional support and maintenance fee.

#3 - Use by Contractors. On the customer's side, almost all information technology departments are crawling with contractors (i.e., non-employee workers). Also, IT departments commonly use outsourcer contractor personnel to supplement or replace its IT staff.

But do your software licenses permit you to allow these contractor personnel to use the licensed software on your company's behalf? If your license does not address this issue, it might be copyright infringement and breach of contract for you to permit contractor usage.

Solution: Get written permission in the software license to permit your contractors (including outsourcers) to use the software on your business's behalf. You will need to promise that the contractors will not use the software for any other purpose and to take financial responsibility for any breach of that obligation. You may also be required to have such contractors sign confidentiality terms that protect the software.

#4 - Non-Production Copies of Software. Most software licenses will allow you to make one additional copy of the software for archival - to use in case you damage or destroy the copy you use in production. Some licenses also permit making an extra copy for remote usage by the same person who is the workplace desktop user - so that the software can be used at work or away. Beyond that, the license agreement usually prohibits making additional copies without purchasing additional licenses. But there are other uses that shouldn't result in extra license fees.

During Y2K preparations in the late 90's, some software vendors required customers to pay to make extra copies of software to use only for Y2K testing.

Solution: The limitation on the number of copies of the licensed software that the customer can make ought to apply only to copies used productively. Try to obtain the ability to make an unlimited number of copies to be used for testing and training, and for backup systems including a software archive.

Nearly all vendors have the power to give such latitude, so beware of software salesmen who try to nickel-and-dime you for extra license fees here. Practically speaking, the only situation where the licensor might not be able to fully accommodate you is if there is third-party software embedded in the licensor's software and the licensor has to pay a per-copy royalty to its licensor for that third-party software.

How long can you wait before seeking a patent on your new invention? A recent federal court of appeals decision demonstrates the difficulty of calculating with certainty how much time you have.

My advice? Be paranoid that the deadline may be sooner than you think. File your patent application as soon as possible.

Under U.S. law, any one of three activities will bar an inventor from obtaining a patent, and will invalidate an issued patent, if the activity occurs more than one year before the inventor applies for a patent.

In other words, doing any of these activities starts a one-year clock. After that year, your patent application becomes "time barred." Even if you get a patent, which could happen because the patent examiner might not know of the clock-starting activity, the patent will be invalid because it was time barred.

So for example, if you offered your invention (perhaps your better mousetrap) for sale on January 1, 2008, then you have until January 1, 2009 to apply for a U.S. patent. After that date, you are barred from patenting your invention in the U.S. If you nevertheless apply after January 1, 2009 and get a patent, it's invalid.

By comparison, U.S. law is forgiving to inventors. In most other countries, activities that merely start a one-year clock in the U.S. are patent killers in those countries. These other countries do not have our 12-month grace period.

Thus, in most other countries, you must apply for a patent before engaging in the clock-starting activities listed above. One saving grace is that filing a U.S. patent application usually entitles you to file a corresponding application in a foreign country within one year, provided you didn't do any of the clock-starters before you filed your U.S. application.

This time limitation on patenting law runs contrary to the desires of many inventors. They often want to see if an invention has commercial value before spending $10,000 to $20,000 on a patent attorney. Yet, many inventors wait too late and lose their invention rights. Worse yet, often you don't find out until you are in litigation whether you waited too late.

That's because the federal law on patenting time bars is murky. Legal tomes have been written analyzing where the lines are drawn. The federal court of appeals that is responsible for patent law - the Court of Appeals for the Federal Circuit - often issues new decisions adding to the time-bar law.

The recent decision I mentioned at the beginning of this column was issued by the Federal Circuit in February 2008. It concerned the application of the "experimental use exception" to these time bars.

Basically, this exception provides that, if you engage in one of the time-barring activities (e.g., offering an invention for sale, using it in public), the activity does not start the one-year clock running if the purpose of your activity was to experiment with the invention in order to perfect it.

In this case, the inventor received a patent on a sewing machine that attaches gussets to mattresses. The Federal Circuit ruled the patent was invalid because, more than one year before applying for the patent, the applicant had sold 50 machines to a mattress manufacturer so the manufacturer could determine whether the machines fit the bill.

The Federal Circuit held this sale wasn't covered by the experimental use exception because the inventor itself wasn't conducting or controlling the testing and because the inventor offered to mass produce the machines. The customer's testing performed to see if the invention met its needs didn't qualify as an experimental use.

Yet, as two of the three judges on the case noted, federal law is too cloudy concerning if and when the experimental use exception will prevent imposition of a patenting time-bar.

These judges pointed out that some case law can be read to say that the experimental use exception disappears once the inventor offers for sale or uses publicly a working prototype of the invention, even if that sale or use is strictly for the purpose of honing the invention.

Don't worry about understanding exactly what the court held. Even the court is unsure of the law here. That's the point.

The moral to this story is that, because of the legal uncertainty over what events will start your one-year clock running, you should always assume you need to file your patent application ASAP. Any additional day might be a day too late.

An important, recent federal appellate court decision addresses the legality of using a competitor's trademarks in hidden website text called "metatags." The decision also ordered further study on whether trademark owners should continue to automatically get injunctions stopping use of infringing trademarks by others.

Metatags consist of text, embedded in a website, that is not visible to the web surfer but helps the website accomplish its mission. They are used to give your website a title (the text you see at the top of your web browser screen, above the toolbars). They also are used to provide a description of your website's mission. Some search engines use all or part of that description in search results that list your website.

In the 1990s, metatags also were a way to tweak your website to improve its ranking in search engine results. Search engines would read metatags in deciding whether and where to include your site in the results.

Thus, if you sell trail-running gear, you might stuff your metatags with the brands you sell, such as Montrail and Patagonia.

You can see the metatags for a website by right clicking on the body of a website and choosing "view source."

If you are aggressive, you might stuff your metatags with the trademarks of your competitor, hoping a web search for your competitor's product will include your website high in the search results.

In a recent court decision, a maker of medical devices placed in its website metatags the trademarked names of a competitor's products. The competitor sued alleging trademark infringement.

The trial court found that this metatag usage had caused the defendant device maker's website to show up in search engine results just under the plaintiff's website when the plaintiff's trademarks were used as search terms. It also found that this metatag usage caused the plaintiff's trademarks to appear in the search result listing for the defendant device maker.

The trial court held that this constituted trademark infringement because it found consumers were likely to be confused by the defendant's search engine listing.

For reasons I discuss below, the appellate court affirmed this ruling but sent the case back to the trial court for more analysis regarding what the plaintiff's remedy should be.

Regardless of that outcome, the defendant is in serious trouble. Possible remedies include recovery of all of the profits the defendant earned during the time of infringement, plus a possible tripling of these damages, plus possible recovery by the plaintiff of its attorneys' fees.

In a surprise ruling, the appellate court sent the case back to the trial court with instructions to examine whether an injunction against trademark infringing activity should be issued automatically whenever a trademark owner wins an infringement lawsuit.

The court did so because of a recent Supreme Court case called eBay v. MercExchange, which held that winners of patent infringement lawsuits should not automatically get injunctions stopping infringement. The Supreme Court set forth a multifactor test to use for evaluating whether an injunction should issue. It held that, in some cases, it is enough to pay money damages while permitting the patent infringement to continue.

Traditionally, in trademark cases, if a plaintiff proves a likelihood of confusion caused by the defendant, the plaintiff automatically gets an injunction stopping the infringing activity.

Yet, the concerns regarding patents that led to the Supreme Court's ruling in the eBay case don't exist in trademark law.

With patents, there have been concerns that winning patent plaintiffs were given too much financial leverage in settlement negotiations by the previous, automatic-injunction rule. Should a patent owner be able to shut down an infringing product when the patent covers only a small element of the product, especially when the patent owner has been willing to sell a patent license to any willing customer? Also, there have been concerns over the quality of many patents issued recently. Neither of these concerns exist for winning trademark plaintiffs.

We'll face some legal discombobulation while the courts sort out the impact of eBay on trademark cases but, probably, winners of trademark cases will continue to get automatic injunctions.

If you leave your employer, can you use in your next job confidential information you remember from your old job, even if you don't take anything in writing?

A recent decision by the Ohio Supreme Court holds that using memorized trade-secret information can get you in legal trouble.

In the Ohio case, an employee had memorized part of his employer's client list, which the employer had kept as a trade secret. The employee then quit and started a competing company. He used the memorized information to contact and lure away 15 clients of his old employer.

The former employer sued claiming trade secret theft. The former employee lost in the trial court and the Ohio Supreme Court affirmed the decision. It held that trade secrets are stolen (which is illegal) by memorizing trade secret information and using it later. You don't have to steal written materials to be a trade secret thief.

This decision created a buzz in legal circles. Do you have to get a lobotomy to avoid legal jeopardy in a new job?

For practical reasons, employers shouldn't rely much on this decision, and employees shouldn't be that fearful of it.

To see why, you must know basic trade secret law. A trade secret exists when the holder of information has taken reasonable steps to keep it secret and such secrecy makes the information valuable. The company that owns a trade secret can sue to stop its dissemination.

Classic examples of potential trade secrets are client lists, internal financial information and manufacturing processes.

I emphasize "potential" because no type of information is automatically a trade secret. If you don't take reasonable steps to keep it confidential, it's not a trade secret.

Back to the Ohio case. The Ohio Supreme Court held the client list was a trade secret but didn't detail what actions the employer had taken to keep it confidential.

Was the list distributed internally only on a need-to-know basis? Was it kept in a password-protected computer file or locked file cabinet? Did everyone who saw it sign a confidentiality agreement?

While you don't necessarily have to do all of those things to make the client list a trade secret, those are common-sense protections. Yet, many companies fail to protect sensitive information adequately.

Also, most courts (including Virginia) hold that using information you remember about customers of your old employer to serve your new employer is fine provided the remembered information isn't a trade secret (and provided you have not signed a non-compete or customer non-solicitation agreement).

This leads to a fine distinction: Even if a former employer successfully treated its whole client list as a trade secret, that doesn't necessarily mean the identity of each client is a secret.

Unless each client signed an agreement to keep its status as client confidential, then there's a strong argument that a defecting employee can use what he just happens to remember about clients of his old employer as long as he does not try to memorize and use the whole client list.

While memorizing the whole client list (or any other trade secret) for later use is illegal in theory in Virginia, Ohio and many other states, how will the former employer ever prove such memorization took place? Absent smoking-gun evidence, these will be tough cases for employers.

Also, many courts will hesitate to rule for an employer because the employer could have taken steps to prevent the situation. The employer could have required its employee to sign a non-compete, or at least an agreement to not solicit current customers. Courts will be wary of giving employers de facto non-competes they never obtained by negotiation with their employees.

For employers, do not rely on the Ohio case to save you from competition by departing employees. Use written employment agreements to protect your trade secrets, and try to include non-competes and customer non-solicitation provisions in them. There is a laundry list of other things you should do to protect trade secrets, but that's a column for another day.

For employees, you should "walk out naked." Don't take any information from your old employer, either on paper or electronically. Unless you signed a non-compete or a customer non-solicitation agreement, you should be fine seeking business from the customers of your old employer in most cases. Just don't create any smoking-gun evidence that you tried to memorize trade secret information, such as client lists, before departing the old shop.

Earlier this month, the U.S. Supreme Court issued the most anticipated intellectual property decision of the year - Quanta Computer v. LG Electronics. It concerns a doctrine called "patent exhaustion."

While much of the ruling is "inside baseball" for intellectual property attorneys, it's worthwhile to understand the case's implications for the value of patents.

To set the stage, here's the ruling in a nutshell: When you sell something covered by a patent you own, you generally "exhaust" your patent rights by making the sale. Thus, you can't later sue the purchaser, or someone else who follows the purchaser in the stream of commerce, for patent infringement.

In this case, the plaintiff, LG Electronics, owned patents related to computer chips. It licensed these patents to a computer chip maker - Intel. Pursuant to that license, Intel made chips and sold them to computer makers such as Quanta.

LG tried to milk more revenue from its patents by holding open, in its agreement with Intel, its ability to also demand patent license payments from any computer manufacturer (such as Quanta) who bought chips from Intel.

This practice is called "multi-tier licensing" because the patent owner tries to obtain a patent license fee at various stages in the manufacturing and distribution pathway. Under this practice, in theory, LG could have demanded license fees from the chip maker, the computer assembler, the computer distributor, the retailer and the end purchaser (perhaps you).

Quanta refused to buy a patent license from LG, so LG sued Quanta claiming patent infringement. The Supreme Court ruled LG had exhausted its patent rights by permitting Intel to sell chips that embody the patented technology, so LG could not require patent license payments from companies that follow Intel in the stream of commerce, such as Intel's computer-maker customers.

In its ruling, the Supreme Court foreclosed a possible end-run on patent exhaustion. Some of LG's patents were on a method for processing data rather than on a tangible device.

LG argued a method patent isn't exhausted when you sell something (here, a computer chip) that uses the patented method. Thus, LG argued that everyone following Intel in the stream of commerce needs to obtain a license to use LG's patented method, even if it buys the chips. The Supreme Court rejected this argument, holding that selling an item that embodies the patented method exhausts those patent rights.

The Supreme Court didn't slam the door on multi-tier licensing, however. It held open the possibility that the patent owner could use its contracts with its licensees (the companies that pay to use the patented technology) to preclude patent exhaustionby expressly requiring each company in the manufacturing and distribution chain to pay an additional patent license fee. Yet, as explained below, the Court made doing so more difficult.

I realize forming a good relationship with a good lawyer sounds to many like trying to befriend a pit viper. Yet, whether your lawyer is good can mean the difference between business success and failure.

Few lawyers are top quality. Good lawyers tend to have plenty of work. They also have an above-average craving to forge client relationships that allow them to fully utilize their top legal skills.

Whether you are a client who is easy and rewarding to work with can determine whether you obtain top-notch lawyering:

None of this advice means you must surrender control to your lawyer, or that any lawyer is justified in being a prima donna. A good lawyer knows that he gives only advice and that legal decisions are ultimately business or personal decisions to be made by the client. You just want such a lawyer to make your legal needs the top priority when the inbox is full and vacation is just a few days away.

Did you know you can get the Beanie you bought (or wish to sell) on eBay authenticated? A company called "Peggy Gallagher Enterprises, Inc." (located at BeaniePhenomenon.com) will inspect your Beanie and its "tush tag." If it's the real deal, the company will enclose the Beanie in a Lucite case, place its company seal on the opening, and ship the Beanie back to you with a certificate of authenticity. What a relief!

Seriously, though, the sale of counterfeit goods on eBay is a substantial problem that eBay acknowledges and expends substantial resources to combat. In fact, eBay endorses some goods-authentication firms on its site, such as the Beanie vetter. eBay goods authentication is a growing industry.

Some retailers are not content with eBay's anti-counterfeit efforts and have attempted to use litigation to make eBay itself fully responsible for the sale of counterfeits on its site. eBay just won a major U.S. case but lost two cases in France.

In the U.S., Tiffany, the high-end jeweler, sued eBay in federal court in New York claiming a majority of purportedly Tiffany items sold on eBay are counterfeits. Tiffany asserted various trademark-related claims against eBay.

In mid-July, the court ruled in favor of eBay because eBay took down every item Tiffany flagged as counterfeit and because eBay runs a sufficiently robust program to try to facilitate the identification of fakes. In legalese, the court held that eBay is not "contributorily liable" for the trademark infringement that occurs when a counterfeit item is sold on its site.

Unfortunately for eBay, this American win was bookended by two losses in France.

In June, a French court held eBay liable for the sale of fake Hermes handbags and ordered eBay to pay over $150,000 in damages.

In July, another French court found eBay liable for the sale of counterfeit LVMH luxury products, such as Louis Vuitton handbags. It ordered eBay to pay $62 million in damages and to cease all sales to residents of France of counterfeit and authentic LVMH products.

eBay is appealing the French decisions. I expect Tiffany will appeal the U.S. loss after having spent several million dollars to try the case.

It will take more litigation in the U.S. to settle whether eBay can avoid liability in U.S. courts for counterfeits inevitably sold on its site. Yet, the federal trial court judge in the Tiffany case wrote an impressive and lengthy opinion, so there's a good chance other U.S. courts will follow it.

I won't begin to predict what France will do, either with eBay or anything else.

Regardless, consumers should see the battle between eBay and premium-goods makers from two perspectives.

In the pro-brand-maker perspective, these eBay cases are a battle over whether counterfeit sales online can be attacked centrally. If the maker cannot force eBay to cease auctions of all goods carrying their brands (regardless of whether they are authentic or counterfeit), then counterfeits will be sold online. No maker can catch all the fakes and have eBay take them off auction. New sellers of fake goods will keep springing up even if some sellers are sued out of existence. Also, some people are happy to buy fakes on the cheap.

Yet, from a pro-eBay perspective, these eBay cases can be seen as an attempt to shut down price competition caused by sales of genuine used goods. If eBay is going to be strictly liable to a brand maker for the sale of any fake on its site, eBay's only option to avoid liability may be to block the sale of that entire brand on its site, even genuine used goods.

Tiffany is famous for its blue boxes and its astronomical prices. What are you going to do if you can't see paying $200 to $1375 for a sterling silver Tiffany bracelet?

You could spend days cruising consignment shops. Or, in a few clicks, you could view 80 hits on eBay for "tiffany sterling silver bracelet" with prices running from a $10 to $200. Whether the eBay option continues to exist will impact Tiffany's prices and profits.

Indeed, brand makers are trying to suppress online aftermarket competition in another area. Several brand owners are using litigation to try to stop use of their brand names to trigger Google Adwords ads.

Here, a goods purveyor can pay on a per-click basis to have its ad show up under the "sponsored link" section whenever a selected word or phrase is searched. For example, a seller of used jewelry could pay Google to have a pay-per-click ad displayed whenever someone searches "Tiffany." I see six such ads as of this writing.

In our instant-gratification society, internet sales are huge. Whether a brand-owner's authorized distribution channel is the only visible online distribution channel could have a huge affect on profits and prices.

You've probably seen this hundreds of times on the Web. You happen upon a website that has a generic title, a pretty picture, and no content other than advertising links. The page isn't affiliated with any single company. Why would someone put up this site?

You've probably found one of the millions of websites run by domainers. Due to a recent change in the governing rules of the Internet, domaining might nearly disappear soon, thus making many domain names available for registration by others.

With domaining, you register a domain name and put up a website composed solely of advertising. You hope the page will generate more ad revenue than the cost of the domain name and website.

Cheap prices have come through the "add-grace period." In short, you could register a domain name and get your money back if you cancel the registration within five days.

The add-grace period was intended to allow for withdrawal of mistaken domain name registrations, such as typos. Yet, domainers have exploited this loophole. Domainers often repeatedly drop a domain name within the add-grace period and reregister it, thus tying it up while preserving the refund opportunity.

A domainer often sets up its own domain name registration company (a "registrar" in Net lingo) to be able to register large quantities of domain names as cheaply and quickly as possible. A domainer may be running ads on hundreds of thousands of domain names that are within the add-grace period at any given time.

A domainer uses software tools to hunt for domain names that might draw traffic. The domainer looks for domain names that have come off registration or that might attract traffic due to other reasons, such as proximity to certain words or phrases. Misspellings of the domain names of active websites are popular.

Getting advertising is easy. If you own a sufficient volume of domain names, there are services that populate your websites with advertising at no cost to you. The most popular service is Google AdSense for Domains. You pay nothing to Google and get paid based upon the success of the advertising, which mainly means the number of clicks.

Many complain that domaining sucks up a vast number of domain names, making them unavailable for individualized use by businesses and individuals.

Businesses also complain that domainers often register approximations of their trademarks and then cash in on traffic intended for their websites.

While there is no verified measure of domaining, Bob Parsons, the CEO of GoDaddy.com (a domain name registrar) claims that, in May 2006, while 35 million domain names were registered, only 2.7 million were kept beyond the add-grace period. He speculates that the other 32.3 million were temporarily used by domainers.

You can argue that domainers simply develop unused cyber real estate - dormant domain names. Yet, most Internet stakeholders consider domaining to be a menace.

In response, the entity that governs the Internet, the Internet Corporation for Assigned Names and Numbers ("ICANN"), made two changes in July that will raise the cost of domaining:

Domaining is a high-volume, low-margin business, so these changes may make most domaining unprofitable.

Some domain names generate sufficient traffic to warrant paying the registration fee and tax, so some domaining will continue. Yet, a domainer will no longer be able to take a domain name for a free test drive to see what traffic it generates before making the decision to purchase it.

For that reason, domainers will register far fewer domain names. This should free up more domain names for registration by others.

ICANN has not published an implementation date for these changes. Based upon online comments by ICANN staff, it looks like implementation should occur sometime between November 2008 and early 2009.

Nevertheless, someday soon, lots of domain names should become available for individual development. If you're in the market for new domain names and have been frustrated by poor selection, be ready.

Before diving into the legal news, here's a tip - password lock your Blackberry, especially if you use it for business.

You can password lock your Blackberry by clicking "options" on your main screen, then on "security" or "security options" (depends on the model), then on "general settings." The rest of the process is obvious.

On the same screen where you enable using a password, also set a "security timeout," so your Blackberry will automatically require reentry of the password after a period of inactivity.

In addition to general confidentiality protection, you probably should do this for liability protection if you use your Blackberry for business. As discussed below, most states have enacted data-breach notification laws.

Some of those laws could cover a situation where a Blackberry or other mobile communications device is lost or stolen and the device contains certain types of personal information of others, such as the Social Security, credit card or account numbers of customers or employees.

These laws could require you to give an embarrassing notice of data loss to affected people if you lose your Blackberry. Yet, most data-breach notification laws have an exception when the stolen device is password protected. As long your password wasn't also stolen, using a password could protect you from having to give such notice.

This Blackberry tip comes from data security law, which is the fastest growing area of technology law.

This past spring, Virginia enacted a law that requires giving notice to affected Virginia residents when their personal information is accessed and acquired by an unauthorized person and when this act might result in identity theft.

The new statute allows the Virginia Attorney General to impose a penalty of up to $150,000 per security breach.

Also, the statute may have permitted individuals to sue for some types of damage that can result from a data security breach. That part of the statute is unclear, so the courts will have to interpret it.

At least 44 states have enacted some kind of data-breach notification statute. In addition, at least 47 states have enacted statutes enabling residents to freeze access to their credit reports. Such a freeze could prevent an aspiring data thief from using your credit report information to imitate you.

Some states go further. We might next see a wave of laws that set computer security standards for handling personal data. Nevada and Massachusetts already have enacted such laws.

Data-breach notification laws such as Virginia's don't set data security standards. They just define some consequences if a breach occurs.

Another wave of laws we might see are ones that force retailers who lose personal information (such as credit card numbers) to pay the cost of notifying individuals of data-security breaches. Minnesota enacted such a law. California Governor Arnold Schwarzenegger recently vetoed such a bill.

This proliferation of state laws, with each one having unique facets, is creating some support for a federal law to cover data-breach notification, and possibly also data security and retailer liability.

The fight on the federal level mainly will be over whether the federal law would wipe out ("preempt" in lawyer-speak) all state laws on the same subject.

Many businesses would like to have a preempting federal law to relieve them from state laws they believe are too tough. Many consumer groups don't want preemption because they want each state to be able to impose tougher standards.

Overall, even aside from new laws, businesses are (or should be) focusing on data security issues. Long-standing legal theories are being used with some success to hold liable companies that have data-security breaches. Beyond risk of legal liability, companies fear embarrassment and consequent loss of business.

This is causing businesses to create "chief data security officers" and to create data-security-breach contingency plans in addition to imposing data security measures. It's also causing companies to require contractually that their business partners take full financial responsibility for any data-security breaches they cause.

All of this brings us back to your Blackberry. Your employer may not have told you to password-protect it yet, but you could get both yourself and your company in trouble if you lose it and if it was not password-protected. Why not cut your risk and do it now?

Thanks to a recent court settlement, we just took a big leap forward toward the messianic time when all books will be available for reading and downloading on the Internet. A modern Library of Alexandria could be at your fingertips.

The settlement happened in two lawsuits against Google over its online books project. Google has been scanning into an electronic database parts of the collections of some of the biggest libraries in the world and making the content searchable online via its Google Book Search program. Owners of thecopyrights to these books - authors and publishers - sued asserting copyright infringement.

After three years of litigation, the parties agreed to a settlement that significantly increases online access to books and pays authors and publishers for this access.

I won't bore you with the legal details. The settlement agreement is 134 pages long plus appendices. The court still must approve it. Antitrust issues could stymie or delay it. I assume but can't guaranty that the deal will go through.

The settlement differentiates between three types of books: in-print books, out-of-print books and off-copyright books.

On the Google home page, choose "Books" as the category you wish to search. This takes you into Google Book Search.

You can use Google Book Search to find in-print books by searching key terms, just like a regular Google search for Web content. For example, you can search for books discussing "M Theory" by searching that phrase.

Google Book Search will provide links to where you can buy the book online and a list of nearby libraries that have the book.

If the copyright owner grants permission, you'll be able to see extensive excerpts of the book. The default setting is no permission is granted, so the copyright owner has to turn on the preview feature. This preview will be like Amazon's "Look Inside" feature.

The copyright owner might grant you permission to view the whole book, but this will be rare.

For any part of the book you can see, printing and saving is disabled, although it's still possible for the tech savvy.

Unlike out-of-print books, you won't be able to see more of in-print books on computer terminals at local libraries and universities.

Here the settlement opens things up dramatically. A vast number of books are no longer in print but still are useful or interesting.

Here, you can see a lot from your personal computer and you can see it all if you trek to a local library or university.

On the Internet, as with in-print books, you can find out-of-print books in Google Book Search by keyword searching. Once again, you will get links for online purchase and to local libraries that have the book.

Here's the big change - you'll be able to see extensive excerpts of the book unless the copyright owner takes action to deny preview permission.

You'll eventually be able purchase an entire electronic copy of the book. The copy will be Web-based, so you'll be reading over the Internet. You might have the ability to print parts of the book.

If you go to your local library or participating university, you'll be able to see more.

Each public library will be entitled to have one computer on which you can read the entire content of out-of-print books. In order to have more than one computer with such access, the library will have to purchase a license.

You will be able to print what you see on a fee-per-page basis. Google will cover these fees for a while - for the shorter of the first five years or first $3 million.

Universities don't get free computer access to full copies of out-of-print books but they can buy access for a per-terminal fee.

Because these books are off copyright, you already can view them in their entirety online using Google Book Search. It provides links for buying online and to local libraries that have the book. In some cases Google Book Search also permits you to download a copy of the book.

Our U.S. patent system is in terrible shape. I’m concerned about the effect this has on the U.S. economy because patents are the primary way of capturing the value of technological innovation.

Despite our patent mess, the rise in U.S. patent applications demonstrates the value placed on owning U.S. patents.

In the federal fiscal year that ended on September 30, 2008, over 496,000 patent applications were filed with the United States Patent and Trademark Office (“USPTO”). Application filings have increased about 7% per year over the past four years while the U.S. gross domestic product increased 3.4% per year during that time. Overall, the number of annual U.S. patent filings has increased 335% over the past 20 years while U.S. GDP has increased 183%.

The biggest problems with our patent system are slowness, expense and uncertainty. Let’s examine them one at a time:

Slowness. The USPTO reports that the average time from patent application filing to patent approval (“average total pendency” in patent lingo) is just over 32 months. Computer/software patents have an average total pendency of over 42 months, and telecommunications patents have an average total pendency of over 43 months. These measurements don’t count the 3-6 months it takes the USPTO to issue an approved patent.

You have no patent rights on an invention until your patent is issued. If your patent takes three years to issue and your technology will become antiquated in that time, patenting won’t capture the value of your invention.

Also, the longer your patent application is pending, the more time there is for it to be affected by changes in the law occurring after you filed it.

Within the past 32 months (the current average total pendency), there have been significant changes in U.S. patent law. The courts have raised the standard for what makes an invention obvious and, thus, not patentable. They have somewhat narrowed the scope of what can be patented, mainly in the areas of business methods and computer software. They have raised the standard for what it takes to obtain a court order stopping patent infringement, which somewhat lowers the value of patents.

So how will patent law change over the next two to three years? One can only speculate. But the patent application you file today will be governed by those future changes. This creates uncertainty as to the value of applying for a patent.

Expense. Applying for a patent can be expensive, but that cost is insignificant compared to the cost of enforcing your patent through patent infringement litigation.

Many insiders call patent infringement litigation “the sport of kings.” According to a 2007 survey conducted by the American Intellectual Property Law Association (“AIPLA”), the average legal bill for litigating a patent infringement case where under $1 million is at stake is $600,000 in attorneys’ fees and costs. If the amount at stake is in the range of $1 million to $25 million, the average legal bill is $2.5 million. For cases where over $25 million is at stake, the average legal bill is $5 million.

With rare exception, these prices make patent infringement litigation an option only for large corporations and for special business ventures (pejoratively called “trolls”) formed to gain value from patents by selling patent licenses and suing targets that refuse to buy them.

Some law firms take patent infringement cases on a contingency fee basis, but these firms generally take such cases only from experienced, sophisticated trolls.

Patenting itself also is expensive. According to the 2007 AIPLA survey, the average attorneys’ fees for a patent application on a “minimally complex” invention was $6500. In the electrical/computer field, the average cost was $10,000 and in the biotechnology/chemical field it was $12,000. These figures don’t include patent application fees, patent issuance fees and patent maintenance fees.

Worse yet, it frequently will cost more on average to obtain a well-crafted, detailed patent – one that might fare well in litigation and that should be more intimidating to potential copycats.

Uncertainty. Uncertainty arises at many stages in the patent prosecution and enforcement timeline. Each element of uncertainty slices away a little of the patent’s value.

I noted above how changes in the law occurring while your patent application is pending could undercut your application. Yet, even if you get a patent and successfully sue an infringer, uncertainty remains.

All appeals of trial court decisions in patent cases go to the Court of Appeals for the Federal Circuit. This court reverses about 35-40% of appealed patent decisions when the issue is how the patent should have been construed. By comparison, in non-patent civil cases (in other words, not counting criminal cases), the average rate of reversal on appeal for all federal courts is about 12%.

This high reversal rate in patent cases encourages appeals, which protracts patent enforcement and raises its cost.

There are various proposals before Congress to fix these problems. These proposals are deeply controversial. Yet, something must be done to repair our broken U.S. patent system.

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