You may be wondering…
Now that Customs and Border Protection (CBP) and the Department of Homeland Security (DHS) have said they will abide by the court orders banning implementation of the Executive Order (EO) regarding travellers from particular countries, why are the lawyers still at the airports?
First and foremost, because the potential for abuse or, to be more charitable, differing opinions as to what the CBP should and should not do about these travelers is still very real. We are watching, we understand the legal system, and bureaucracy does not intimidate us. Attorneys are great observers and monitors in this situation. Having these teams in place at the airports is also a good way to get information about how travelers are being treated at foreign airports by the CBP. They have agents at many international airports, and may try to intercept people from boarding in the first place. Because airlines can be fined if they let people board flights to the US who aren’t eligible to enter, they are subject to pressure from the government.
Secondly, because there is still a great deal of fear, doubt and confusion in the minds of the general public and particularly in travelers from other countries who don’t know what’s going on. They hear conflicting reports, they see wild things on Facebook, and they’re scared. Again, a calm, purposeful group of people in suits explaining things to them is a valuable resource. We won’t be able to indefinitely sustain an operation just to reassure people, but it’s certainly part of the purpose.
Finally, because this organization is valuable training and provides continuity in case the EO is reinstated. With one partial exception, all the court orders are TRO. This stands for Temporary Restraining Order. Emphasis on the Temporary. This is how a court stops people from doing something, pursuant to the request of someone bringing suit, that it seems very likely that the person suing will win in court about. They’re hard to get, and if you do get one, it’s very likely that you’ll win and get a PI – a Permanent Injunction. In fact, that’s literally one of the requirements to get one in the first place. (Another is that some kind of irreparable harm has to be imminent if the court waits for the suit to be finished. “Being sent back to a country where you’re in danger” definitely counts.) But it is not automatic or assured. One or more of the courts which have issued TRO may allow them to lapse and/or find that the government was in fact entitled to do what the EO says, which means no PI will issue.
Even if the American Civil Liberties Union (ACLU) and the other people and organizations do get PI, the decisions of the District Courts which are granting them – those are the trial courts at the Federal level – are subject to appeal. First it goes to a Federal Court of Appeals, where it will be heard by a three-judge panel. That panel can:
- Sustain the order (and keep the PI,)
- Reverse it (and negate the PI) or…
- Remand it to the District Court for reconsideration (which means that the PI will likely be negated, but the District Court will get a chance to re-institute it if they do things “right” this time.) They can also just refuse to hear the appeal, which in practical terms is the same thing as sustaining the District Court’s decision.
Whatever happens in the Court of Appeals, the party who loses can ask for a hearing “en banc,” which means that instead of a three-judge panel all of the judges on the Court of Appeals hear the case and vote again, or they can appeal directly to the Supreme Court. If they get an en banc hearing, whoever loses that can then also appeal to the Supreme Court. At any stage of this, the order can be sustained, reversed, and/or remanded.
Things get really interesting when you find out that each Court of Appeals oversees several states, but that the decisions of one Court of Appeals are not binding on the Courts of Appeals that oversee other states. Only a ruling from the Supreme Court binds all lower courts. So it’s entirely possible that in the very near future, we could have some states (and the airports and Customs officers operating there) where the ban is in force, and other states where it is not. (This is called a “circuit split,” and it’s one of the main reasons cases make it to the Supreme Court. But that takes a while.)
So there are a lot of things that could happen which could put the ban right back in force in some places, or everywhere. If the airport legal clinics completely dissipate, they will have to be rebuilt from scratch if any of those things happen. So the prudent thing to do, and the plan so far as I know, is to keep them operating, even at a lower level, until we have a better understanding of how things are ultimately going to shake out. So please, keep listening, watching, and volunteering if you can. Donations, even small ones, will be greatly appreciated on an ongoing basis for the foreseeable future. Some groups need meals, some need tech, and many organizations will need money to defer expenses. You can follow @Helpthelawyers for links and information.
I know that every single expression of support, from lunch for twenty to a homemade cookie or just a handshake, is very encouraging to the people working in those airports, and everywhere else. Thanks for your support.
I hurt my back (and broke some bones in my foot) a few weeks ago: I have scarcely left the house since then. Just as I was starting to feel better, Friday’s Executive Order regarding immigrants from seven particular countries was passed. I don’t consider myself part of a “Resistance,” and I am not an open-borders advocate. But the way in which that EO was implemented was, in my opinion, an insult to the rule of law. And if the rule of law fails we are in graver danger than a thousand terrorists could hope to cause us. So I volunteered for an afternoon shift with @ORDLawyersHQ, the pro bono legal observation and assistance group operating out of O’Hare International Airport in Chicago.
Fortunately, my back tolerated it (though I was about out of gas by the time my shift ended) and I didn’t have to walk around, so I feel okay about it. (And yes, I’ll be back in the office soon. ) I’m very gratified and happy to have participated in this effort. As one Twitterer observed, our new President has done the impossible: he’s transformed lawyers into superheroes. And the people running this are heroes. Just the value of their time is incredible: I suspect that the team I was on would bill in or nearly in the five figures per hour. That means my shift constituted probably at least fifty thousand dollars worth of legal fees. That’s one shift, one day, one airport. Plus a major law firm donated a nice printer and a free Wi-Fi hotspot for us to use and sent one of their senior IT people to set it up. Donations of food and coffee, if you’ll excuse the expression, poured in.
Thanks to Eastman Egg Company and the Goddess and the Grocer, as well as Metropolis Coffee. (I don’t drink coffee, but everybody else was happy.)
What was it like?
First of all, I did my shift on Thursday. It was far from the chaos of the weekend and early in the week: CBP/DHS had reversed some of their harder-line positions and the court orders were kicking in. Lawyers can organize like nobody’s business and protocols and allocations of responsibility were pretty well implemented. We had only two serious “possible risk” situations during my shift: one resolved shortly before I left and the other was a private visa matter unrelated to the EO. We had some situations of concern which were due to occur this evening: I don’t have any information on them.
I had volunteered to be a shift leader/point of contact: the outgoing shift leader gave me some protocol documents and showed me all the responsibilities that needed to be allocated. I thought I was going to be the only shift leader but an amazing attorney who had already done a shift lead jumped in. (Hi, Rebecca!) We sort of naturally settled out that she handled most of the interfacing with the various matter managers, and I mostly did logistics. We cooperated and consulted quite a bit on some things, including on when to kick things higher up the chain.
The most visible matter was the canvassers, those people you’ve seen pictures of holding signs asking travellers if they need help. What may not be clear from most reports is that those people are standing next to where passengers leave security: the canvassers can’t go into the secure areas near the jetways. We were usually contacted by friends and relatives who were concerned that the people who they were meeting were not coming out of Customs after their planes landed. They were under the guidance of a canvasser leader (Hi, Sharada!) who I texted when I had any information on when a flight with potential detainees was incoming.
Aside from being a point of contact, I was also monitoring incoming flights with a very slick dynamic document someone had set up that constantly fed me information on arriving international flights. When one was from a country that seemed likely to have potential detainees, we would take extra care to try to see if anyone needed help. We also asked people coming off the flights if they had seen any unusual activity. If so, they would answer a short questionnaire either with a canvasser or by coming back to our activity center and talking to the intake manager.
The intake manager was fantastic. He not only managed all the data we got from travellers and waiting friends and relations, he reviewed our documentation in response to information requests from multiple groups, including one looking for potential violations of the orders for a possible Motion to Compel. (Hi, Nima!) Also, he spoke Farsi. A really versatile and helpful fellow!
We also had a social media person who was tweeting and posting to the Facebook group. I was sort of surprised how many attorneys (most of whom were much younger than I) didn’t use Twitter and weren’t even familiar with how it worked. Sometimes I forget that I am a tech attorney, as well as a big old geek, and other people just don’t care about this stuff. That went well, although we had some Tweets from people asking for help with the aforementioned private visa matter. That was tough: our options were limited.
At one point, I talked to a reporter from the Wall Street Journal, although I had one of our very able immigration attorneys (Hi, Yvette!) listen to what I said with instructions to stop me if I said something stupid. Fortunately she didn’t have to jump in, although she also answered some of the questions for which I was very grateful. We had reporters from the local NBC affiliate doing bumpers every so often, though so far as I know they didn’t interview any of us today.
UPDATE: The reporter, Tammy Leitner from NBC 5, did show us at the end of a story on a local artist affected by the EO. The intake manager, Nima Taradji, is also interviewed in this segment. Ms. Leitner, by the way, was very friendly and courteous when she was filming in our clinic.
— Tammy Leitner (@TammyLeitnerNBC) February 2, 2017
I also talked to a representative of a local Congressional representative, who was trying to help a constituent (again, the private visa matter.) She was very appreciative of the work we were doing and offered the Congressman’s support if we could use it.
The afternoon flew by, though we weren’t overwhelmed and there was time for discussion of the situation in general as well as some rather sneaky new tactics one of the people pulled out for secondary inspection told us about. I genuinely enjoyed meeting and talking with every single attorney and volunteer. There were several non-attorney volunteers who were interpreters and also helped with canvassing.
One thing we did not do was provide legal advice directly to anyone, and we certainly didn’t prepare any habeas motions or anything like that. By this point, that is being handled by people higher up the chain, including the ACLU and some dedicated attorneys at large law firms who are receiving our intake information and taking necessary actions. Sitting on the airport floor filing habeas motions was an emergency thing, assuming it actually happened (I wouldn’t be surprised, but I don’t know.) It’s no longer necessary: we were functioning as much as legal monitors and community outreach as actual immigration advisors.
Customs and Border Patrol definitely knew we were there: we didn’t interact with them during my shift, but the incoming shift leader (Hi, Alex!) said he had on an earlier shift. He was considering asking them about the matter that resolved right before I left, but fortunately it resolved before that was necessary. And at one point I stepped across the hall to get a drink at McDonald’s, and the two men ahead of me were uniformed CBP agents.
“This could be interesting,” I thought.
One of them turned around and saw my badges. I nodded and said, “Good afternoon, gentlemen. I hope things are going smoothly.” One of them responded very politely, “Afternoon. They’re going pretty smooth.” Things were quite cordial. Some police also stopped by at one point and asked if we knew about any planned protests. They were very friendly about it. We told them protests weren’t really our department and we didn’t know of any, but it seemed quite possible.
So, in summary, volunteering at the airport, at least at O’Hare, is not exactly something out of a legal drama, but it was good, useful work and I’m glad I did it. If you are an immigration attorney and/or an interpreter, please consider volunteering if you live near an international airport or other port of entry. Otherwise, you should still think about it, but be patient: right now they have plenty of volunteers and interest will probably drop off. Unfortunately, the need will probably not drop off as fast, so please keep in touch with your local volunteer group: they may need you well after the next crisis pulls media attention away from this one. If you are interested, here are some links:
O’Hare Volunteer Group: @ORDLawyersHQ on Twitter, http://www.signupgenius.com/go/5080d4cada92ea6f58-ordattorney to sign up as a volunteer.
General info: @Helpthelawyers on Twitter, current group information:
Hang in there, everybody. It’s going to be a long haul. But we’re all in it together.
(If you have questions, feel free to ask them in the comments and/or drop me an email.)
So I was again invited to be a panelist at MAGFEST, and not being an idiot, I immediately accepted. I again had a marvelous time, hung out with cool people, and hopefully helped a few. Herein, my comments on this year’s amazing-palooza.
- My panel, “How Not To Make a Game: Revenge of the Lawyers,” was a huge hit. I say that not just to make myself sound good, but because I have photographic evidence:https://twitter.com/LoadingLaw/status/817549252067033089
Note that that’s from several minutes before the panel started. It was SRO for most of the actual panel, and we kept going for twenty minutes after in the room and another half hour outside in the hall.
It is very flattering to me that one of the comments on the MAGFEST app was “100% the most had-their-sh**-together panel at mag.” However, it is also very funny because one of the other panelists and I literally made up the panel format on the flight from Chicago that morning and the other two agreed to it at lunch. (The panel was at 3.) If you attended the panel and have more questions, or, heck, even if you didn’t, please feel free to contact me and we can continue the conversation.
- Shoutout to my other game law friends, including Sam Castree (this is all your fault, Sam – see him @IndieGameLawyer,) Ross Hersemann (@LoadingLaw,) and Joe Neuman (who is a lawyer at EA) for being on the panel with me, Ryan Morrison (@MrRyanMorrison) and Ma’idah Lashani (@BANParty) of Morrison/Lee, Scott Kelly from Banner & Witcoff, and all the others whose names I’ve misplaced (told you I would.) It’s a small community, but a very, very cool one.
- Speaking of Ryan Morrison, another shoutout to him and Sheena Perez (@psychobilly2422), Travis Rupp-Greene (@stealthymoose), and Phil Didn’tGetHisLastNameButEverybodyCallsHimMowtenDoo (@mowtendoo) for the “Video Game Industry Real Talk: The Indie Sequel” panel. Fabulous information, good times. And thanks especially for this exchange:Ryan: “I’m going to ask Marc, who’s in the audience and is a video game patent lawyer, to say something about that question.”
Me: “Yes, thanks, there are three or four of us.” *audience laughs* *answers question*
Ryan: “Thanks. By the way, he wasn’t really joking. There’s like 12.”
- Jax and Tasker and Damocles Thread and Overwatch LARP and Witcher LARP and the Solemn and Venerable Goth Court. Let the record show: Wow. Just wow. Last year this merry band of magicians introduced me to LARP and it was amazing. This year, it was just as amazing and the people both old and new were too.
Friday, we did “The Fall of Overwatch,” a LARP based on some of the game’s backstory. Somehow I ended up not only as a combat engineer, but as head of security for Overwatch Central. Running around yelling “Holographic Display!” and reminding everyone that this was the 21st century and we had portable communicators just never got old, at least for me. (The ST may feel differently. ) Despite never having played, I got into the story immediately thanks to the skill and hard work of the storytellers. They made excellent mechanics choices and allowed all of us to become super-soldiers, etc, with just a few key choices and random assignments.
Then, the amazing Jax did “Goth Court.” I don’t know that I can put into words how something so wrong could become so right. I played a Normie who accidentally let my Goth neighbor’s pet snake eat her pet rat (One of the highest praises I have ever received: “Are you a Goth? Somebody get this man some eyeliner.”) as well as an expert witness in both Goth Dry Cleaning (of COURSE there is) and Gothic Interpretive Dance (of COURSE there is.) Jax was a little worried in that there were like four or five actual lawyers in the LARP and we’d laugh at her. I knew she was wrong and as usual, I was right. It was fantastic. Extra points also to Lauren the Bailiff (“I sentence you to my bailiff.”) and Abby the Clerk of the Court (“The record will show: Whoa.”)
Saturday, we did “The Witcher: When the Wyvern Wills,” a Witcher-based LARP. I haven’t played any Witcher games, either (yes I am lame shut up) but we did one last year and it was fine, and so was this one. While Ryan may have had the most amazing characterization (“I’m trying to see things from the perspective of the little people”) I consider myself to have won, because a) nobody realized I was the one who woke up the wyvern, and b) the person I wanted to get the throne actually got it, and c) NOBODY REALIZED ANYTHING I WAS UP TO THE ENTIRE GAME. Plus I got to use my magic power which was cool. (“I hit him ba…” “Oh no, you don’t.”)
And in particular: Ryan and Marshall, so good to see you again. Lauren and Aaron, it was like meeting two (awesome) old friends for the very first time. Those of you whose names I didn’t catch or don’t remember (warned you,) you all rock.
I’ll briefly recount the other panels I attended as well. I will be covering the indie game booths I reviewed in separate posts elsewhere, but in general, I was really pleased with what I saw. Keep doing what you’re doing, guys.
“Lights, Sound, Movement: Taking Cosplay to the Next Level with Arduino:” I have mixed feelings about this panel. The description made it seem a lot more intro-level than it was. It was really interesting and gave me some ideas (I really want to make a Diskos. ) but the flow was choppy and random, and given the size of the crowd I suspect there were a lot of people for whom they skipped way too many steps before diving into coding the controller.
“The Morality of Worldbuilding:” I really enjoyed this panel. Despite the fact that the panelists were all clearly of a particular position on the issues, they were extremely evenhanded in their approach. As someone who has been dealing with the fact that a few pinheaded players will ruin a massive online game system for everybody if you let them for many years, it’s interesting to see that while the stakes have changed, the basic problems have not.
“Video Games: Unique Among Media (Just Like All Other Media:)” Loved it, and not just because Sam was on it. Starting from the old question, “Why do video game movies suck?” the panel explored the differences between pop culture media in what they can and can’t do well, poorly, or at all. Hopefully it gave the creatives in the audience some food for thought about what medium a particular story, or way to tell it, would be best suited for that purpose.
“The Rise of Mobile Gaming:” This panel was… confused. The people on it were fun, and they obviously love gaming. Hard to find fault with that. But I’m not really sure I understood what it was they were trying to accomplish. Certainly some interesting facts and figures (I did not know that the first smartphone was made by IBM) but it needed more specific direction to really be good, in my opinion.
I honestly did not interact with anyone the ENTIRE WEEKEND who I did not enjoy interacting with, so if you got left out, blame my bad memory and eight hours of sleep. (Sounds like a lot… but that was over three days.) Thanks so much, and see you next year!
Software patents are a pretty confusing topic, and that’s if you’re a patent attorney who understands software. If you’re not, it goes way beyond confusing. The situation has been confused since the Supreme Court ruled in a case called Bilski v. Kappos, in which it basically said software patents were okay, unless they weren’t. That caused some problems. So, ever helpful, more recently the Supreme Court ruled on a case called Alice Corp v. CLS Bank International, which could be read as saying that software patents aren’t okay, except when they are. So. That clears that up, right?
Okay. More details are in order.
The problem, fundamentally, is that you can only get a patent for what patent lawyers call patentable subject matter. Ideas, by definition, are not patentable subject matter. (Nor are they artistic creations, which is why, to oversimplify somewhat, you can neither patent nor copyright an “idea.”) The laws of nature, logic, and mathematics are, likewise, not patentable subject matter. To be patentable subject matter something must be a “process, machine, manufacture, or composition of matter.” We usually refer to patents for a process as “method” patents, in that one patents a method which comprises (“comprises” is how patent lawyers say “is made of, consists of, or otherwise is composed of”) a series of specific steps which arrive at a specific result. Software patents are by definition method or process patents: a patent on a machine which is incidentally run by software is not a software patent: it’s a machine (or device) patent.
Many patent lawyers, including the author, will usually include claims on a machine which runs software which embodies the method in a patent application as well as the method itself, to try to obtain the broadest possible protection (and in case later the Supreme Court just says, “You know what? Software patents. Just not okay, period.”) But in the end it’s about the method.
So Alice (You thought I forgot, didn’t you?) set forth a new test which we are supposed to use to evaluate whether a particular method, or software incorporating it, is patentable subject matter. Or rather, it stated that a test it had previously established to determine whether a “law of nature” was patentable subject matter applied to method patents generally. (This case was Mayo Medical Laboratories, et al. v. Prometheus Laboratories, Inc.) Here are the elements:
First, does the patent claim an abstract idea, like an algorithm, that is entirely separable from any physical embodiment? For software patents, the answer to this is almost always going to be “yes.” Which means the second part of the test applies.
In the second step we try to find out whether the patent adds to the abstract idea”something extra” that embodies an “inventive concept.” If there is not, then the claim does not address patentable subject matter, and the patent fails. If it does, then we go into the normal patent tests of novelty (Is this already known to the world?) and unobviousnes (Would a person of ordinary skill in the relevant art consider this an obvious solution to the problem being addressed?)
Here are a few comments the Supreme Court made to try to make this clearer:
- A mere instruction to implement an abstract idea on a computer “cannot impart patent eligibility.”
- “Stating an abstract idea ‘while adding the words “apply it”‘ is not enough for patent eligibility.”
- “Nor is limiting the use of an abstract idea to a particular technological environment.”
So the question of the hour is, is whatever you, the intrepid software developer, wants to patent an abstract idea, and if so, have you come up with an “inventive concept” which makes it patentable?
Spoiler: It very likely is, and you very likely have not. I hate to be a downer, but them’s the odds. That doesn’t mean you shouldn’t ask a patent attorney to review your invention, nor does it mean that they will automatically tell you it’s not patentable. But prepare yourself for a negative response, and then anything else will be a pleasant surprise.
How do you know whether you have added an “inventive concept?” In the context of software patents, this seems to be evolving in the direction of a “technological improvement,” which of course seems to be somewhat redundant with the “novelty” requirement, but nobody said this has to make sense. Here’s a very, very rough rule of thumb: if your invention performs some task in a way which is different from the way in which that task has historically been done, you may have added an inventive concept. If it performs some task in a way which a person of ordinary skill would see as actively less advantageous than the historical approach, but in fact improves the solution to the task, you have a very good chance of having added an inventive concept. Contrarily, if you are simply doing something which has not been done historically, but which simply implements a straightforward solution to a novel problem, you very likely have not added an inventive concept.
Suppose, for instance, that nobody had ever made a “po-kee-no” computer game. (That is, a computer game which implemented a known game which is a combination of poker and keno.) To make such a game, you would need an algorithm which implemented the rules of po-kee-no in such a way that a computer could evaluate any given po-kee-no “hand” and determine the payout. No matter how clever your algorithm, it in the end would be an abstract idea (“the rules of po-kee-no, evaluated by a computer”) and would not include any inventive concept since you did not invent the rules of po-kee-no nor the traditional approach to converting game rules to compute algorithms. So no patent for you!
However, further suppose you had discovered that while it is not part of the rules of po-kee-no, it is much faster and more efficient to evaluate a po-kee-no hand by first looking to see if there are any jacks in it. Mathematically, this makes no sense (and, I hasten to add, it’s not actually true.) So while it is still an abstract idea (“look for jacks first,”) it contains an inventive concept which is not suggested by either the algorithm (“follow the rules of po-kee-no”) or the traditional approach to implementing game rules on a computer (“turn the rules into mathematical/logical statements and evaluate the statements.”) So there is a good chance that a method of playing po-kee-no on a computer which looked for jacks first would be patentable under Alice.
For those of you who are game developers, here’s a link to another little article on some game-specific Alice-type decisions.
Note that more than eighty percent of the patents adjudicated after Alice have been found invalid!
At the end of the day, there is a whole host of other questions which come into the analysis of whether to patent a software method. (Including whether you have the funds to support both the application process and any necessary enforcement proceedings.) But at the heart of it, be honest with yourself about whether you have really created a technological improvement, which is a very high bar to clear, or whether you have just come up with a kick-ass implementation, which is nothing to sneeze at even if you can’t patent it. I hope that gives you a sense of the current thinking of patent attorneys regarding software patents. As always, questions and comments are welcome.