Total Ban on Tattoo Parlors Unconstitutional

The 9th Circuit recently held that a total ban on Tattoo Parlors by the city of Hermosa Beach is a violation of the 1st Amendment.  "We hold that tattooing is purely expressive activity fully protected by the First Amendment," wrote Ninth Circuit Judge Jay Bybee.  "And that a total ban on such activity is not a reasonable `time, place, or manner' restriction." 

Hmmmmm, I wonder if Judge Bybee is sporting a tattoo or two himself?

Nominate an Outstanding Technology Student Today: 50 For the Future

The Illinois Technology Foundation, a Chicago-based non-profit organization dedicated to fueling the technology talent and human capital pipeline through facilitated collaboration between academia and industry, has begun accepting nominations for 50 for the Future, an event honoring Illinois’ most promising technology students.

The event, now in its fourth year, is designed to provide students using technology in innovative ways a means to excel by connecting them with business leaders early in their academic careers. The program is open to candidates enrolled in institutions of higher learning throughout Illinois.

Over 30 of the region’s top technology companies, supporting organizations, and institutions of higher learning have become involved in the competition, offering their C-level executives as judges.

Students who win the award will receive recognition at an April event attended by the competition’s judges and nominators, have access to prospective employers via round tables, web seminars and mentoring programs through the Illinois Technology Foundation, and will have preferred status for limited-capacity activities.

To find out more information or to nominate an outstanding technology student, visit www.50forthefuture.org.

The 10 Legal Mistakes That Can Destroy A Mobile Marketing Campaign and How to Avoid Them

I'm proud to be a guest blogger at Tim Cascio's Mobile Marketing, Monetization and Methods blog. Tim's blog is a great resource for mobile marketers. He also co-chairs the dynamic Mobile Visionary Roundtable at the Illinois Technology Association. Here's the link. Hope you enjoy it.

http://timcascio.wordpress.com/2010/02/08/the-10-legal-mistakes-that-can-destroy-a-mobile-marketing-campaign-and-how-to-avoid-them/

Does the First Amendment trump the Right of Publicity in Advertising? - Part 2 and 3

Last year, American Apparel used the First Amendment as a defense in Woody Allen's suit against the company for the unauthorized use of his image in an ad campaign. The case settled on the eve of the trial with Woody Allen receiving $5 million.

Now, PETA has publicly stated that the First Amendment protects its right to use Michelle Obama's image without the First Lady's permission in a recent ad advocating a "Fur Free" livestyle.

Finally, Weatherproof agreed to remove its ads containing a picture of President Obama from its billboards after speaking to White House representatives who voiced displeasure at the use of his image in an ad. WSJ's Law Blog comments that it would have made an interesting case if Weatherproof didn't relent and the Obama White House had decided to file a law suit.

I wonder what the FTC position on the ads given its new guidelines regarding endorsements and testimonials? Are the advertisers misleading consumers when they use celebrities images without permission? Are the ads deceptive?

The Bilski Business Process Patent Case

The US Patent and Trademark Office website, lists the questions presented in the Bilski Patent case that is pending before the Supreme Court. The case will be argued on November 9, 2009. The Electronic Frontier Foundation also has a nice summary of the issues and the ramifications for the technology community.


QUESTIONS PRESENTED:

Whether the Federal Circuit erred by holding that a "process" must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court's precedent declining to limit the broad statutory grant of patent eligibility for "any" new and useful process beyond excluding patents for "laws of nature, physical phenomena, and abstract ideas."

"Whether the Federal Circuit's "machine-or-transformation" test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect "method[s] of doing or conducting business."

Is Chicago Now the 14th City, Technically Speaking?

Several tech leaders banded together to write a response to Greg Burns' column in the Chicago Tribune, where he states that Chicago falls short in tech leadership and focus.

Burns starts his column with the connotation that the $1.2 billion sale of SPSS to IBM is BAD news. In most markets, a local tech company that is purchased for over $1 billion is a major success story. But here, it's another reason to kick ourselves (or for the Trib to kick the tech community again).

Here's the well worded response, which outlines the many resources available to support and lead the tech community in Chicago.

Turning Regional Strengths Into a Global Technology Powerhouse

When a city is known for its broad shoulders, and when a region is known for its work ethic, the status quo does not go unchallenged. Today public officials, private industry executives and academic centers of excellence leaders are collaborating toward a common goal: to make Chicago, Illinois and the surrounding Midwest one of the top technology and life sciences centers in the world. We are cultivating venture capital firms willing to finance startups, increasing public sector support, and combining talent and resources to drive the region’s growth.

We are confident that our region will improve its ability to translate the amazing quality, breadth, and depth of scientific research conducted here into an even more vibrant technology-based community, including the launching and nurturing of startup companies. Our respective organizations, along with other private and public sector leaders, particularly the past and current directors of the Illinois Department of Commerce and Economic Opportunity (DCEO), will accept nothing less.

Fortunately we are starting from an often-underappreciated position of strength. Our universities and research centers are world-class assets, as are our global information technology, medical device and biopharmaceutical corporations. When local startups mature and either acquire other companies or become acquired themselves, they represent a desired and healthy evolution for our community. It is only through this process that a sustainable technology ecosystem can develop.

With an eye toward future growth in employment and tax revenues, Illinois Governor Pat Quinn last month approved the state's first capital and infrastructure program in a decade. The package directs approximately $300 million to science and technology investments, and provides several hundred million dollars more for university-based construction projects. The capital plan is expected to create or retain 439,000 jobs in Illinois.

How are we contributing to the growth of our region? Here are just a few examples:

• Since its launch in June 2007, iBIO’s PROPEL programs have helped 48 formation-stage and early-stage life sciences companies by providing entrepreneurs with access to specialized resources and expertise. The iBIO Institute helps Illinois high school teachers incorporate biotechnology into their curricula, and encourages students to explore career opportunities in the life sciences.

• The NanoBusiness Alliance is placing our top science, technology, engineering and mathematics (STEM) students in research internships in Chicago-area nanotechnology companies to inspire our best and brightest students to stick with careers in science. It has also relocated its national conference to Chicago, bringing nanotech companies from all over the country to Chicago for local industry to engage.

• The ISTC is fostering public-private partnerships to develop and execute R&D projects, advocating for funding for R&D initiatives, and collaborating with public and private partners to attract and retain R&D resources and talent in Illinois.

• ITA communicates with some 3500 technology companies in Illinois who are engaged in the community, and participates directly in strategy development for many of these companies. The ITA also manages Chicago’s TechNexus, a clubhouse of sorts for the Illinois technology community. Each month, more than 1500 executives interact through the program, and 30 TechNexus companies have attracted more than $27 million in investment capital.

• Celebrating its 10^th anniversary, World Business Chicago has worked in concert with the public/private sector, and alongside our university partners, to foster the attraction or expansion of hundreds of Chicago-area technology-based firms. We navigate the site selection process for businesses by providing economic and industry data, state and local incentive information, and site location assistance to current and prospective Chicago companies. By working with our area’s leaders to aggressively promote and market Chicago’s strengths as a global technology hub, world-class companies from Boeing to NAVTEQ, Orbitz to CareerBuilder, Motorola to US Cellular call Chicago their home.

Illinois residents and business are fortunate to have a first-rate Congressional delegation that works to ensure investment comes home. Thanks to the number of technology-savvy supporters increasing in Springfield and Washington, and with new public-private partnerships forming constantly, Chicago and Illinois will build upon their demonstrated strengths to create new technology-based solutions in industry, medicine and agriculture. In so doing, we will create new jobs and contribute to a stronger economy in the region and nationwide.

Our organizations couldn’t exist without the active support of private businesses and public research centers, but that doesn’t stop us from aggressively pushing them to accept even greater responsibility for helping Illinois earn its rightful place as a global technology leader. As we dedicate our organizations to the vigilant pursuit of excellence, we encourage our friends and colleagues in the media to celebrate the successes occurring in our backyard. Our businesses and tax base would surely benefit if the world regularly heard about the innovations that emanate from Illinois. We also call upon the business community to apply their broad shoulders and renowned work ethic to this critically important objective. Together, we will leave the status quo behind and create a new and exciting future for Illinois, the United States and the world.

Fred Hoch, President

Illinois Technology Association (ITA)

Dan Lyne, Director, Technology Development

World Business Chicago (WBC)

David Miller, President & CEO

Illinois Biotechnology Industry Organization (iBIO)

Sean Murdock, Executive Chairman

NanoBusiness Alliance

Matthew Summy, President & CEO

Illinois Science & Technology Coalition (ISTC)

Best Efforts - Friend or Foe?

I draft a lot of agreements. I like writing and I enjoy working with business people to document the specific terms of a transaction. It's not always easy and can involve a bit of guesswork to get going. However, it is satisfying when, after of few rounds of back and forth, voila, the party's agree on a final version and a new business relationship is launched.

Occasionally, I'm tasked with defining the indefinable. The parties want to document their agreement, but factors are unknown or they honestly can't state with certainty what will happen during the performance of the agreement. This is when our old friend, the "best efforts" clause comes into play. The parties propose using their "best efforts" or “commercially reasonable efforts” to address these unknown future factors.

While the various types of "efforts" clauses can be a convenient stop-gap measure, Lawyers often cringe at using the term. Courts have created a perfect storm of uncertainty by determining that "best efforts" clauses are indefinite, but not so vague as to be unenforceable. Illinois is an exception. Here, the courts have determined that best efforts clauses, without a further definition in the contract, are unenforceable.

According to Kenneth Adams, an expert and author on contract drafting, the conventional wisdom among corporate attorneys and business people is that “best efforts” is the most onerous provision and other “efforts” provision (e.g. “commercially reasonable” or “reasonable” efforts) are less onerous. However, courts have not followed this interpretation when deciding cases.

The case law, in general, has held that “best efforts” do not require a party to make every conceivable effort to fulfill the contractual provision. Rather, “best efforts” requires good faith by the performing party. Some courts have held that the slightly higher standard of diligence applies. Diligence is defined as “the attention and care required by the typical person in a given situation, or industry standard performance, if a business is obligated to perform”. Both of these standards, good faith and diligence, are based on “reasonableness” – what a reasonable person or business would do in a similar situation. Therefore, whether you use the term “best efforts”, “commercially reasonable efforts” or just “reasonable efforts”, the court often applies the same standard.

“Reasonable” is a relative term and applies to that which is appropriate for a particular situation. Under the law, this is a fact-based determination that is best made by a jury. If there is a contract dispute, this means, worst case, expensive litigation and, best case, protracted negotiation of a settlement.

To avoid expensive litigation, protracted settlement negotiations or unenforceability in Illinois, the parties to a contract should include a clear set of guidelines for measuring performance of “best efforts” provisions. For example, a clause could state that the party who is required to perform with its “best efforts” is required to do X, but not required to go as far as Y. In a technology support agreement, a clause might read: “Best efforts requires Tech Company to escalate problems to the highest level within its standard customer support organization, but not does not require Tech Company to send personnel to the customer’s location.”

Best Efforts – friend or foe? A “Best Efforts” clause can be a friend when writing a contract just remember to take the time to incorporate specific parameters for measuring performance or you may end up with an unruly foe to contain if there is a dispute.