D.C. Cir. Pok.

Last week I had my first argument at the D.C. Circuit.  Upon entering the court building, I felt like a sheltered child of privilege making her first ignorant foray into a third world country.*  The courtrooms at the Federal Circuit are gorgeous.  Even 203 is an interior design masterpiece compared to the best courtroom at the DC Circuit.  It feels like traffic court or Judge Judy.  It is in the same building as the district court, so there are jurors and spectators in hoodies walking around the hallways being grumpy, and most people are not wearing suits.  The entry guards took my phone away like I was some sort of savage.  Now how am I supposed to live-tweet this experience?

Once in the courtroom, the CSOs told people that no part of their shoes can touch the benches, so everyone had to sit with both feet flat on the floor at all times.  You were not allowed to cross your legs at the knee, lest your shoe brush the back of the bench in front of you.  Then, a CSO actually yelled at the clerks for not going immediately to their assigned seats.  Apparently, only one clerk per judge is allowed in the clerk seating area, and the rest of them have to sit with the observers, and if they need to switch when the cases switch, the first clerk has to completely exit before the next clerk can enter.  Only clerks in the clerk seating area are allowed to have any papers or work materials of any kind.  Finally, rather than the dignified “all rise” that you get when Federal Circuit judges enter the room, the DC Circuit bailiff yelled “everybody stand.”  I felt like I was in detention.  I have no idea whether my experience was representative, but I am interested in getting the stories from other Fed. Cir. clerks that also have “real circuit” experience to weigh in, possibly over poker cards tonight?  I bet the DC Circuit clerks don’t even have poker…

But another thing.  Our panel had two women.  Fascinatingly, opposing counsel consistently called both women “sir” in his responses to their questions.  I found it jarring at first, but then I decided I really like it.  I don’t know if “ma’am” has some subliminal misogynistic undertone in my mind because of the historically inferior role of women in the world, or if I just like the sound of a man calling a woman sir, but either way it seems more reverent.

Ma’am is what the lady at the DMV calls you when her jaded dead brain has had enough of your bullet-proof explanation for why the agency’s waiting policy violates habeas corpus.  Sir is what you say (twice) when you are complying with an order from a superior officer.

Ma’am is what the DC commissioner calls you when he refuses to listen to your scientifically rigorous recommendation about improvements to the Department of Transportation’s snow management policy.  Sir is what you call the president.  Ma’am feels like a backhanded sign of respect, while sir sounds more genuine.  Maybe it’s just that I don’t get respect in most situations, and after a few months of being called sir, it will sound equally condescending.

Poker tonight will be at the Kelly house, [———–].  Get there at 8pm.  Bring money, beer, and Dolin repellant.  RSVP, and call me “sir.”

* Is “third world country” no longer a PC term?  I think you are supposed to say “developing nation,” but what if it isn’t developing?  What if it’s getting worse?


Bad Advice Poker

I took a piece of foolish advice over the weekend.  Not anything major or irreparable, but bad enough that it inspired me to reflect on the many other times I followed bad advice throughout my life.  Upon closer examination, I noticed a pattern.  All of that bad advice I have ever received was given to me by alcohol.  WTF booze?  I thought we were friends.  Here’s a sampling of the bad advice I have received from these false friends over the years:

“You’re a great dancer.”  –Vodka.

“That bitch is disrespecting you and needs to be fought.”  –Tequila.

“You tell the most interesting stories.”  –Wine.

“That buck-tooth pimple-face guy is hot.”   –Beer.

“That buck-tooth pimple-face girl is hot.”  –Whiskey.

“Your views on religion and politics are infallible.” –Gin.

And then there’s Bourbon.  Bourbon was the giver of the most recent piece of bad advice that lead to this reflection in the first place.

I was over-imbibing a wonderful poison known as Bourbon slush into the wee hours of Saturday night, and awoke still drunk on Sunday morning in anticipation of that most sacred of D.C. rituals: brunch.  I consulted the most reputable local authority on the matter, the website “Bitches who Brunch” to help inform my bleary-eyed search for sustenance.

Here is the problem with brunch.  I don’t want to schlep all the way to the other side of town to wait 20 minutes for a table, surrounded by vitriolic hill-staffers, so some hipster waitress can roll her eyes at me and I can pay $35 for an egg.  I don’t want buckwheat ricotta cranberry pancakes with crème fraiche, I just want pancakes with syrup.  And cramming a bunch of rickety tables onto a busy sidewalk 10 feet from honking cars is not “outdoor seating.”  What I really want is someone to come to my house and make my hungover ass some pancakes and eggs.

And Bourbon said “you’re not alone.  You want what everyone wants.  And you are just the genius to give it to them.”  So I said fuck Bitches who Brunch!  I’m starting my own site!  Cunts who Cater.

(Pardon my language, it was the Bourbon talking.)  So I started a website.  Then I sobered up and lost most of that momentum.  And now I have a website with nothing on it.  So I’m going to edit and post the top 75% of the content that I have generated over the past 4 years of weekly poker emails, in blog form, and see how that looks.

Blog postings will lag a few weeks behind the real-time poker email, they will be redacted for personal information, and will not contain any home addresses.  So if you ever want to actually go to poker, or if you just want ignorant diatribes hurled at your inbox in real-time, you still need to be on the email list.  If you have ever been mentioned by name in a poker email, and you don’t want such a disreputable affiliation for public consumption, let me know and I can change the name, delete the reference, or just not post that entry, depending on what works.

In the meantime, actual poker continues.  This week we shall gather at [——–].  $10 buy-in, 8pm start time.  RSVP.  Don’t bring Bourbon.  Bring something else.

Dirty Hippy Poker

This past Thursday-Sunday I was camping in a giant field with 30,000 hippies for the Lockn’ music festival.  It was actually a lot of fun, and I managed to go four days without an effective shower and I didn’t kill or maim anyone as a result.  Note I said “effective” shower.

On my way to the Friday afternoon bluegrass jam session, I saw a kid with a cash box sitting outside a tent over the entrance of which was written “Shower World” in sharpie. “Welcome to Shower World,” he said, “$10.”  Inside the tent was a row of shower heads, separated by completely ineffectual plastic curtains.  But I didn’t complain.  I was so dirty, I thought anything would do.  I was wrong.  I pulled back the curtain from my assigned shower, and immediately went back to the kid with the cash box and complained, “my shower has a poop in it.”  He responded, “an actual poop, or just a smear of mud that looks like poop?”  To which I replied, “actually there are three individual poops which appear to originate from the same transaction or occurrence, so I’m referring to them collectively as ‘a poop,’ but that is really beside the point.  I want a shit-free shower.  Now.”  So he gave me the shower next to the poop shower.  It had hot and cold knobs, which didn’t seem to have any effect on the temperature of the water, and which temperature can most aptly be described as “assorted.”  During the first of the water hot-flashes, I dropped my soap and it skidded under the curtain and into the poop shower.  So I had no use of soap for the entire four days.

Not to worry, though, I showered most thoroughly when I got home, and I have removed all traces of dirt, poop, sweat, bong resin, body paint, sunscreen, bug spray, broken glow stick chemicals, and spilled beer from my body.  There is still a mountain of camping equipment in my kitchen though, so we better have poker somewhere else…

Speaking of which, it’s Neal’s birthday!  Well actually not until tomorrow, so it’s his Han-non birthday tonight.  Let’s celebrate by having birthday cake at his house, and taking all his money by hitting a gut-shot on the river.  He loves when you do that.  He lives at [————] in Columbia Heights.  The poker birthday party starts at 8pm.  Bring a birthday offering of gluten-free dairy-free sugar-free egg-free soy-free whatever-is-left-that-keeps-Neal-alive.  RSVP so Jen knows how many gluten-free dairy-free sugar-free egg-free soy-free cupcakes to bake.  They are delicious.


We just got a new associate in my office.  This does not happen often.  Her name is Christina.  Which means that I am no longer the only skirt in the sausage fest.  And of course, we have confusingly similar names.  I call her mini-me.  She doesn’t have a patent law background, but she is supposed to start learning the law in this area and helping on doc reviews and stuff like that.  And it is my job to teach her.  I have a feeling that molding a young legal mind and career will yield much poker email material.  And you get a lot of perspective on things when you have to explain them to someone who doesn’t just take them for granted.  Lesson #1.  Patent Damages.

Me: The first thing you need to learn is the Georgia-Pacific factors for a reasonable royalty.

Mini-me: How many factors are there?

Me: Fifteen.

Mini-me: That can’t be right.  Legal tests are, like, four factors.  Who makes a fifteen-factor test?

Me: Actually it was just dicta from a random judge in New York, and it somehow became the law.

Mini-me: So these fifteen factors tell you what a reasonable royalty should be?

Me: Um, no.  You have to determine the reasonable royalty before you apply the factors, using objective evidence.

Mini-me: So what to the Georgia-Pacific factors tell you?

Me: Um, not really anything. You just have to pay your expert $600 an hour to write a 200 page report, talk about them for a couple hours in trial, and analyze whether each one of them adjusts the royalty rate upwards or downwards.

Mini-me: So you could start with a royalty based on past licenses, and then adjust it upwards 15 times?

Me: Oh, no, if you did that, it would mean that the licenses you used as starting points were not comparable.  You have to use comparable licenses as the starting point.

Mini-me: Oh, so it is a check to see whether your proposed royalty is reasonable, that makes sense.

Me:  No, that’s not it at all, you have to prove a reasonable royalty with evidence independently of the GP factors.  GP just adjusts the royalty.  Most of the time at least half the factors are neutral, and the remaining ones cancel each other out, so you maybe only have one that indicates any adjustment.

Mini-me: Then how much do you adjust it?

Me: It doesn’t tell you that.

Mini-me:  Then why apply this test?  It sounds like a huge, expensive waste of time and doesn’t tell you anything helpful.  And when it actually does something, it implies that you did it wrong.

Me:  Oh you have to apply it.  Even to just list the factors and say they do nothing, you can’t not have a Georgia-Pacific analysis, your expert will lack all credibility and his testimony will probably be inadmissible.

Mini-me: So it is a test you have to use, and it has to be completely gratuitous.

Me:  Yes.  And it’s fifteen factors long.*  Welcome to patent law!

Georgia-Pokesific’s 15-factor poker will start at 8pm, at [———]. You must first tie each bet to the evidence of the hand, and then you must use a 15-factor analysis to explain whether to raise.  I expect each hand will take about an hour.  So the normal pace.  Bring $10 and some craft beer.  That’s what all the kids are drinking these days.  RSVP!  It’s free and not a total waste of time like, well, you know.

* The most of any legal test (by two; runner-up is the 13 Dupont factors for trademark infringement).