Santa Barbara Lawyer. Official Publication of the Santa Barbara County Bar Association June 2009 Issue 441

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association June 2009 Issue 441

2 2 Santa Barbara Lawyer

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4 Melissa Fassett President Price, Postel & Parma LLP 200 E. Carrillo Street, Suite 400 Santa Barbara, CA T: F: Lynn E. Goebel President-elect; Events Committee Ehlers, Fairbanks & Goebel, LLP 15 West Carrillo Street, Suite 217 Santa Barbara, CA T: F: Mack Staton Secretary Bench and Bar Conference (2010) Mullen & Henzell LLP 112 E. Victoria Street Santa Barbara, CA, T: F: Catherine Swysen Chief Financial Officer Sanger & Swysen 233 E. Carrillo Street, Suite C Santa Barbara, CA T: F: William Clinkenbeard Past President Bench and Bar Conference (2010) Clinkenbeard, Ramsey & Spackman, LLP Post Office Box Santa Barbara, CA T: F: Santa Barbara County Bar Association Officers and Directors Lora Brown Liaison, Legal/Community Associations Hardin & Coffin, LLP 1531 Chapala Street, Suite 1 Santa Barbara, CA T: F: Luis Esparza Events Committee Esparza Law Group, PC 1129 State Street, Suite 13 Santa Barbara, CA T: F: Saji Dias Gunawardane Santa Barbara Lawyer Editor-in-Chief Law In Motion, PC 924 Anacapa Street, Suite 2-J Santa Barbara, CA T: F: Jennifer Kruse Hanrahan MCLE Chair Attorney at Law 285 Chateaux Elise, Suite B Santa Barbara, CA T: F: Richard F. Lee Liaison / Bench and Bar Reicker, Pfau, Pyle and McRoy 1421 State Street Santa Barbara, CA T: F: Donna Lewis Special Projects Attorney at Law 1727 Bath Street #B Santa Barbara, CA T: F: Cristi Michelon Events Committee Eaton, Jones & Michelon 1032 Santa Barbara Street Santa Barbara, CA T: F: John J. Thyne III Law Day/Law Week The Law Offices of John Thyne 2000 State Street Santa Barbara, CA T: F: Paul Roberts Bench and Bar Conference (2010) 1126 Santa Barbara Street Santa Barbara, CA T: F: William Duval, Jr. Law Day/Law Week 1114 State Street, Suite 240 Santa Barbara, CA T: F: Elizabeth Nolan Executive Director SBCBA Office 123 W. Padre Street, No. E Santa Barbara, CA T: F: Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2009 Santa Barbara County Bar Association EDITOR-IN-CHIEF Saji Dias Gunawardane ASSISTANT EDITORS John Derrick Winnie Cai SENIOR EDITOR Lol Sorensen EDITORIAL SUPPORT Adam Carralejo Jill Jackman Sadler CONTRIBUTING WRITERS Jennifer Adkins Nathan G. Alley Erwin J. Basinski Herb Fox Robert Sanger Brett A. Stone Nancy Warren ART DIRECTOR/COVER ART Alessandro Casati PRINCIPAL EVENT PHOTOGRAPHER Michael Lyons CARTOONIST Michael Ferrone DESIGN and PRODUCTION Baushke Graphic Arts Wilson Printing Submit all EDITORIAL matter to Saji Dias Gunawardane at with submission in the subject line. Submit all advertising to: SBCBA, 123 W. Padre Street, #E Santa Barbara, CA phone , fax Classifieds can be ed to: 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association June 2009 Issue 441 Articles Editor s Message Saji Dias Gunawardane 7 The Environmental Movement, Santa Barbara, and Law 8 Sustainability Buzzword or Legal Duty 10 Climate Change Law, Pt. II 13 Green Is as Green Does: Hype-Free Recommendations for an Environmentally-Friendly Law Practice 14 Environmental Case Update: U.S. Supreme Court Cuts Oil Companies a Break 16 Tips for Success Before the Board of Patent Appeals and Interferences 18 Welcome Back, Yara Bashoor 24 The Crimes of the New Century 26 No April Fool s Joke: You re Getting Foreclosed 14 The Changing Dynamics of the Joint Session Departments 28 Motions 32 Verdicts 37 Classifieds 38 Calendar Santa Barbara County Bar Foundation Honors Law Week April 26 - May 2, 2009 SEE PHOTOS CENTER SPREAD Our sixth issue of Santa Barbara Lawyer is this publication s first-ever Green Issue. As Santa Barbara lawyers, we live and work in one of the most beautiful environmental landscapes in the nation. A region renown as much for its serene scenery as its rich resources. It has fostered a collective social conscience while also fueling new, innovative businesses and practices. Even those of us who do not practice in the environmental paradigm per se find ourselves participating in discussions relating to local initiatives and national legislation: How might we harness energy, rather than deplete it? How shall we explore new sources, not merely exploit old ones? How will transportation and industries be affected by new emissions standards? And should there be more drilling off our coastline and if so, under what terms? In this issue, we present a handful of articles from local colleagues that touch on many of these topics. They offer a historical overview of the local environmental movement, a reading of the current climate in climate change, a primer on sustainability programs even a practitioner s take on greening your practice. From courtroom to boardroom, through factory and field, the law ebbs and flows and takes on various shades. As lawyers in the 21 st century, we believe that being a little aware of (if not awash in) things green will help us in our perpetual pursuit of seeing the forest for the trees thereby better serving our clients and community in a range of matters. As a final note, I am pleased to announce that commencing with this issue, this publication will be printed on sustainable paper stock. Your June issue arrives on recycled content, post-consumer paper certified by the Forest Stewardship Council. Indeed, as our cover art suggests, even Santa Barbara Lawyer is turning a new leaf. We hope you enjoy this issue. As always, we encourage and welcome your comments and contributions. The deadline for our July issue is June 11. June

6 Finally, someone my clients can count on just like they count on me. Your relationship with your clients is all about trust. They trust your integrity and expert legal advice. And they value the personal and confidential relationship you share. It s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding client relationships. In offering creative solutions for each person s unique needs. And especially in earning their trust with personal commitment and professional expertise. Whether it s designing an investment portfolio, managing multiple real estate properties or planning charitable gifts, you can count on our Wealth Management team to provide your clients with a level of service that meets not just their needs, but your standards. Wealth advisory services one of the many Paths to prosperity you ll find at Montecito Bank & Trust. What s your path? WEALTH MANAGEMENT Investment Management - Trust Services - Estate Administration Real Property Management - Philanthropic Services Call for more information Santa Barbara: 1106-E Coast Village Road, Montecito, CA Solvang: 591 Alamo Pintado Road, Solvang, CA Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA Member FDIC 6 Santa Barbara Lawyer

7 The Green Issue W The Environmental Movement, Santa Barbara, and Law By Michael T. Lyons hat is the Environmental Movement? The term environmental movement connotes something bigger than life, like a cataclysmic earthquake and resulting tidal wave or as we have all witnessed in Santa Barbara, uncontrollable wild fires that destroy everything in their path. However, the environmental movement that the world has witnessed over the past 40 years has not come in the form of devastating disasters, but, in the form of human interaction with the earth and its complex systems of climates, cycles and ecology. More precisely, the environmental movement may be defined as the organization of human activities that are working toward sustainable and positive objectives that may ultimately determine the form of non-living things such as soil, water, and climate) and survival of living things such as humans, plants, and animals. The environmental movement has a presence in virtually everything we do. We travel in green cars and buses, eat organic foods, use alternative energy, reside in green built homes, and drink water and breathe air under a shield of environmental legislation. Further, what was once waste is now recycled, reduced and reused. Through these and many other activities, the movement is dynamically changing the way we live while promoting environmental protection and human sustainability. What does the Environmental Movement have to do with Santa Barbara? Many people believe that the environmental movement is rooted in Santa Barbara. This belief sprouted on January 28, 1969, when Union Oil s Platform A, five miles off the Santa Barbara coast, had an accidental high pressure blow out of oil. Approximately million gallons of oil gushed to the ocean surface and spread with the wind and ocean currents. Wildlife, beaches, and local economies all suffered immensely. Oil from the spill could be found from as far north as Pismo Beach and south to the Mexican border. News media played a key role in displaying the tragic effects of the spill to America and the world by setting Vietnam aside for a moment and making room for news occurring on the home front. Even Sports Illustrated Magazine ran a cover story with photos of oil covered wildlife and beaches. Those who witnessed the spill s devastation became alert to the threat our lifestyle posed on the environment and that there was a far heavier price to pay for our lifestyle besides that Michael T. Lyons found on utility bills and gas pumps. Rather than suggesting that the environmental movement began in Santa Barbara, it may be more accurate to describe Santa Barbara as being a significant spark that gave rise to the movement. During this same time period between the 1960 s and early 1970 s other events also added spark to the movement. In 1967, two years prior to the Santa Barbara spill, the oil tanker Torrey Canyon went aground off the southwest coast of England and caused the first major oil spill. Also, Rachel Carson s book Silent Spring (1962) drew attention to the impact of chemicals on the natural environment. Grassroots environmental groups such as Get Oil Out!, the Sierra Club, and Greenpeace were formed because of the Santa Barbara spill and helped spread the movement by creating awareness of the harm that was being caused by our increasingly unsustainable lifestyles. To this day, the Santa Barbara community continues to be on the forefront of the environmental movement. The environmental studies program at UCSB is one of the top programs of its kind in the nation. Our city has the largest electric bus fleet in the United States and one of the longest running and highest attended Earth Day festivals in the world. The Environmental Movement and Law Out of the Santa Barbara oil spill came great momentum for the environmental movement along with its need to create favorable environmental laws. The many grassroots environmental groups and organizations that sprang from the Santa Barbara oil spill realized that their objective to protect the environment through protests, picketing and blockades was not enough. These groups realized the Continued on page 23 June

8 The Green Issue Sustainability Buzzword or Legal Duty? By Brett A. Stone It seems like everyone is talking about sustainability. The past few years have been witness to a whirlwind of change in the environmental community. With celebrities driving hybrid cars and Hollywood studios purchasing carbon credits, being green has gone mainstream. In addition, environmental laws regarding climate change and greenhouse gas emissions have been put on the books in California and it looks like federal regulations are soon to follow. Furthermore, the United States Supreme Court has determined that the Environmental Protection Agency (EPA) has the authority to regulate CO 2 emissions as a potential threat to human health. Among other things, this means that public interest groups may be able in the future to bring lawsuits against those they claim are emitting excess greenhouse gases. So the question arises, is sustainability good business sense or is it just another legal requirement? This article, written by a lawyer that recycles, reuses, conserves, composts, and bikes to work, explores both. Climate Change Laws On September 27, 2006, the California legislative body and the governor passed Assembly Bill 32 into law, leading the nation and world towards the economic benefits of implementing a global warming emissions cap. The effects of global warming on California could be disastrous (e.g., loss of the Sierra snowpack and rising sea levels). As the tenth largest emitter of carbon dioxide pollution in the world, California has chosen to lead the charge by committing to reduce its global warming emissions to 2000 levels by 2010 (11% below business as usual), to 1990 levels by 2020 (25% below business as usual), and 80% below 1990 levels by Reducing emissions from the tailpipe alone will not be sufficient to accomplish these goals. Emission reductions will also have to be achieved through measures designed to reduce energy consumption in a wide variety of building operations and manufacturing, and to transition to alternative fuel sources such as solar, wind, and biodiesel. These changes from business as usual will create business opportunities, jobs, and innovation. To begin with, businesses will likely have to determine their current carbon footprint. Regulations will be put in place to monitor, verify, and report all direct and indirect greenhouse emissions. Domestic and international standards for accomplishing these emissions surveys have been Brett A. Stone available to companies for several years. Cities and counties that are taking this seriously are already implementing strategies to consider sustainability issues in land use decisions. With the enactment of SB 375, sustainable communities strategies to reduce greenhouse gas emissions by reducing vehicle miles traveled are going to have a major impact on land use decisions. Indeed, climate change has quickly become a component of the California Environmental Quality Act. Mitigation measures may need to be considered to offset increased greenhouse gas emissions caused by proposed development plans. Real estate and land use attorneys who previously were content to work on subdivision maps and entitlements will need to expand their team to include professionals knowledgeable on climate change and to take advantage of smart growth incentives. Green Building One burgeoning sustainable practices is green building. This is the practice of increasing the efficiency of buildings and their use of natural resources such as water, wind, solar, use of grey water, green roofs, building materials and systems with the end goal of reducing the overall impact of buildings on the environment and human health. Furthermore, this push to become more efficient i.e., more sustainable in the use of energy by buildings drives innovation and the economy. Green building requirements are already part of many cities municipal codes, and the California State Building Code. Building green brings with it a significant boost in economic and social benefits such as reduced operating costs, improved occupant productivity, comfort, and health, as well as the opportunity to create, expand, and shape markets for green products and services. Real estate values 8 Santa Barbara Lawyer

9 The Green Issue may also increase due to the boost in aesthetic quality. Green building is expected to increase significantly by The economic recovery package passed in October 2008 extended the tax incentives for green commercial building until But green building too will have its share of legal challenges. How green is green? Does green mean LEED certified? How should green construction contracts be drafted? Green Leasing Sustainability legal issues will also arise because commercial tenants are increasingly demanding environmentally friendly rental space, forcing landlords to draft new leases and modify existing leases in a manner that incorporates green design and construction components while containing costs. These requests for carbon assurances in contracts will also find their way into agreements to supply products and subassemblies for manufacturing firms and for contracts for purchase of many kinds of infrastructure equipment. The new phenomenon of green leasing exemplifies the carbon assurance mechanism driving changes in commercial relationships and presents a number of unique challenges; however, little guidance exists on how to craft a green lease. Careful negotiation and drafting is critical to ensure that leases anticipate and address potential areas of dispute between a commercial landlord and tenant. Greenwashing Liability In addition, with worldwide focus on environmental protection, companies are marketing their goods and services in ways that tout their environmental consciousness. As a result, there has been an increase in greenwashing claims that such marketing is false or misleading. Undoubtedly, greenwashing claims will run through many marketplaces. In light of increasing use by the Federal Trade Commission of its green claims regulations to prohibit overzealous, unsupportable, or confusing claims about environmentally friendly or carbon-neutral products, lawyers should counsel their clients to make sure their claims of sustainability can be supported. In a world that is rapidly adapting to the pressures of the environment, it is imperative not to fall behind. Environmental sustainability garners public and government support. The benefits far outweigh the costs. Beyond good business sense, concerns about climate change are generating environmental laws that will soon regulate, among other things, businesses carbon footprint. While there are no bright line rules to follow at this time, the direction environmental laws appear to be heading is clear. Preparing now could save fortunes in the future. The world is changing; will you be ready for it? Brett A. Stone is a partner at the Santa Barbara office of Paladin Law Group LLP. Citizens inspect the City of Santa Barbara s most recent addition to its electric fleet at this year s Earth Day celebration on April 9, 2009 (Alameda Park, Santa Barbara). June

10 The Green Issue Climate Change Law, Pt. II By Nathan G. Alley N ow is the time to confront this challenge once and for all. Delay is no longer an option. Denial is no longer an acceptable response. (President-Elect Barack Obama, from remarks at an international climate change conference in Los Angeles on November 19, 2008.) To many, President Obama s words were both sobering and refreshing, coming as they did after almost a decade of federal inaction on climate change. The Obama administration has indeed rapidly evolved the state of climate change policy and this, in turn, has buoyed California s attempts to regulate a problem with both global and local nuances. In 2005, the California Air Resources Board (ARB) requested a waiver of federal preemption that would have allowed the State to enact emissions standards aimed at reducing CO 2 and other greenhouse gas emissions from automobiles. The U.S. Environmental Protection Agency (EPA) effectively ignored California s waiver request for two years, before Governor Schwarzenegger dragged the issue back into the spotlight by loudly and repeatedly threatening legal action against the federal government. In that same year, the Supreme Court decided Massachusetts v. EPA (2007) 549 U.S. 497, which directed EPA to follow Section 202(a) of the Clean Air Act and regulate greenhouse gases as air pollutants. Rather than taking immediate regulatory action, however, Bush s EPA used the decision as a cover to deny California s waiver request, stating that future (undefined) federal regulations would be preferable to a confusing patchwork of state rules. The situation was unchanged when President Obama took office in January Weeks later, however, the President directed the EPA to reconsider California s waiver request. ARB Chair Mary Nichols has said that the likelihood of a revised, favorable determination for California is over 95 percent. Next, the EPA finally noticed its intention to promulgate regulations for greenhouse gases. On April 17, 2009, it published a proposed endangerment finding, which describes six key greenhouse gases carbon dioxide (CO 2 ), methane (CH 4 ), nitrous oxide (N 2 O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF 6 ) as threats to the public health and welfare of current and future generations. The EPA concurrently published a proposed cause or contribute finding concurrently with the endangerment finding. It states that the combined emissions of these greenhouse gases from new motor vehicles contribute to the atmospheric concentrations of these key greenhouse gases and hence to the threat of climate change. Subsequently, on April 23, the ARB was emboldened to adopt regulations to implement a low carbon fuel standard, which would reduce greenhouse gas emissions from California s transportation fuels 10 percent by According to an ARB news release, [t]he regulation requires providers, refiners, importers and blenders to ensure that the fuels they provide for the California market meet an average declining standard of carbon intensity. The measure has been described as the most important early-action called for under AB 32, California s Global Warming Solutions Act of Federal legislation is also now on the horizon. President Obama recently endorsed a measure before the House of Representatives, written by Representatives Henry A. Waxman, Democrat of California, and Edward J. Markey, Democrat of Massachusetts, which calls for a 17 percent reduction in climate change-inducing greenhouse gas emissions from 2005 levels by 2020 and an 83 percent reduction by The President s economic stimulus package also provides up to $6.9 billion for state and local governments to improve energy efficiency. Santa Barbara County recently declared its intent to develop a regional Climate Action Strategy (CAS), funded in part by the federal stimulus money. A 2007 report from the House Oversight and Government Reform Committee found that the White House censored climate change scientists and extensively edited climate change reports. The report described a systematic effort to minimize the importance of climate change on the part of the previous administration. The times are certainly changing. The EPA s Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act was signed on April 17, On April 24, the proposed rule was published in the Federal Register under Docket ID No. EPA-HQ- OAR Nathan Alley is a Staff Attorney at the Environmental Defense Center s Santa Barbara office. 10 Santa Barbara Lawyer

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13 The Green Issue Green Is as Green Does: Hype-Free Recommendations for an Environmentally-Friendly Law Practice By Alessandro Casati G reen is a vogue term for everything from homes to automobiles, from restaurants to detergents. You do not have to be a tree-hugging hippie to establish basic routines and habits that can positively impact the environment and have the side effect of aiding in the better management of your law practice. Common sense is the number-one tool in achieving sustainability. Implementing and enforcing small steps in your firm can decrease your environmental impact, cut costs, improve storage problems, and ease the retrieval of documents. Limit Your Printing It is estimated that the average attorney uses between 20,000 and 100,000 sheets of paper yearly. A few easy steps can dramatically decrease the amount of paper used in the office, and they can also significantly decrease the cost of paper and toner in printers and copiers. Reviewing documents online, as well as collaborating online, can save huge amounts of paper. Whenever possible, it is a good idea to narrow the margins of documents and use double-sided printing as well as duplex copying. Think about circulating a single memo or document instead of making multiple prints. Use Technology to Your Advantage The ease and availability of technology can provide a quantum leap in the modernization and improved workflow of a law practice. Scanning, processing, and storing documents electronically not only cuts back on the amount of paper and toner used, but it also eliminates much of the storage space required to archive them. A well-designed document database provides an easy way to back up all kinds of documents, and it allows for the ability to make an archival copy of them for safe storage in a remote location. It also permits easy lookup and access of files by keyword, topic, case number, or client name by anyone in the firm and from anywhere in the world. Sharing documents with third parties is as easy as attaching them to an or burning a CD. Recycle and Update Two hundred seventy-five more dollars enter the economy for every ton of material that is recycled instead of being dumped in a landfill. Recycling a ton of material also saves the energy equivalent of two hundred sixty-five dollars in electricity and other resources. The joint Climate Challenge project by the American Bar Association and the Environmental Protection Agency recommends recycling at least 90 per cent of discarded mixed office paper. It s easy and convenient to place recycling bins in the common areas of your firm, and soon it will be second nature to use them routinely. Using recycled paper is also as important as recycling it. Sometimes it s required. California Rules of Court, Rule requires that recycled paper must be used for all original papers filed with the court and all copies of papers, documents, and exhibits, whether filed with the court or served on other parties. By the act of filing or serving, the attorney certifies that the document was produced on paper purchased as recycled. Recycling does not stop with paper. Computers, monitors, and office equipment are a primary source of waste in landfills. A number of organizations donate used equipment to needy families. Just make sure that all sensitive data is properly deleted from the drives. Non-working equipment, used batteries, and cell phones can be recycled through local non-profit organizations. Updating old equipment also goes a long way in saving energy and saving money. Energy Star equipment is certified by the Environmental Protection Agency to meet certain energy efficiency standards. It is worth knowing that laptops use approximately 50 percent less energy than desktops. High-efficiency light bulbs can use up to 75 per cent less electricity. Energy efficient fluorescent tubes can reduce energy costs by 40 per cent. Turning lights and computers off when not in use or at night is always a good idea, as well as turning down the heat in winter and air-conditioning in summer. Better productivity, higher savings and a healthier environment: everybody wins by going green. Alessandro Casati practices in the fields of civil litigation, international law and cyberlaw. Mr. Casati also serves on the Editorial Board of this publication; he is responsible for designing this year s innovative covers. June

14 The Green Issue Environmental Case Update: U. S. Supreme Court Cuts Oil Companies a Break By Paladin Law Group, LLP T he United States Supreme Court ruled against the federal government and declared that Shell Oil Company and units of Burlington Northern Santa Fe and Union Pacific do not have to pay for most of the $8 million cost to clean a polluted chemical site in California. Burlington Northern & Santa Fe Railway Co. v. United States, 129 S.Ct. 1870, 2009 WL (S. Ct. May 4, 2009). The court agreed that Shell was not responsible for the damage because it had only provided chemicals to the site and had encouraged proper handling. Because there was no intent to dispose, Shell was not an arranger under CERCLA, 42 U.S.C. 9607(a)(3). With respect to the liability of the railroads as owners of the property at the time of disposal under CERCLA, 42 U.S.C. 9607(a)(2), the court found that volumetric, chronological, or other types of evidence was a reasonable method of apportionment and upheld the district court s allocation of just 9 percent. This decision will no doubt have a major impact on government enforcement actions and private cost recovery actions alike. At the end of the day it could leave the government or the current landowner holding the bag. Attorneys at Earth Day April 19 at Alameda Park, Santa Barbara Tom Shapiro, Santa Barbara Assistant City Attorney Justin Greene with family and friends EDC s Nathan Alley Brett Stone and family 14 Santa Barbara Lawyer

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16 Intellectual Property Tips for Success Before the Board of Patent Appeals and Interferences By Erwin J. Basinski The Intellectual Property sections of the Santa Barbara County Bar Association, the San Luis Obispo County Bar Association, and the Ventura County Bar Association held a joint luncheon meeting in March in Thousand Oaks. The meeting featured a talk entitled Tips for Success Before the Board of Patent Appeals and Interferences by William F. Smith, a long-time Administrative Patent Judge at the United States Patent and Trademark Office ( PTO ) Board of Patent Appeals and Interferences in Washington, D.C. Mr. Smith is presently Of Counsel with Woodcock Washburn LLP in Atlanta, Georgia. Mr. Smith s enlightening talk addressed the patent appeal process. He reviewed the current state of affairs affecting the Examining Corps at the PTO, which makes it essential that patent practitioners understand the appeal process and be attuned, early in the patent prosecution cycle, to considerations that might require an appeal to be filed. This state of affairs is characterized by a historically high turnover rate among patent examiners, who now average three or fewer years of experience; an emphasis by PTO management on productivity goals; and an over-emphasis on poorly defined quality factors that can result in the initial rejection of patent applications without careful examination. The low experience level of examiners results from a combination of a historic turnover rate of 30% or higher brought about by multiple factors, including the emphasis on productivity and quality and the hiring by the PTO of examiners a year. The lack of experience has led to an environment wherein examiners are reluctant to make decisions regarding patentability, resulting in thinlyreasoned rejections. Examiner productivity is measured by allowances and abandonments of applications. This fact can induce an examiner to produce Final Office Actions and to generally encourage applicants to file Requests for Continuing Examinations (RCEs), which count as abandonments for the examiner s productivity ratings. This emphasis on RCEs is expensive for applicants and generally produces no applicant benefit. The acceptable alternative to an RCE can be an appeal, because an appeal conference will be held in which a third party conferee will review the case. Currently, examiner quality is measured primarily on allowances, with little meaningful review of rejections. This can result in a rejections are good attitude by examiners. This quality pressure, which was motivated in part by public commentary charging the PTO with issuing trivial patents, can also cause examiners to issue rejections that encourage RCE filing. The combination of low examiner experience levels, unwillingness of examiners to make decisions, the PTO quality crackdown, and the insistence by examiners that applicants file RCEs has lead to allowance rates near 40%, frustrations with examiners on the part of the patent bar, and applicants unhappy with long application pendencies and excess costs. Partial answers to these ills are file early and frequent appeals. Mr. Smith further pointed out that new rules related to the appeal process, which were proposed by the PTO but have not been implemented because of review by the Office of Management and Budget, would have imposed many additional and some onerous new requirements on the appealing applicant. Whether these new rules will ever become effective is unclear at this time. Some significant points made by Mr. Smith include the following: Appeal early and often. A response to a first office action can be viewed as the beginning of an appeal brief. Know what matters are subject to review by way of petition rather than appeal. Appealing a petitionable matter in the briefs or at a hearing is not allowed. (See In Re Hengehold (CCPA 1971) 440 F.2d 1395.) Know the standards that examiners are to follow for claim construction. ( See In Re Morris (Fed.Cir. 1997) 127 F.3d 1048, 1054.) When and if the new rules become effective, the format of the appeal brief will change significantly. (See the PTO FAQ on this point at web/offices/dcom/bpai/rule/faq_ html.) Be careful to separately argue each independent claim, and even key dependent claims, in an appeal brief. Otherwise the Board will lump the claims together and select the broadest one regardless of the patentability of any other claim. Note that if the rejection of even one claim is reversed, the patent term is adjusted per 35 USC 154(b)(1)(C)(iii). The new rules would make official the Docket Notices that are now being issued. Keep track of the 16 Santa Barbara Lawyer

17 Intellectual Property status of your case on the PTO s PAIR database. If you have not received a Docket Notice within two months of the examiner s Answer if no reply brief was filed, or one month after the examiner noted the reply brief, call the examiner to make sure the case was electronically forwarded to the Board. There are two options if a new ground of rejection under 37 CFR 41.50(d) is designated by the Board. This is happening regularly now, with citations of unpatentability under 101 based on In re Bilski (Fed. Cir. 2008) (en banc) 545 F.3d 943 and In re Nuijten (Fed. Cir. 2007) 500 F.3d 1346, 1354]. These are: (1) Request a rehearing by the Board upon the same record, 37 CPR 41.50(d)(2); or (2) reopen prosecution before the examiner, 37 CPR 41.50(d) (1). The two options are alternatives. You cannot request rehearing by the Board, and if unsuccessful, have prosecution reopened. Erwin Erv Basinski is a patent attorney practicing in Santa Barbara. The Intellectual Property sections of the Bar Associations of Santa Barbara County, San Luis Obispo County, and Ventura County held a joint luncheon meeting in Thousand Oaks. William F. Smith, a long-time Administrative Patent Judge at the United States Patent and Trademark Office Board of Patent Appeals and Interferences in Washington, D.C. (second from right), gave a presentation entitled Tips for Success Before the Board of Patent Appeals and Interferences. Also pictured (from left) are Christine Kopitzke, head of the SBCBA IP/Technology Business Section, Philip Steiner, chair of the SLOCBA IP Section, and Chris Balzan, president of the VCBA IP Section. As managing partner I have been completely satisfied with your service and response LEE GIBSON MYERS, WIDDERS, GIBSON, JONES & SCHNEIDER, L.L.P. Pulse IT Services: + IT Outsourcing + LAN/WAN Engineering + Data Integration & Consultation Pulse Law IT Expertise: + TABS + Amicus + Abacus + Legal Solution + Jury Instruction + Word Perfect Formerly Complete Computer Services THE HEARTBEAT OF YOUR NETWORK Fax: Emergency Response Line: x300 Website: thepulseit.com Locations: 1932 Eastman Ave. #103, Ventura, CA Ricardo Ave. Santa Barbara, CA June

18 New Lawyer of the Month Welcome Back, Yara Bashoor By Ad a m Ca r r a l e j o, Law St u d e n t In t e r n O ur new lawyer for June is actually a returning lawyer. Yara Bashoor came to Santa Barbara in 2000, but she returned to her hometown of Fort Lauderdale in 2004 for personal reasons. She received her J.D. Magna Cum Laude from Nova Southeastern University in Fort Lauderdale and is licensed in Florida and California. After a four year absence, she realized that Santa Barbara was too enticing to leave for long. She recently returned and started her family law practice in March. Where are you from/where did you grow up? Although I was born in Los Angeles, I lived in Cali, Colombia until the age of eight. After that, I pretty much grew up in Fort Lauderdale, Florida. What inspired you to go to law school and become a lawyer? My mother strongly encouraged me to pursue law. I doubted her decision for a time, but she knew best. I am happy to have studied law and enjoy the practice. What unique experience or outlook did you gain from your time in Florida? South Florida is a happening place where immigrants from many countries are aggressively pursuing the American dream. It can be daunting. Nevertheless, it s important to be reminded that we, regardless of our background and experience, are all in this together. What will you remember most from you time in law school at Nova University? I made one terrific friend that made the experience very enjoyable. We studied together, and she turned out to be number one in our class right off the bat. I also did remarkably well to my surprise and won the respect of my peers and professors. What made you want to come back to Santa Barbara? I like the people here. There s a strong and unique sense of community. People seem to care. And of course, I love the beauty of this town and its surroundings. I feel I m home. What made you want to practice family law? In Florida, I started out in business litigation at a very large firm. The work was interesting, but the environment was cold and impersonal. When I first arrived in Santa Barbara, I volunteered and then was hired at Legal Aid Foundation. There, I fell into family law and discovered that I prefer the very personal nature of this kind of practice. What are some interesting experiences you have had or important things you have learned so far as a practicing attorney? As a practicing attorney, I have learned to be more understanding of people. They always surprise me. It keeps the work interesting. What is it about practicing law that you like? I find it rewarding to help people resolve their problems. As a family law Yara Bashoor practitioner, I aspire to help people come out of a difficult situation with dignity. There is an opportunity there to make things better for everyone. What other activities are you involved with in the community? When I previously lived here, I was involved in various Continued on page Santa Barbara Lawyer

19 FEATURED PROPERTY Goodwin & Thyne P r o p e r t i e s We do more %... and charge less Residential Commercial Leasing Financing FEATURED PROPERTY PRICE REDUCED 3077 Hidden Valley Montecito Spectacular new 4BD/5BA Tuscan estate villa. Panoramic ocean & mountain views! $3,299, Olive Mill Lane, Santa Barbara $3,495,000 Large, single story 4BD/5.5BA Montecito estate on 1.22 acres with 3 legal lots. 90 Humphrey, Montecito $2,890,000 Live the Montecito beach lifestyle. 3BD/2BA w/ a bonus guest home. A rare find steps from Mirimar Beach Anacapa Street, Santa Barbara $2,549,000 Ideal for entertaining, Private Estate boasts 5000 sq ft main house, pool, spa & guest house on huge lot Calle Boca Del Canon Santa Barbara Dramatic ocean & city views from this 1.4 acre Upperwest property. Lots of potential. $1,495, Garcia Road, Santa Barbara $2,175,000 New construction Riviera home w/ designer upgrades. Unobstructed views. 4BD/4BA, 2800 sq. ft Cuyama Road, Ojai $1,190,000 Beautiful 3BD/2BA Estate + guest house on over an acre. Pool, tennis court & zoned for horses. 777 Via Airosa, Santa Barbara $2,050,000 Hope Ranch property on 2.5 acres with distant ocean views & private driveway. Lots of potential Tallant Road, Santa Barbara $1,950,000 Dr. Sansum's Historical 6BD/5BA estate + guest quarters sits on 1.1 acres w/ ocean views & more! Smart Buyer Program 478 Mills Way, Goleta $1,565,000 Turnkey fourplex near UCSB with great income ($8,300/mo) and potential! In 2008 we saved Buyers hundreds of thousands of dollars. Let 2009 be the year we do the same for you. The Smart Buyer Program only from Goodwin & Thyne Properties There's no catch, you just have to be smart enough to call us! (805) Vista De La Cumbre, Santa Barbara $1,475,000 Spacious 4BD/4BA home on huge 1/3 acre lot in San Roque. 55 Touran Lane, Goleta $1,099,000 Newer Mediterranean-Style 4BD/3BA. Virtual Tour at PENDING 385 Mathilda Drive, Santa Barbara $995,000 Great use 4-unit opportunity has 4BD main house, 1BD unit & 2 studios & 3-car garage. PENDING 822 Windsor Way, Santa Barbara $899,000 Mission Canyon retreat on.24 acres. Tastefully remodeled w/ designer upgrades. 37 Greenwell, Santa Barbara $879,000 Amazing value! 4BD/3BA, sq. ft., built in All high end finishes. Convenient SB location. 808 Via Campobello, Santa Barbara $869,000 Completely renovated single story home on large lot in great neighborhood. 310 Stevens Road, Santa Barbara $849,000 Great SB duplex near Municipal Golf Course. Completely redone. 2 units, each 2BD/1BA PRICE REDUCED 927 W. Mission St, Santa Barbara $849,000 Large Victorian 4BD/3BA beautifully updated, large yard Miradero, Santa Barbara $699, sq ft. ground level 3/2 upscale condo w/ attached garage 2 private gardens, French doors throughout. 413 W. Valerio Street, Santa Barbara $650,000 Great 2BD/2BA downtown retreat. Wonderful updated kitchen, comfortable floorplan. 328 Por La Mar, Santa Barbara $650,000 2nd flr corner unit 1BD/1BA w/ private balcony in desirable "El Escorial Villas." Remodeled. 33 San Anzio Way, Goleta $649,000 3BD/2BA quality remodel, large den, spa. Excellent value, turn-key. PRICE REDUCED 3167 Outrigger Ave., Ventura Keys $649,000 Great price for this beautiful 3BD/2BA roomy house. Rare opportunity. Great neighborhood. 205 Por La Mar, Santa Barbara $625,000 First floor home with private patio area, great for investor, first time buyer Bath Street #B, Santa Barbara $459,000 Lovely Downtown 2BD/BA Townhome with Private Garage. Close to State St. 223 E. Figueroa #G, Santa Barbara $415,000 Downtown cottage, 1BD/1BA. Steps to State Street. SFR not condo State Street #P2, Santa Barbara $370,000 Spacious 1BD/1BA condo in great downtown location. Easy to see. Kevin Goodwin Realtor /Broker ANNA SANDBERG ANTHONY BORDIN BRIAN WATNICK CAROL MOODY CLARK RICE COSME SERDIO FORREST BUCHANAN JOHN J. THYNE JR. KENT PFEIFFER (805) State Street, Santa Barbara June KEVIN HALL Laura Inks MALLY SNEDDON NATALIE GOODWIN DRE# Dep. Of Ins. #0D94539 PAUL KRAWCHUK ROSALIE MEYER STU MORSE WILLIAM CHIANG John J. Thyne III Attorney/Broker

20 20 Santa Barbara Lawyer Santa Barbara County Bar Foundation Honors Law Week April 26 - May 2, 2009

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