To that end, San Francisco and Oakland Trade Secrets Attorney Mr. Aly Ebrahimzadeh has prepared a brief outline of California Trade Secrets Law to help Intellectual Property professionals understand the legal and rational underpinnings of Trade Secrets Law in the San Francisco Bay Area, helping them to better communicate with us during representation of corporate and individual clients in Trade Secrets Transactions and Litigation in San Francisco and Silicon Valley Boardrooms and Courtrooms.

We very strongly urge you to arrange an initial consultation with Mr. Aly Ebrahimzadeh to discuss your Intellectual Property concerns, whether they relate to Patent Litigation, Copyright Law, or Trade Secrets Law, as no basic outline such as this can replace the usefulness of an attorney consultation appointment. The following summary is for basic informational and entertainment purposes, and it should not be relied on as legal advice.

As a first point, unlike Patent or Copyright protection which have strict time deadlines on them, Trade Secrets protection can potentially last forever, or until the Trade Secret is no longer a secret.

The General Policies and Goals of Trade Secrets Law are to:
1. Promote creation of Value and production of ideas
2. Discourage Bad Acts and maintain commercial morality
3. Promote Trade and Competition
4. Encourage Mobility of workers

The 3 elements of the Tort of “Misappropriation of a Trade Secret” are that there must be:
1. a valuable trade secret
2. bad acts
3. reasonable precautions were taken to protect the Trade Secrets

General Sources of Trade Secrets Law:
1. Federal (via TRIPS in1994) and State Laws
2. First Restatement of Torts
3. Uniform Trade Secrets Act (UTSA) of 1979 and 1985
4. Restatement 3rd of Unfair Competition

In the USA, there are 3 main and different working Definitions of Trade Secrets that vary throughout the States:
1. RESTATEMENT of Torts, Common Law, Metallurgical Industries: a Trade Secret may consist of any formula, pattern, device, or compilation of information which is used in one’s business, and which gives owner an opportunity to obtain an “advantage over competitors who don’t know or use it”; it may be a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.
a. Mettalurgical v Fourtek, 5th, 1986: Metallurgical discloses secrets to a manufacturer of the furnace, and to a licensee in Europe; Court holds that such disclosures don’t void secrecy of Metallurgical’s Trade Secrets, but Trade Secrets law must respect reasonable business relations; Trade Secrets law does not require that the Trade Secrets be unique or novel (like Patent Law), so long as it’s not common knowledge; egregious tortious activity qualifies as misappropriation in discovering a not-so-secret Trade Secrets; secrecy is key, and balancing of 3 factors is a proper approach; Trade Secrets 3 factors: secrecy is a required factor; but value and expenditure of time and effort in development are not absolutely required, and depends on facts of case, i.e., if there’s a lot of value, no expenditure is acceptable, and vice versa, or very bad acts can override little value and little expenditure (but this is dicta and persuasive only in this jurisdiction).
b. Rohm and Haas, Restatement 3rd of Unfair Competition, 1982: secret paint formula was not generally known, but it was readily ascertainable from prior publications, but it was acquired here despite reasonable precautions via bad acts from a former employee who memorized and divulged the formula to the new employer; as long as it’s not commonly known to all in the industry and it give a financial advantage to the holder, it’s a Trade Secret.
c. Negative know-how is not a Trade Secret, but this is arguable, especially in case of Departing Employee, because it would otherwise make the most knowledgeable as the least valuable in society.
d. Reasonable Precautions help to prove secrecy, value, investment, and bad acts.
e. Summary of Factors to determine Trade Secrets: extent to which information is known outside or inside the business; precautions taken; value of info.; time and effort to develop the info; ease which information could be acquired or duplicated by others
2. Uniform Trade Secrets Act, including California, which is a modified UTSA jurisdiction: Trade Secrets means information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent “economic value” (actual or potential) from not being “generally known or readily ascertainable by proper means” by other persons who can obtain economic value from its disclosure or use.
a. Must have Reasonable Precautions, or there is no Trade Secrets protection, regardless of very bad acts.
b. Fleming: no Contract in this case; a Departing Employee took product needs, Client Lists, projected needs, supply sources and contacts to new job; Court said these are not Trade Secrets because such information known by employee is “readily ascertainable”;
i. But if information is documentation and records that the employee takes, it becomes suspect as a violation of Trade Secrets; but just because the information is written down by the employee does not mean it is a Trade Secret;
ii. Client Names are not Trade Secrets if they are readily ascertainable, but this does not mean you have to duplicate the information exactly as in the original document, because close enough is acceptable in UTSA jurisdiction.
iii. Court says that the information and experience carried by departing employees hired by new company qualify as “readily available info”; but this eviscerates Trade Secrets law, because then a company could just buy out all the employees of another company and then legally take all its Trade Secrets, especially since here Court says that “readily ascertainable” is not information that is just “mentally known,” but also any that were gathered on paper or copies as part of general responsibilities of employee during employment (absent egregious bad acts or torts)
iv. Catch 22: You can Contract around information in public domain if Contracting restrictions are reasonable, but “reasonable” means you cannot impede the pro-competition policies and general goals of Trade Secrets law.
3. RESTATEMENT 3d of Unfair Competition: a Trade Secret is any information that can be used in the operation of a business or other enterprise, and that is sufficiently valuable and secret to afford actual or potential “economic advantages” over others.
a. If value and secrecy and very bad acts are clear, evidence of Reasonable Precautions may not be necessary; but good advice would be to take such precautions anyway to avoid expense of lawsuit.
4. RESTATEMENT 3d & UTSA coincide: once the information is generally known or readily ascertainable by proper means, it makes no difference if improper means were used to acquire the information;
a. Negative know-how is a Trade Secret; but this is arguable, especially in case of departing employee, because it would otherwise make the most knowledgeable as the least valuable in society.
b. Church of Scientology, 9th Circuit Court of Appeals, 1986: Departing Employees want to disseminate the Church’s secret questions; Court focuses on the “nature of the activity” and says no Trade Secrets because no commercial value, only spiritual value; Problem with this decision is its focus on commercial value to a business: is not a non-profit a business, and are its Trade Secrets protected; and aren’t many religious activities also economic?
c. Generally, Restatement 3d and UTSA stress economic value and business advantage over Trade Secrets of a “business activity.”
5. California Trade Secrets Law has adopted the UTSA doctrines, but struck out the “readily ascertainable” language as an element in the cause of action for Misappropriation, but kept the “readily ascertainable” language as a defense; thus, it shifts the burden of proof onto the Defendant to show that it was not readily ascertainable; and thus gives more protection to Plaintiff’s; also, in CA, to prove that the Trade Secret is generally known, the Defendant argues how readily ascertainable it is, and the CA law focuses on finding out if the Trade Secret is generally known.

General Rules regarding Trade Secrets:

Independent Discovery is acceptable.

Reasonable Precautions:
1. Rockwell: vault and limited access and notice to others of protection of Trade Secrets are “reasonable precautions,” and Trade Secret is not invalidated by practical business needs to carry on its work internally and with other companies by sharing blueprints of its products with its internal and external colleagues.
2. ElectroCraft: precautions were full of loopholes in security, access to secrets, all employees did not have to sign confidentiality agreements, and didn’t have to wear badges;
3. Policies: If court does not see reasonable precautions, you could argue that you’re relying on protection that Trade Secrets law affords; but Court says that the public shouldn’t have such a burden, and that you should protect your own work; Court stresses economic and efficiency arguments over sleeping/negligent owners of Trade Secrets; also, is it Court’s role or Role of Expert Witnesses to determine what is a Reasonable Precaution?
a. Reasonable Precautions assure the legal system that the issue of contention is something of value; and it gives notice to others that this item is protected; and tells law that those who took this Trade Secret did so via a bad act.
4. Trade Secrets protected by law, and should be protected via Contracts as a Reasonable Precaution.

Plain View Doctrine: if the information is in plain view, it casts doubt on the value, secrecy, reasonable precautions, and bad acts regarding a Trade Secret.

Reverse Engineering:
1. Majority of jurisdictions, including UTSA: Reverse Engineering of a Trade Secret is acceptable, and not a bad act
2. Anti-Reverse Engineering clauses in Employment Contracts: Split among courts: some enforce (if equal bargaining power; and say there are other way to compete around such clauses), and some don’t enforce (if Contracts of adhesion; kills competition)
3. Federal Economic Espionage Act: outlaws Reverse Engineering, even when acceptable under UTSA; criminal penalties.

Contractual Restrictions on Employees:
1. are enforceable, even in the absence of a protectable Trade Secret (Warner-Lambert)
2. Restrictions on Departing Employees:
a. confidentiality agreements; invention assignments; Non-Competition agreements.
b. Negative know-how has special interactions with departing employees.
c. Law: cannot ask departing employees via Contract to give up skills, experience, and knowledge accumulated during their time of employment with you.
d. See Fleming in UTSA section: Catch 22: You can Contract around information in public domain if Contracting restrictions are reasonable, but “reasonable” means you cannot impede the pro-competition policies and general goals of Trade Secrets law.
e. Van Zealand: case involves a Contract; Contracts cannot restrict employees use of client list when the information is readily available in the public domain; Court says I won’t uphold the non-disclosure agreement re: client lists because it restrains trade, competition, and creativity; and the client list information is readily ascertainable; it is in society’s best interests to not lock-up readily ascertainable information via Contracts; also Contract involves unequal bargaining power problems (substantive due process), because who would voluntarily want to contract away the very resources that make you valuable on the market?;
f. Majority of Courts:
i. allow employers to Contract with employees re: information that is not a Trade Secret, but the boundary line relates to Contracts that restrain Competition;
ii. uphold reasonable Non-Competition Agreements; “reasonable” = length of time + geographic scope of affect of Non-Competition Agreement;
iii. BUT in CA, Non-Competition Agreements are unenforceable, with exception of the sale of the business in which key employees of the former company stay in the new company, and the old employer cannot compete for a while to allow the new company to become competitive. (CA BUSINESS AND PROFESSIONS Code).
iv. But in TX, covenants not to compete are lawful if contain reasonable limitations on time, scope, and area of restraint.
v. Clauses can be struck as whole, or in part and language can be reformed.
g. Warner-Lambert: “Listerine Clause Case”: Warner-Lambert promised inventor royalties as long as Listerine is sold; but Warner-Lambert wants to break Contract because it says the original Contract was unclear re: length of royalties, and because, via no fault of Warner-Lambert, the formula was published and now no longer a secret; but Court says that the Contract is valid, regardless of there no longer being a Trade Secret; and here no unequal bargaining power, because the inventor set the limits of the K, not the big corporation.
i. RESTATEMENT 3d of UC: differs from Warner-Lambert decision: non-disclosure agreement of information in public domain may be unenforceable (Iroquois)

Remedies for Violation of Trade Secrets:
1. Injunctions: can last as long as the Trade Secrets
2. Head Start Injunctions: tries to eliminate the advantage that the violator gained by forcing violator to cease work on misappropriated info/product for length of time it would have taken to develop the stolen info/prod legitimately
3. Damages: if misappropriated product or information is already in the market, then damages are most socially responsible remedy, because “reasonable remedies” and “actual losses” are hard to determine;
a. UTSA: gives treble damages for really bad acts
b. California Trade Secrets Law: criminal penalties for misappropriation of Trade Secrets;
c. Federal Economic Espionage Act: also criminal penalties; and also outlaws Reverse Engineering, even when acceptable under UTSA;
d. Problem is that keeping Trade Secrets in a criminal trial are hard because Defendants have the right to a public trial; and standard of proof is higher in criminal trial; thus are rare; But, injured party can get “restitution” as a remedy in criminal trials, yet injunctions are easier in civil trials; thus it’s a good idea to have concurrent criminal and civil suits in Trade Secrets violations matters.

Related Webpages:
Intellectual Property Law
Patent Litigation
Copyright Law
Trade Secrets Law

Related Articles:
Overview of US Patent Litigation and US Patent Law

“Thank you, Aly, for the excellent quality of legal representation that you provide my company every week. As a startup, we are blessed to have a General Counsel attorney like you – your sharp work, lightning speed, intelligent strategizing, and affordable rates give us the edge we need to beat the big boys!”

- Telephony Applications Business Client Testimonial, March 21, 2009.

Many clients often lack a sufficient understanding of the fundamentals of USA Patent Law. To bridge the gap and make our professional conversations with you more useful and time-effective, our Palo Alto Patent Litigation Attorney, Mr. Ebrahimzadeh, offers the following synopsis of US Patent Litigation and US Patent Law. Please note that this synopsis is only for basic informational and entertainment purposes and should not be relied upon as legal advice. You should consult with Mr. Aly Ebrahimzadeh personally to discuss your Patent Litigation matter.

There are four main Types of Patents in US Patent Law. These include “process patents” (e.g., purification process), “product patents” (e.g., Chakrabarty’s synthetic bacteria, see below), “new use patents” (e.g., new use for Hormone Z), and “business method patents” (e.g., selling a rock as a “pet rock”).

The principle Source of Law for Patent Law is the Constitution of the USA, Article I, Section 8, which states that “The Congress shall have Power To promote the progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The primary Goals of US Patent Law are to promote the public interest via the advancement of science (rather than to reward individuals), to maintain an incentive to invest, and to destroy the secrecy of useful inventions (to reveal inventions to society so that others may replicate your process freely 20 years after you file your application, or via voluntary licenses).

US Patent Rights are the strongest Intellectual Property rights, compared to rights conferred under Copyright Law or Trademark law, for example. There is no Independent Discovery Doctrine in Patent Law, as in Trade Secret law, meaning that even if somebody independently discovers the same invention as a person holding a US Patent for that invention, the latter inventor’s claim is invalid as to that same patent. There is no Reverse Engineering permitted under US Patent law. Generally, only a private Patent Holder may enforce violations of patent rights. A Patent does not grant the Holder the affirmative right to do anything with that patent, including the right to sell; it only grants a negative right, i.e., the right to exclude others from making, using, or selling your invention.

There are 5 “Patentability Elements” that need to be satisfied before an invention can be patented under US Patent Law. These are Subject Matter, Utility, Novelty, Non-Obviousness, and Description, as outlined below.

1. Subject Matter: Sec 101 of Patent Act: What kind of things you can get a patent for; a Patent may cover an “invention or discovery of any new and useful process, machine, manufacture, or composition of matter”; But, abstract ideas, mathematic formulas, laws of nature, undiscovered natural elements are not covered by Patents, as they are free to all men and reserved to none; Surgical Procedures are Not Patentable
a. Man-Made Living Organisms:
i. Chakrabarty, US Supreme Court (“USSC”): synthetic bacteria that breaks down components of crude oil, used for cleaning up oil spills; this synthetic bacteria was better than previous four naturally-occurring bacteria that were used because it’s more durable in all climates; US Patent and Trademark Office refused the product patent because no patents for living things. Court: you can patent living things that are man-made, but not those that are nature-made; the bacteria may be a “manufacture” or a “composition of matter”; Contrary argument said Plant Variety Act and Plant Act cover patents for various plants and for newly-created, non-naturally-occurring plants, but neither the Plant Acts nor Patent Act mentions synthetic bacteria; But this case opened door to biotech and GMO industry.
ii. US Patent and Trademark Office Advisory regarding Oncomouse: product patents for man-made higher order animals, e.g., mice, is ok, but not for creating man-made humans.
b. Purification Cases: separating out a substance from a pre-existing, naturally-occuring one
i. Parke-Davis, SDNY, 1911: regarding purified salt protein of adrenaline, called Adrenalin; Court approved process and product because the product is a purified form of adrenaline, and the purified product has a new, more efficient use beyond what nature provides; Split among Courts regarding Parke-Davis;
ii. For Example: if A creates Hormone Z via recombinant DNA process, and B creates Hormone Z via purification process, both may gain product patents for both of their versions of Hormone Z because the recombinant DNA version is a more pure version of Hormone Z, and thus they’re 2 different products. This is good, because otherwise, inventors would be demotivated to invent new processes of purification, and this would be against patent policy of promoting useful arts.
c. Computer Programs: are patentable

2. Utility: Patent Act, Sec. 101: “any new, useful process . . .”; an inventor only needs to provide a single use for his product, but his product patent covers all new uses; but this product patent does not provide you the right to exclude somebody from patenting a new use for that product via a “New Use Patent”:
a. Blocking Patents: Joe has patent for X and all its uses; Frank found new use for X, and to patent it, he must gain permission from Joe, and for Joe to use Frank’s new use,he must get permission from Frank!
b. Fashion: no utility!
c. 3 kinds of utility:
i. general: the invention must do something
ii. specific: the invention must do the function it claims to perform
iii. moral utility: a rarely used doctrine; causes conflicts between Federal Circuit’s determination of morality and state crime/tort laws; generally, invention must not confound the laws of society! (e.g., airplane patent of Wright Bros failed this test on first application)
d. Description of Utility: must be “specific, substantial, and credible” (e.g., can’t describe utility of a transgenic mouse as “snake food” to satisfy utility req.) so that those in the field will be able to understand and apply the invention without having to do too much work to do so.

3. Novelty: Policy is to ensure that the inventor hurries to patent his invention, and that the invention is new!
a. Sec 102a of Patent Act: invention must not have been used or known by others in this country, or patented or described in a printed publication in this or in a foreign country, before the invention thereof by the applicant for a patent; an inventor can’t self-block under 102a
b. Sec 102b of Patent Act: invention must not have been patented or described in a printed publication in this or a foreign country, or in public use, or on sale in this country, more than 1 year prior to the date of the application for the patent in the USA; an inventor can self-block under 102b (GATT Trips does away with 102b via “provisional applications,” which give “patent pending” status and require less than full description of invention, thus giving required notice to others; But 102b is still maintained under US law)
c. 18 month rule: does not apply to patents for USA-only-applicable inventions; 18 months after submitting an application, whether or not you get a Patent, the information is published in public; and then, one may not even get Trade Secrets protection for your invention because it’s general knowledge; but you can withdraw your application before the 18 months to avoid publication
i. Sandbagging: 18 month rule and 102b were created to stop sandbagging, which is where an inventor sits on his patents and waits for others to unwittingly invent and commercialize his same invention, and then the first inventor sues them for patent infringement, and collects retrospective license fees and 1% remedy damages;
ii. Submarine Patents: a new way of sandbagging, where first inventor applies for patent less than 1 year after the 2nd inventor’s invention enters the public use, and then bargains with 2nd inventor for balance between injunction losses and 1% remedy damages.
d. Duty of Candor and Inequitable Conduct: an inventor need not disclose a prior art that he doesn’t know about, even if the prior art is his own, so long as there is good faith; But inventors represented by attorneys are presumed to know the law and attorneys are responsible for the facts that are knowable, even if they are erroneous as provided by the inventor, and good faith is not a defense in such cases (In re: Roessler).
e. In re: Hall: invention was described in another person’s dissertation on file in a German University; this qualifies as prior publication, and causes 102b problem because it was published more than 1 year before filing for Patent; 102a and b are bright-line rules, and have no wiggle room; Court says “publication” is determined by whether at least one person in the field has access to the info
f. Alcoa: narrows Hall by saying that where there is a confidentiality agreement and government forces company to make such publications available, then there is no “publication” for 102b novelty purposes because the information was never “fully accessible” to the public.
g. Egbert v Lippmann: The “Corset” Case said any use by any person counts as public use; But Courts have narrowed Egbert to make it apply only to commercial use, and not for personal/private use; thus, revealing an invention to one person who uses it for commercial use will bar the patent if it was revealed more than 1 year before the application; but if confidentiality was asked for and set up by inventor, then generally the inventor is safe and has no 102b problem regarding public use; and generally, if an invention is stolen and the inventor took Reasonable Precautions, then he is safe.
h. Rubik’s Cube: private uses for personal enjoyment under the control of the inventor do not invalidate a patent under public use doctrine of 102b; inventor showed copy of Cube to his graduate school roommate, and this did not count as public use; but had he handed out copies of it to his friends, he may have had a problem, because he would have failed to take Reasonable Precautions (like Trade Secrets law).
i. City of Elizabeth v Pavement: inventor tests pavement in Boston for 6 years; Court: Testing your invention is a valid exception to the public use problem, especially where inventor did not sell the product during that genuinely experimental phase.
j. Airwick, 1983: regarding powdered carpet deodorizer given to 75 homeowners in 2 different forms of the product, and no confid’y agr’s; Court: this is not an experimental use because it is actually “market testing” (commercial use) and not experimentation; Experimentation Exception is applied restrictively because by stretching time before the product is released, it hurts society and other inventors trying to invent the same.

4. Non-Obviousness: Sec 103 of Patent Act: requires creative leap to move from prior state of the art to invention’s new level; this test is judged by a “person of ordinary skill in the art” (i.e., an Expert in the field)
a. Graham v John Deere, USSC: Court says that it can determine whether non-obviousness is satisfied, especially because the Federal Circuit is comprised of judges with scientific background, and because the US Patent and Trademark Office is composed of Experts; invention should generally be more than a collection of old, known mechanical elements (here, invention is too similar to prior art and is rejected: a box that is fixed in flipped position, versus a box that is flipped into that position to stop plow shake); Court sets 3 Prong Test to determine Non-Obviousness:
i. Scope and Content of Prior Art
ii. Similarity/ Difference between Prior Art and Claims at Issue
iii. Level of Ordinary Skill in the Art
b. USSC Secondary Considerations to Nonobviousness (Graham v Deere); USSC says may be valuable in determining Non-Obviousness:
i. Commercial success
ii. Long-felt but unsolved needs of marketplace
iii. Failure of others (most important consideration)
Two More Considerations added by Federal Circuit; Federal Circuit says are “objective evidence” and act as a required fourth element in the Sec 103 analysis, or at least act as plus factors, but these considerations should not be given determinative weight over the 3 elements outlined in Graham v Deere:
iv. Proof of copying attempts by others, and/or
v. Others acquiescing to your ownership by applying for licenses

5. Enablement/ Written Description/ Disclosure: Sec 112 of Patent Act: “the specification shall contain a written description of the invention . . . to enable any person skilled in the art . . to make and use the same”; Inventor gets 20 years of protection in bargained exchange for disclosure to others for benefit of market; “written description” clarifies whether the inventor actually possessed the invention at the time of the application;
a. UC Regents v Eli Lilly, 1997: inventor described the sequence of human DNA for insulin from his description of rat DNA, but failed to describe sequence via description of human DNA, and thus failed Enablement Test for human DNA; Sec 112 requires satisfaction of Enablement and Description;
b. the Possession requirement of Description can be satisfied via “Constructive Possession” (can show valid plans and drawings that would constructively reach the actual invention)
c. Gentry v Berkline: the “Reclining Chair Case”: Court: no new, significant matter may be added to the US Patent and Trademark Office application via amendments after the original application is made; Policy: to prevent broadening of the application beyond its original description in order to subsume competitors’ new, better, similar products;
d. U of Rochester v Searle, Federal Circuit, 2003: UR invented a test to find COX2 inhibitors, and Searle used that thest to create a drug, and UR said Seargle owes it royalties for that drug, and Court disagreed; Court said UR failed to describe that compound or to show how to make that compound without “Undue Experimentation”; enablement and written description reqs are separate stds and both must be satisfied; “possession” does not satisfy “written description” req of Sec 112;
e. Analog Claims: analogs are different molecules with almost identical chemical structure that behave in almost the same way
i. Amgen v Chugai, Federal Circuit, 1991: inventor claimed a product patent for a protein EPO and all its analogs; Court: this is an enablement problem because there are millions of analogs that the inventor has failed to enable via his description, and so Court invalidated the analog claims; but post-Gentry, this is framed more as a Description problem.
ii. Today, in Analog Cases, Court allows analog claims so long as the inventor’s description does not require “Undue Experimentation”
iii. In re: Wands: the “Undue Experimentation Doctrine” applies in both the “enablement” and “written description” aspects of Sec 112: 1) has the inventor enabled others with enough information to avoid “undue experimentation?”, and 2) has inventor provided enough “written description” to avoid “undue experimentation?”; Critics of this doctrine say this is a distinction without a difference, because they both serve the same purpose, which is to avoid “Undue Experimentation”; but Gentry says that one can enable without providing a written description, and vice versa!; Split among Courts on having 2 parts to this doctrine.
iv. Atlas v Du Pont: DuPont said it tried to reproduce Atlas’ invention via its description, and it failed; Court sided with Atlas and said just because DuPont lacked the skill to reproduce the invention does not mean Atlas’s description, and thus patent, is invalid, because DuPont lacked the required “ordinary skill in the art.”
f. Literal Infringement vs. Doctrine of Equivalents: these are two separate causes of action which can generally be argued in the alternative; if first fails, try second.
i. Literal Infringement: Larami Corp v Amron: “The Super Soaker” Case; A Patent can have numerous claims, and Every claim in a patent can have numerous elements; Because every element of a claim is essential and material to that claim, a Patent owner must show the presence of every element (or “its substantial equivalent” in “Doctrine of Equivalents” cases) in the accused device; if even one element of a Patent’s claim is missing, then there can be no infringement as a matter of law; e.g.: if your claim has 5 elements, and another’s has 4 of your 5, then the other’s claim infringes yours.
ii. Doctrine of Equivalents: Warner-Jenkinson, USSC: Doctrine of Equivalents is limited by “Prosecutorial History Estoppel” (i.e., once the patent holder gave up the prior version of the element in order or necessarily to acquire the patent, then that prior version can’t be summoned to claim infringement; when there is no evidence either way, the Court applies a rebuttable presumption that the patent’s description’s limit was drafted intentionally to avoid the prior art, and Patent Holder may rebut this presumption; and USSC in Festo says that when the Patent Holder makes a change in the language of an element, the Reasonable Applicant could not have foreseen that it would estop him from applying the Doctrine of Equivalents against a future accused infringer: the “Foreseeability Test” should be applied: 1) the change was made before further developments in the technology, 2) the reason for the change bears only a tangential relationship to the element, and 3) some other valid reason); Doctrine of Equivalents is more broad than “literal infringement”; Doctrine of Equivalents has nothing to do with intent; a Patent covers what it covers, despite Bad Intentions, and if there’s no infringement, then infringer may have a defense; USSC validated either of the 2 Tests for the Doctrine of Equivalents:
1. Triple Identity Test: if the accused and patented products are the same in all 3 ways, then there’s infringement:
a. Function served by the element
b. The way the element serves that function
c. Result of that function
2. OR, can use the Insubstantial Differences Test, which looks at the elements of a claim and compares them to see whether the differences between the two products are insubstantial, and if they are, then there’s infringement.

Other Topics regarding Patents:

Patent Prosecution:
1. done before the US Patent and Trademark Office
2. Challenges of the US Patent and Trademark Office can ultimately lead to the Federal Circuit and the USSC
3. 3rd parties can challenge prosecution of patents.
4. all relevant information that the claimant wishes the US Patent and Trademark Office to consider in determining Patentability must be included in the original application, and all addendums that are made after the final US Patent and Trademark Office determination are barred from later entering litigation of the US Patent and Trademark Office’s decision (e.g., Graham v John Deere)
an issued patent enjoys a presumption of validity, and that can be overcome via clear and convincing evidence.

Patent Infringement: 2 elements, and Defendant can deny each or both of these:
1. ownership of a valid Patent
2. use, sale, import, etc. of a constituent element of a valid Patent.

Defensive Patenting: method of patenting all processes that lead to a product in order to create a legal monopoly (e.g., electric car to preserve combustion engine car)

Markman Suits: Role of Judges in Patent Litigation: Markman, USSC: claim construction is a matter of law, and only judges, not juries, may interpret patent claims; Juries can determine whether a claim, as interpreted by a judge, covers the infringer’s claim, can determine remedies, and can interpret claims only regarding Doctrine of Equivalents cases; when separate, alternative causes of action are brought regarding Literal Infringement and then Doctrine of Equivalents infringement, these are called Markman Suits.

Defenses to Infringement:

1. Patent Misuse: an equitable doctrine, and Affirmative Defense to an infringment cause of action, saying that the Patent Holder has misused the patent by
a. either fraud on the US Patent and Trademark Office, or
b. Impermissibly attempting to Expand the Time or Scope of the patent via K, e.g., a patent lasts 20 years, but the patent holder gives a license to use the invention for 50 years; such K’s are patent misuse and thus may be Unenforceable (Contrast with Trade Secrets Law and Listerine case); But the Patent Holder can defend the validity of the K by saying that the 50 years of license fees are part of an extended payment plan, or that the payments made after the 20 years of Patent Duration are made for use of Trade Secrets, which is what Patents may become when they die, assuming they are not generally known or readily available (hard to argue, though, given that Patents are published); or
c. Price-Fixing/ Tie-In Sales: Antitrust violations may qualify as patent misuse; and in theory, bad behavior does not have to rise to level of antitrust violations to qualify as patent misuse; the Defendant who uses the defense of Patent Misuse does not ned to show injury to himself, but only injury to somebody, because a patent is a public grant, and if the Patent Holder is behaving badly, then Court will find Patent Misuse in order to promote Equity!

2. Doctrine of Exhaustion: once a Patent Holder sells a patented item, he’s exhausted his rights to it, and thus can no longer control nor license it; Malacrot, USSC: as long as a sale is not an “absolute sale,” Patent Holder can still control/ restrict the products; sales with restrictions are “conditional sales” or “licenses,” and sales without restrictions where absolute property rights are yielded are “absolute.”

3. Experimental Use Defense regarding Purpose of Infringement: totally Different test than that used in City of Elizabeth v Paving (which is about Prior Public Use).
a. Maddy v Duke: After Prof. Maddy quits his post at Duke University, Duke keeps using his patented lab equipment, and Maddy sues for infringement; Duke claims “Experimental Use” Defense; Warner-Jenkinson said Intent is irrelevant in Patent Infringement in Doctrine of Equivalents cases, and so Maddy says it’s irrelevant whether Duke intended to infringe or not; But Court says intent to copy for purposes of Doctrine of Equivalents is different from intent to use product commercially or experimentally, because this case is about the “Purpose” of Infringing, and not the Intent!; and this is not a Doctrine of Equivalents case like Warner-Jenkinson; Court says the use is Commercial if it “furthers the institution’s legitimate business objectives,” and whether a business is for-profit or non-profit is Irrelevant for such a determination; Court creates a very restrictive defense, stating “Experimental Uses” are for “idle curiosity, amusement, or philosophical purposes,” and very few things would actually fit such purposes (e.g., a garage hobbyist with no intentions for commerce); as a result, Duke’s Experimental Use Defense failed, because there’s no way it could fit the Purposes of its academic activities into the confines of such a restrictive test as this; Still many academics fail to respect Patent Rights in their research, despite the law.

Remedies for Patent Infringement:
1. Injunctions and Damages are both available, and give Patent Holder some bargaining leverage in settlements
2. Patent Holders cannot be compelled to license their inventions; Patent Holder may choose to shut down the infringer via an Injunction, and Patent Holder has no obligation to ever market his product.
3. Damages are available for the period of the actual infringement, and damages are based on “lost profits” and “reasonable royalties”
a. Lost Profits – what Patent Holder would’ve made in the market if infringer weren’t already selling the product
b. Reasonable Royalties – what Patent Holder should receive that would allow the infringer to continue selling the product
4. In assessing damages, the amount is not technically determined by the actual profits the good businessman/ infringer made; although in practice, it may turn on that amount.

Related Webpages:
Patent Litigation
Intellectual Property Law
Copyright Law

The California Family Law System is deeply dysfunctional, and it is need of some serious positive changes. Though the problem of child abductions is connected to various international issues which shall be discussed later in this article, on the local level alone, it is often inextricably linked to the discussion of California Child Custody and Divorce laws regarding domestic violence. Thus, the problem of child abductions cannot be resolved in California unless the Family Law Court system increases its demands for evidence when faced with one parent’s allegations of abuse and negligence, and nurtures a professional environment that is truly committed in deed, and not just in word, to the welfare of children and the right of a child to have equal time with both parents, rather than jaded by slanted political and gender debates and financial interests.

Serious Problems and Real Solutions for the
California Child Custody and Family Law Court System

As a California Family Law Attorney practicing in San Jose, Redwood City, San Francisco, Oakland, Santa Cruz, and the surrounding areas, and having a Divorce Law practice that focuses on Child Custody, Equal Parenting Rights, and Collaborative Divorce, I join many of my progressive colleagues in urging California legislators to adopt some serious changes to our Family Law Courts, such as:

1. Allow jury trials in Child Custody cases to help avoid the judicial cynicism and fatigue that may creep into judge-controlled Family Law cases in California;
2. Take seriously citizen complaints about child therapists and social workers, and set up a third-party independent review process meant to weed out from the Court’s list of recommended professionals the psychological evaluators, Special Masters, and other therapeutic practitioners who are repeatedly alleged by various clients to act in a biased or unprofessional manner;
3. Make a concerted effort to educate lawyers, judges, and divorce professionals about the science that supports the essential albeit practically marginalized role of fathers in children’s lives, so that we can start to see divorced fathers being given back their natural human right to spend equal time with their children; and
4. Understand that the current model of extended court-based mediation and post-mediation hearings often subjects parents and their children to kangaroo court injustices where the laws of evidence are held in abeyance and therapists’ and mediators’ knee-jerk evaluations hold ultimate sway for months if not years, at which point then the parties may proceed to the litigation process of discovery and trial, which can take months and years itself. Our California Family Law Courts need to set up more stringent deadlines for this presently unending mediation process, bolster the goal of giving every child his equal time with both parents, and uphold and fortify evidentiary requirements upon both parents who are often found slinging whatever mud they can grab during this current mediation-based process.

Given that these necessary and inevitable changes are likely to take decades to occur in California, it is particularly unfortunate to see so many unrepresented parties in the Family Court system, because only a diligent and ethical Divorce and Child Custody Attorney could help a party to find their way past these pitfalls which are so common in our Divorce Courts in Santa Clara County, Alameda County, San Francisco County, and the other jurisdictions of Northern and Central California.

California Child Abductions by Foreign-Born Parents to Foreign Nations

What is even more troubling is a recent trend in Child Abductions, particularly by foreign parents to nations with even more aggressively gendered child custody laws. For example, there has been serious concern raised by California divorced fathers with ex-wives from Japan who have kidnapped their children and taken them to that country, where Japanese Child Custody laws strongly favor automatic, lasting, and unilateral child custody for mothers. Such laws are born of outdated modes of thinking that women are better or more natural caregivers and parents than fathers. Worse still, Japan is the only major industrial nation that has failed to sign the 1980 Hague Convention, which would require a member nation to mandate the return of abducted children to their country of origin.

The 1980 Hague Convention is a famous and deeply respected international treaty that has been signed and ratified (i.e., made into domestic law) by many nations to help support basic human rights and upgrade the treatment of people all over the world according to common and basic understandings of morality and decency generated by the world’s leaders and ambassadors to the United Nations. Therefore, it is very concerning that Japan has not signed and ratified this Convention, and even more so that Japan’s outdated Child Custody Laws have become a solace to certain Japanese mothers who are abducting their children from California fathers and running away to Japan, never allowing the fathers and children to see each other again. Japanese officials have argued that they are doing a public service by not allowing the California fathers to see their children again, as the mothers are running away from them because they were abusive. Yet it is precisely such questions of fact that must be answered by way of a legal court proceeding, not by private persons taking the law into their own hands and abducting a child to a foreign nation to hide behind allegations of abuse. Japan’s defense of such vigilantism is wrong and hypocritical, as it would never tolerate such flouting of its own laws.

Why the USA Refuses to Ratify the
United Nations Convention on the Rights of the Child

Another international Treaty, or “Convention”, that provides for basic human rights to children is the United Nations Convention on the Rights of the Child. Only two of the many nations that have signed this noble Treaty have failed to ratify and make it into their own domestic law – Somalia and the United States. Somalia has not been able to ratify the Treaty because it currently has no recognized central government, being a war-torn nation. It is a source of international shame and outrage that the United States has failed to ratify this Treaty. The United States refuses to ratify this Treaty because if it did, it would have to immediately cease its long-standing laws and policies which permit imprisoning juveniles under 18 years old (e.g., 16 or 17 year olds) with adult prison populations, permit giving the death penalty to juveniles, and permit juveniles to join and fight with the US military – boorish laws and policies that set the United States shamefully apart from nearly all of its dozens of industrialized international allies. Also, if the USA signed this Treaty, it would have to provide universal health care coverage for all children, which it refuses to do, making it a glaring exception among the major industrialized nations in the world.

Further, if the USA were to ratify the United Nations Convention on the Rights of the Child, each of the state’s family laws and separate child custody systems would have to be seriously scrutinized and revamped to fall in line with that Treaty’s requirements that all children be given the human right to spend equal time with both parents, absent evidenced, continuing, and serious reasons to do the contrary. Problematically, state’s Family Law Courts across the USA, including in California, currently provide mothers sole custody of children about 80% of the time in contested custody cases, fathers sole custody 5% of the time, shared custody about 15% of the time, with a true 50-50 time-share of child custody between divorced parents happening less than 2% of the time, according to the 2000 US Census and coeval California State Family Court Services reports.

Clearly, Prometheus: A Social Justice Law Firm is strongly in favor of the USA’s ratification of the UN Convention on the Rights of the Child, as the above-outlined problems in our nation’s treatment of children’s human rights demand immediate resolutions that this Treaty would require. In addition to such above-noted problems, children in the USA deserve more funding than they receive for their educations, funding for children’s parks and community recreation centers, and funding to relieve poverty, hunger, and homelessness among children in the USA – fundamental problems that the world’s wealthiest nation should not have, especially as it spends billions or trillions of dollars on corporate bailouts, corporate welfare, and military research and warfare worldwide.

1.2 Million Children Are Abducted Every Year Around the World

According to UNICEF, 1.2 million children are abducted and sold by strangers or even by their own parents each year all over the world. These children are sold into child slavery or child labor, forced into prostitution or child pornography, forced to become members of the military or tribal killing groups, forced to become members of local circles of thieves and criminals, or plainly killed so that their organs can be harvested and sold to doctors, hospitals, and patients paying hundreds or thousands of dollars for such live organs to be used in organ transplant surgeries. Several human rights organizations around the world work tirelessly to stop this outrageous crime of child abduction and systematic abuse, including Terre des Hommes International Federation, ECPAT International, World Vision, and of course UNICEF. However, little attention is given to this cause, as the victims of such abductions are usually homeless orphans who are lost from international sight and memory in war-torn and impoverished nations. In 1998, some international media attention did momentarily alight upon this disasterous situation when the award-winning fictional Greek film, Eternity and a Day, focused in part on this problem of the sale of abducted children in the Black Market. Yet it will take more than a movie to do anything positive to fix the issues around child abduction. More so, it is the politicians and corporations that we choose to support, versus those that we do not, the kind of work we do to earn a living, and how we choose to spend our money that will likely make the greatest difference in healing the problems outlined in this article.

It was also said by a German social activist in January 1946, Martin Niemoller: “When the Nazis came for the Communists, I remained silent; I was not a Communist. When they locked up the Social Democrats, I remained silent; I was not a Social Democrat. When they came for the trade unionists, I did not protest; I was not a trade unionist. When they came for the Jews, I remained silent; I wasn’t a Jew. When they came for me, there was no one left to protest.”

Problematically, the nations of Europe, North America, and South America have said very little or nothing at all, and have shown no tangible support whatsoever for the courageous protestors in the Middle East who are crowding the streets of Egypt, Bahrain, Iran, Iraq, Jordan, Yemen, and Kuwait, demanding an end to thousands of years of oppression by hostile monarchies, military dictatorships, and fake democracies.

Right now, in February of 2011, protestors in Iran are marching in peace amidst violent attacks by police and military troops trying to shut them up, yet the protestors will not give up their fight. They, like their brothers and sisters in so many of the nations across the Middle East and North Africa, want what all human beings deserve – equal opportunity instead of aristocracy and oligarchy; fair trials and humane laws instead of iron-fisted oppression and kangaroo courts; freedom of speech, of the press, of the right to worship according to the dictates of one’s conscience, rather than tyranny; and the end to the devastating pollution of their environment, the widespread abuses of the slave-labor force, and the stronghold over national economic policy by major global corporations and their local national political puppet leaders who turn over the “keys to the city” in exchange for a share of the profits.

Journalistic books such as Naomi Klein’s The Shock Doctrine, Jeremy Scahill’s Blackwater, and John Perkins’ Confessions of an Economic Hitman document the collusion between global Western corporations and Middle Eastern and North African political leaders – a longstanding collaboration that has resulted in the oppression of the people and Whitewashing of the culture of this ancient and beautiful region.

It is against this very oppression that the protestors in the Middle East and North Africa are marching, and it is therefore no wonder that the West remains silent and passive in the face of what is clearly Democracy in action. So when our nation’s leaders insist that they are waging wars in the name of Democracy, let us remember that Democracy is a god whose name is often taken in vain. Just as the US troops, for example, during World War II had impromptu patches on their uniforms stating that “God is with us,” the Nazi soldiers’ belt buckles noted the very same thing in German – “Gott mit uns.”

Prometheus: is a Social Justice Law Firm in the San Francisco Bay Area that is dedicated to Civil Rights and peaceful democratic values, and thus in this time of hopeful regime change in the Middle East, we raise our voices in unity for the good protestors of that great region of the world on a day that commemorates the epitome of democratic leadership in the United States – President’s Day, and in the week of Dr. Martin Luther King, Jr.’s birthday.

And so let us remember a great speech made by Dr. King on April 3, 1968 in Memphis, Tennessee, in which he spoke words that resound even today in this historical moment in the Middle East:

“Something is happening in our world. The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya; Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee — the cry is always the same: “We want to be free.” . . . We aren’t engaged in any negative protest and in any negative arguments with anybody. We are saying that we are determined to be men. We are determined to be people. . . .Now, let me say as I move to my conclusion that we’ve got to give ourselves to this struggle until the end. . . .”

The victims of Real Estate Fraud, however, are not only the investors and purchasers of homes that are built and bought under fraudulent circumstances, but also include people who are renting such homes from the landowners. In the midst of such serious matters as Real Estate and Investment Fraud, innocent renters of lovely homes in Silicon Valley, the East Bay, San Francisco, and the Monterey Bay Area are faced daily with non-responsive landlords, sudden evictions, and loss of their personal property.

Imagine that you are a family who is facing financial hardship. Perhaps you have lost your own home to foreclosure, and now you have terrible credit. So you cannot buy a new home, even if you could afford one. You may not even be able to afford entering into a year-long lease. Suddenly you find a lovely home that is offering you a month-to-month or other short-term lease (under a year, for example), with no credit check or contract required. The alleged owner of the home tells you that they simply want some help to cover their mortgage payments, so it sounds like a win-win situation. You decide to move your family and possessions into the home, pay the rent and any security deposit, and life is suddenly alright again, no?

Not for so many Californians in this exact situation, who find shortly after moving in that the house may be red-tagged by the city for failing to conform to local housing laws, or the house may be the subject of aggressive real estate fraud litigation between the actual owner and some con-artist posing as the owner, or the house may have been illegally rented to you in the first place in violation of some mortgage agreement between the owner and his lending institution (such as California Housing Finance Agency or CalHFA) prohibiting rental of the home to anybody, or the house may be infested with termites or rats, or the owners may have not timely paid the utility or garbage bills. Now, there’s no electricity, garbage is piling up on the curb, the rats are having a field day on the dilapidated front “lawn,” and the front door looks like your local cafe’s community message board, plastered up and down with city red-tag notices, eviction notices, lawsuit notices, and late payment notices from local utility companies and tax commissions.

Soon, renters may find that they are being evicted because the house is the subject of a foreclosure action or other legal battle between various persons claiming ownership rights to it. For example, renters may have been paying rent to one person, reasonably believing that they were paying the landlord every month but finding out that in fact they were paying a person who doesn’t actually own the home and may instead have defrauded the true homeowner out of the house. Alternatively, renters may be informed in writing by a bank that all future rent checks should be forwarded to the bank rather than the original landlord because the bank may have foreclosed on the original homeowner’s mortgage, and thus the bank may be the new rightful owner of the home. Meanwhile, the original landlord may be insisting that you continue paying rent to him.

So what to do? Well, calling a lawyer is a good first step. At Prometheus:, we review and analyze your rental agreement, relevant notices you may have received, and communications between you and the landlord, and then we advise you of your legal rights and obligations as a tenant and inform you of state and local renter’s laws that apply to your particular situation. In some Northern California cities which are rent controlled, like Berkeley, Oakland, San Francisco, and East Palo Alto, there are strict laws which make it difficult for a landlord to evict a tenant. Where a renter’s personal property is damaged or simply taken by the homeowners during a hasty and unlawful eviction caused by an underlying foreclosure or fraud, a renter may be best advised to timely file a lawsuit for wrongful eviction against the person or entity who evicts him (be it the individual landlord or a foreclosing bank who is the evicting party). Alternatively, a suit for conversion of personal property may be appropriate in small claims court (for minor losses) or in Superior Court (for major losses). Give us a call as soon as you have any serious legal concerns, and our San Jose and Oakland area Real Estate Attorney will work with your budget to help you through this complex time.

But remember that “an ounce of prevention is worth a pound of cure,” as Benjamin Franklin said. When you are renting a home from anybody, do your homework. Generally, it may be best to avoid renting a home from a landlord who is himself experiencing financial troubles, as the landlord may not be able to keep ahead of his own mortgage payments or to properly maintain the home that you are renting from him. Don’t be too shy to ask questions about your landlord’s financial stability and his legal right to rent the home to you, as a reasonable landlord should appreciate a renter’s concerns in today’s economic climate, and a landlord may feel more confident knowing that he may be renting to somebody who is seeking a stable housing situation. Of course, a bad faith landlord may not be forthcoming with problematic information about the rental home. Fortunately, you can often conduct a free or very inexpensive property record search of the home you are renting in the local County Recorder’s Office, where all relevant property records such as Notices of Default on a Loan, Notices of Foreclosure, Notices of Pending Litigation (“Lis Pendens“), Liens and Mortgage Interests, and City Housing Code Violation Notices (“Red-Tags”) are kept on file and publicly viewable for every home in the County. If you find such a Notice in the public records of the home you are planning to rent, it may be advisable to reconsider your decision to rent the home. There are plenty of homes available on the rental market, and renting a home that is the subject of fraud litigation, pending mortgage foreclosure proceedings, or city violations may be a bad idea. You can also check up on your landlord himself to see if there is any pending or recent past litigation against him. Simply look up your landlord’s name at the County Superior Court in which he resides, as well as the Court in which the rental home is located. You can do this kind of search online on the Superior Court of California webpage for the County in question, or you can call the Court Clerk’s office for that County (it’s much faster online).

Finally, remember to call an attorney to help you through every transaction as early as possible before any serious conflicts arise. People often wait too long to call us. When you are entering into a rental agreement, it is often very useful to have an attorney review the rental agreement and give you some useful tips on what to look for and what to avoid in your search for a home to rent. At Prometheus: A Social Justice Law Firm, we remain dedicated to working with low and middle-income clients around the San Francisco Bay Area in Real Estate Law matters such as Landlord-Tenant Law, Real Estate purchase transactions, Real Estate Fraud, Construction Defect, and Investment Fraud. We also deal squarely with related issues of Divorce and Community Property Law (where ex-spouses are battling over the family home), Personal Injury and Premises Liability Law (where you are injured or your property is damaged as a result of a home rental), Criminal Law (where residential or commercial Real Estate and Investment Fraud blends into a Criminal charge, such as Elder Abuse or Securities Violations), Probate and Estates Law (where there is a Will or Trust at issue in a related Real Estate Fraud matter), and Corporate Law (where Commercial Property, Venture Capital, and Business Investments are related to the Real Estate Fraud matter), as Real Estate conflicts often blend with other areas of law.

You can read more about our practice areas of Real Estate Law, Landlord Tenant Law, Foreclosure Law, and Real Estate Fraud on our website.

Our San Francisco Bay Area Real Estate Law Firm aggressively, ethically, and intelligently offers legal representation for Landlords, Tenants, Investors, Contractors, Small Businesses, Families, and working class individuals in an assortment of Real Estate transactions, mediation, arbitration, and lawsuits. To schedule an Initial Consultation with our Palo Alto Real Estate Attorney, Mr. Aly Ebrahimzadeh, Esq., please visit our Consultation webpage. We look forward to meeting with you!

Attorneys who deal with individuals during their times of greatest conflict, as I do, have extra reasons to wonder at the human soul – what with friends and family at each other’s throats over money-focused lawsuits; con-artists defrauding innocent victims; lovers slinging mud at each other in child custody battles and filing restraining orders full of false allegations; corporate investors and CEO’s outright lying on the witness stand; people robbing, beating, and just plain killing one another in fits of desperation and rage; and politicians, judges, and lawyers fanning the flames or just turning away from all the injustice.

People have asked me why I am an attorney fighting the good fight when the mountain of iniquity is so enormous, and looming larger everyday. I could quote Ozzy Osbourne and say, “I don’t want to change the world, and I don’t want the world to change me.” But I won’t. Rather, I do want to change the world, but I remain conservatively optimistic about such a lofty goal. More importantly, my work is my meditation – a meditation similar to that which I feel while working in my little garden, pulling out crabgrass and thistle to make room for the daffodils and paperwhites, belladonna, and meyer lemon tree.

I know that I can’t help everybody who calls my law firm, and that at the end of the month, I too have to pay the rent, feed the dogs, and buy food at the market. Yet when I help couples find a peaceful path through divorce and custody disputes, businesses avoid costly litigation, a defendant in criminal court achieve a better alternative than jail or justly avoid a guilty verdict altogether, or a client find justice in the thick of a lawsuit in federal or state court, I not only accept the kind words, hugs, and high fives of people who are truly glad they met me, but I also feel a sacred sense of inner peace and a sense of having helped my community to be a better place to live.

I have been interested in Buddhism for a long time, and I find some inspiration for my law practice in the ethics laid out by the Buddha. I would not call myself a Buddhist, per se, yet I very much appreciate the Buddha’s teachings (or “Dharma”). The Dharma is very ethics-focused. It accentuates ethical thinking, ethical speech, and ethical actions – even social justice activism. It prizes concentration and perseverence, and to attain these attributes, the Buddha recommends meditative focus and forming alliances with others working towards similar goals to inspire and teach you along the way. Here below is a little primer on the Buddha’s teachings. As you read, you can see clearly where a social justice attorney might find such a philosophy meaningful and inspirational.

The Dharma is comprised of two main ideas – the Four Noble Truths and the Eight-Fold Path. The word “Buddha” means the one who is “awake” or “enlightened” in Sanskrit, an ancient language from India. Thus, “Buddha” is a title, as the Buddha’s birth name was Siddhartha Gautama. He was born in Lumbini, Nepal around 500 BC, and he was a prince of the Shakya dynasty. You can read more about his life in various books and online articles. In Buddhism, while the Buddha is holy, he is not a deity or god, but rather the principle teacher of Buddhism, which does not focus on any particular divinity and thus is often called a philosophy rather than a religion.

Be that as it may, Buddha’s “Four Noble Truths” (rendered in their most simple form) state that life is full of suffering because we often do wrong things which will hurt us (Karma) and others; but we don’t have to go about life this way – rather, we can do right things and work hard to try to reach perfect enlightenment (Nirvana), which is seeing things as they really are and being released from suffering. Needless to say, that’s a hard goal to hit, but Buddhism is more about “process” than “product”, as Jackson Pollock might say.

Basically, Buddha’s “Eight-Fold Path” outlines these “right things” to do, which I summarize below in a very short-handed version (noting that the full version of the Eight-Fold Path has indeed 8 very long sections, full of verbose descriptions and examples):

(1) Think good – which means think in an ethical and logical manner. As explained by the Buddha in his teachings, “goodness” means kindness, empathy, compassion, helpfulness, and all that other stuff that makes up what we all know as right and good.

(2) Intend good – have a “good heart” and be resolved to do good.

(3) Speak good – don’t lie, be abusive, slander, falsely flatter, gossip, cause disputes with your words, or waste words with idle chatter. And, as Bob Marley says, “the truth is an offence, children, but not a sin.” The Buddha would simply likely clarify that by stating, it’s ok to speak true but offensive words to somebody, but only when conservatively proper and absolutely necessary. I particularly appreciate this whole idea of “speaking good,” along with the next one:

(4) Act good and Do Good Work – act legally and morally according to universally common understandings of both, e.g., don’t break any laws, and don’t lie, cheat, steal, kill, commit acts of sexual misconduct, etc; and work for social justice and the betterment of people’s lives, rather than being greedy and self-centered. One of my favorite sayings of the Buddha, relating to this idea of Acting Good, is: “He who hesitates is already lost.”

(5) Persevere, Focus, and Concentrate:
(a) To do good, you have to try hard, keep your eyes on the prize, and focus. In other words, keep ever-vigilant, ethically awake, and spiritually conscious.
(b) Avoid the 5 worst interruptions of Concentration: empty lust, anger, laziness, worry, and doubt.
(c) Find inspiration through the “7 factors of Enlightenment” – The enlightened person is deeply mindful; is able to tell the difference between different spiritual states of being; and is full of energy, passion, tranquility, concentration, and grace.
(d) Take Refuge in the “Three Jewels” – Find inspiration in the example of the Buddha, the Dharma (Buddha’s teachings), and a Community of persons seeking enlightenment. This last idea of forming a Community of like-minded social justice professionals, for example, motivated me to join the National Lawyers Guild and become a member of the San Francisco Chapter’s Board of Directors a couple years ago.

As an attorney working in the public interest and as a longtime student of Buddhist and other noble philosophies, I find myself meditating on concepts or feelings of justice, truth, and peace while writing long, persuasive legal briefs, arguing a client’s case before a judge, or even while examining a witness on the stand. Similar to the feeling I derive from my private practice of yoga or my long, meditative motorcycle rides through the back countryside of Northern and Central California, I find an intense and focused spiritual centeredness in my practice of the law – much like I imagine Charlie Chaplin’s character must have felt while he was wrenching various nuts and bolts inside that great and metaphorical Machine in his classic film, Modern Times, except without all the accompanying hilarity, of course.

There are a few variations on Buddhist philosophy. Here is a summary of three major variations:

Tibetan Buddhists simplify the Dharma to 3 things by stating that it is essential to practice good thoughts, speech, and actions. They also emphasize the importance of having guidance in the process of doing these 3 good things by way of a guru (a spiritual guide) and by way of spiritual focus on a masculine deity and a feminine deity (god), as we are each comprised of both masculine and feminine aspects and must strive to enlighten our whole self. Tibetan Buddhists say, “Better to be a wild and silly monkey swinging from the vines in a jungle than a person who does not make another person who is greater than himself his teacher and guide.”

Tantric Buddhism, also known as Tantra, additionally focuses on a loving and deeply passionate relationship between true lovers as a way of attaining Nirvana, as each lover becomes the guru (teacher) and counterpart god/ goddess for the other.

Zen Buddhism focuses more on wild humor, mischievous but enlightening trickery, abstract poetry, creative passion, and a strong student-teacher spiritual relationship to help the student achieve the goals of Buddhism – think Mr. Miyagi from The Karate Kid, but more focused on a sacred and spiritual goal, rather than simply kicking butt and getting the girl. A particularly famous book on Zen Buddhism is Zen and the Art of Motorcycle Maintenance, by Robert Pirsig, which focuses on a more earthly “get your hands dirty” approach to Buddhism, rather than lofty and monastic notions of enlightenment which can often be confused by naive practitioners with a holier-than-thou practice of Buddhism. To learn more about Zen Buddhism, I very strongly recommend listening to audio recordings of the insightful and entertaining lectures of Alan Watts on the subject.

Prior attorneys and the self-represented defendant had conducted little to no discovery in the suit and had filed few pleadings, and the nearly bankrupt defendant had little funds to hire an attorney. Mr. Ebrahimzadeh worked with K.V.’s budget and provided her with aggressive and intelligent limited scope representation for a couple of months, substituting into the case as attorney-of-record at the commencement of trial just over a week ago. Conversely, the opposing parties were armed with over a thousand pages of exhibits, strong witnesses, motions in limine, scores of pleadings, and a very experienced attorney and partner at a major Santa Cruz law firm – an attorney who had formerly served as a judge and Chief Deputy District Attorney in Santa Cruz County.

The First Amended Complaint against the defendants included several claims, including breach of contract, fraud, conspiracy, intentional misrepresentation, intentional nondisclosure, California securities violations, and negligence, and sought a few million dollars in monetary and punitive damages against K.V. and the other defendants.

K.V. had started a software company several years before based out of her Los Gatos, California home, which was purchased by one of the corporate defendants, a cutting-edge internet multimedia software company headquartered in Morgan Hill, California and later in Scotts Valley, California and headed by J.F.. At the time of said purchase, K.V. began to work for the purchasing corporation as an employee. The purchasing corporation received millions of dollars in money from lenders and investors during the years of its operation. The Plaintiffs here were lenders or investors who made the above-noted claims against both the purchasing company and the purchased company, in addition to its CEO, J.F., and K.V.. The Plaintiffs alleged that K.V. was a principal, director, co-founder, owner, and/or executive of the company, that she conspired with J.F. to wrong the Plaintiffs by way of breaches of contract, securities violations, and various modes of fraud.

The Plaintiffs took 5 of the 6 total days of trial to put on their case, and the judge gave the Defense less than one day to put on its entire case in chief. At the end of trial, the Judge issued a tentative ruling entirely in favor of the Defense, commending both attorneys for excellently and zealously representing their clients. Further, although Mr. Ebrahimzadeh was not defending the purchased company defendant, who was wholly unrepresented in the case (as was the purchasing company defendant and J.F.), Mr. Ebrahimzadeh’s defense efforts at trial on behalf of K.V. convinced the Judge that the purchased company defendant was also not liable for any of the alleged wrongs to the Plaintiffs.

K.V. is set to issue soon a Bill of Costs to the Plaintiffs, seeking full reimbursement of her litigation costs and expenses. Needless to say, K.V. was extremely grateful to Mr. Ebrahimzadeh for his outstanding representation and for thus safeguarding her from the spectre of owing the Plaintiffs millions of dollars in damages.

Judge Walker’s decision here in Perry v. Schwarzenegger stated that, although California residents voted in November of 2008 for Prop 8 (by a narrow 52.5% to 47.5% vote spread) in order to make same-sex marriages illegal in this state, Prop 8 violates the US Constitution and the California Constitution because it provides no rational basis to discriminate against same sex couples who want the legal right to marry. As part of his 136-page decision, Judge Walker wrote, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license [. . .] Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” Judge Walker found that Prop 8 violates the Due Process and Equal Protection rights of gays and lesbians who want to marry. Judge Walker noted that “[m]oral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” Though Judge Walker of the Federal District Court overturned Prop 8, it is still not legal for same-sex couples to marry in California because the Judge issued a stay, or a legal “hold” of sorts, on his own decision pending the appeal of his decision in the Ninth Circuit US Court of Appeals, which re-issued the stay. Though the Ninth Circuit will begin to hear the case this month, a decision will likely not be made for several more months. It is likely that the case will be appealed to the US Supreme Court after the Ninth Circuit’s decision, thus keeping the status of same sex marriage in California in limbo for at least another year or more.

A leading proponent of Prop 8, Protect Marriage, is outraged by the Walker decision, and is a major force in fighting to ban gay marriage in California. On its website, the group argues the benefits of Prop 8 as follows:
“* It would restore the definition of marriage to what the vast majority of California voters already approved and what Californians agree should be supported, not undermined.
* It would overturn the outrageous decision of four activist Supreme Court judges who ignored the will of the people.
* It would protect our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage, and would prevent other consequences to Californians who will be forced to not just be tolerant of gay lifestyles, but face mandatory compliance regardless of their personal beliefs.”

Many religious Christian groups such as Protect Marriage and Republicans for Family Values are fighting hard to ensure that DOMA laws are passed in all 50 states. Meanwhile, Prop 8 has scores of opponents, including Senator Arlen Specter, who published a screed against DOMA in October of 2009 in The Huffington Post, shortly after converting from the Republican Party to the Democrat Party after 44 years of being a member of the GOP.

The role of government and religion in the creation and regulation of the institution of marriage is hundreds of years old, specifically dating back to 1563 when the Council of Trento decreed that marriage is a lifelong sacrament meant only for one man and one woman. The dramatic backdrop to this pivotal decision is filled with anti-Semitism, xenophobia, political posturing, and military strategies.

The History of Marriage: From Polygamy to Monogamy

Polygamy has existed all over the world as far back as we know, including in Europe until 1563. Outside of Europe and the Americas, polygamy is still common. So what happened in Europe in 1563? There is very little information easily found to answer this question, which itself raises the further question as to why such information is not made readily accessible.

The story is pieced together by an American journalist for the National Catholic Reporter, John Allen, Jr. (who also provides special Vatican coverage for CNN and NPR) in his December 26, 2003 column “The Word from Rome“, and from entries in the Jewish Encyclopedia from 1901, written by Joseph Jacobs and Aaron Tänzer.

On March 23, 1475, in Trento, Italia, a Catholic German-Italian boy named Simon went missing and was found dead by a Jewish man in the Jewish ghetto of Trento (a “shtetl,” to be precise). The Jewish man who found him disclosed the event to the local police. The police reported that the boy had been murdered. The Jew who found him, and other Jews, were blamed for the murder. They were also blamed for supposedly torturing the boy and using his blood to make matzoh bread. Ancient artistic renderings of this alleged crime are depicted in this German woodcut from 1493 preserved by Kenyon College in Gambier, Ohio, and in this bas relief from the Palazzo Salvadori in Trent, Italy. Obviously, this false and outrageous version of the boy’s alleged torture and murder is another example of anti-Jewish fervor in Europe.

Then, in 1588, Simon is “beatified” by the Roman Catholic Church, that is, he is made into a saint and the false torture/ murder story above is officially recognized by the Church and its obedient followers (i.e., virtually everyone in Europe at the time). Simon’s martyrdom day is officially declared to be March 21st, a classic Church move to alienate all nature-based religions, such as Kabbalic Jewish, Celtic, African, and Persian theological systems. March 21st, as you know, is the first day of Spring (think creation-of-life symbolism) and a principal day in such nature-based theologies.

These events exemplify the West’s post-Crusades effort to damage the global influence of the Middle East and of Islam through the power of ideas rather than the power of the sword, which ultimately proved futile during the centuries of the bloody European Catholic Crusades. The Crusades were launched by the Roman Catholic Church and the most powerful kings of Europe, nominally to colonize, Christianize, and “civilize” the Middle East and the “heathen” Moslems – the primary competitors of Europe and Christianity for world domination, and a region that current scholars around the world consider to be the birthplace of the modern arts and sciences, history, literature, theology, mathematics, and large-scale government – a region where, among most other parts of the world, polygamy continues to thrive.

Clearly, the collusion between politicians and religious leaders has been an age-old reality of backroom politics focused on expanding the power and control over the many by the few. European leaders, thus, were mindful of the great authority wielded by Kings and Clerics in Asia, including the Middle East, and Africa, not to mention in the New World by Mayans, Apaches, Cherokees, and other huge civilizations. Therefore, European leaders’ focus on expanding their empire first led them to exterminate dissent at home, so that they could more fiercely attack other nations. They knew that the center of human life is love, the family, marriage, and the home. So they created stern laws to regulate marriage, such that they could thereby control not only who gets married, but also who is permitted to conceive and raise children – thus giving the Catholic Church the ultimate power to dictate the very reproduction of our species.

Polygamy is firmly rooted in Christian culture, as it appears in the Bible in stories about the life of King Solomon (I Kgs. 4: 26; Eccl. 1-10; I Kgs. 11: 3) and accounts of the lives of major Biblical personages such as Lemech, Abraham, Esau, Jacob, and Gideon, all of whom were polygamists (Gen. 4:19; Gen. 16; Gen. 26:34, 28:9; Gen. 29:30; Judges 8:30). Polygamy is also permitted in the Qur’an and depicted in the life of the Prophet Mohammad. Remember, however, that most people of the world could not read or analyze these sacred texts since the great majority of the world was utterly illiterate during the centuries prior to the 1800s.

Knowing that polygamy was a common practice among Catholics as well as Jews and Moslems living in Europe, European leaders understood that they had to craft a law that would aggressively outlaw and punish the practice. They knew that the Catholic Church’s influence, when backed by the military strength of Europe’s Catholic nations, would clearly motivate all Catholics in Europe (but not so much elsewhere, absent the threat of enforcement) to follow the anti-polygamy laws. The Catholic Church also knew that non-Catholics would certainly not follow the European anti-polygamy laws. Knowing that they would have the support and obeisance of Catholics, the Catholic Church and the European political leaders together created and enforced the anti-polygamy laws to further their goal of alienating, delegitimizing, and ultimately converting or killing all non-Catholics so as to form a unified Roman Catholic Europe.

Thus, European cities and regions, nudged by local Roman Catholic Bishops and political leaders, each started to pass their own anti-polygamy laws, similar to how each state in the USA is starting to pass DOMA laws.

One by one, each European nation pushed such new visions of monogamy down the peoples’ throats by using fervent Christian, anti-Jewish, and anti-Moslem rhetoric, depicting such non-Catholics as savages and demons for practicing such barbarous acts as polygamy. European Catholics, pitchforks in hand, ironically fell in line and found even more reason to consolidate behind the Catholic Church and against all outsiders – a xenophobic notion that is alive and well in modern Europe, from Nazi German to Nationalist Italy, from the anti-immigrant fervor spreading through contemporary Belgium and France to the anti-immigration laws and Middle Eastern colonial efforts of the United States and Britain today.

Finally, after creating a strong base of support and obedience to such anti-polygamy laws, in 1563, less than a hundred years after the death of little Simon, and taking place of course in Trento (the dramatic scene of the alleged “crime”), the Roman Catholic Church held a meeting to publish new laws. This meeting was called the “Council of Trento.” Remember, the Church has always and continues to make laws that it believes the Bible meant to create, but somehow did not explicitly do. Of course, an illiterate populace cannot question whether or not such laws are fair interpretations of the Bible, or even whether or not such laws are entirely made up by the leaders to dehumanize and control the people, by for example, making them feel evil or naughty for feeling such innate, essential and healthy feelings as desire, love, passion, sensuality, and sexuality.

Trento, Italy by this time, had become a major anti-Jewish center in Europe and its Catholics maintained a cultish observance of the alleged “martyrdom of Saint Simon,” who had been found allegedly tortured and murdered 90 years earlier in the Jewish ghetto of Trento.

So, the “Council of Trento” of 1563 (basically, the “Convention of Trento”) established what may seem to be relatively innocuous laws (at least from a modern European-American perspective, since we have come to accept monogamy between a man and a woman as the “right” way to love). Namely, the Council outlawed polygamy and stated that marriage was legal only if performed by a priest. Following suit, all the Catholic nations put the Council’s edicts into their legal codes, and Catholic Europeans, who had been well-trained for decades by this point by local anti-polygamy laws and harsh brimstone and hellfire rhetoric, accepted, if not touted, the new law. European or “Ashkenazi” Jews (but not Sephardic, that is, “Middle Eastern” Jews) also begrudgingly outlawed polygamy, so as to not attract even more scorn from their fellow European neighbors. Ultimately, the economic, political and demographic influence of Ashkenazi (European) Jews on Sephardic (Middle Eastern) Jews ensured that the Sephardic Jewish leadership later also came to accept monogamy as a good way to control the minds of the masses by making them feel holier and more civilized than their Moslem and “tribal” neighbors: hence began Europe’s manipulation of the Jews in the Middle East, much as Israel is manipulated and supported today by the West as an ally in Europe’s and the USA’s hunt for oil in Iraq and Iran. Thus, we can see the ancient roots of the modern political ethic at work in the West’s foreign policy towards the Middle East: “the enemy of my enemy is my friend” (ironically, a policy derived from a Middle Eastern proverb from the 4th Century BC).

Finally, in 1965 – twenty years after the end of the Jewish Holocaust, a Nazi death-project which was supported by many racist European leaders, the Roman Catholic Church, and their unquestioning and obedient followers (including the Catholic Pope Ratzinger, who was a member of the Hitler Youth) – the Roman Catholic Church was finally enmeshed by World War II academics and critics who publicly forced it to re-examine its ugly role in the Holocaust, during which time the Church came across its own ugly anti-Jewish fiction about the death of “Saint Simon.”

Likely understanding that the story was not only emblematic of the anti-Jewish history of the Catholic Church, but also the smoking gun that uncovers the power-greedy and colonizing role of the Church in expanding its power into the hearts of its constituents by limiting the nature of love and the natural union between lovers, the Church quickly and quietly de-beatified Simon, thereby delegitimizing Simon as a Saint, and prohibited the celebration of his martyrdom. The story of Simon, and how the Church grew into a moralizing, colonizing, and dehumanizing monolith, was officially buried.

2010 Canadian Lawsuit Considers Constitutionality of Polygamy after Same Sex Marriages are Legalized in Canada in 2005

The continuing influence of the Church and the State in the legislation and enforcement of marriage is felt even today by activists fighting for their right to non-traditional marriages, be they between same-sex couples or polyamorous groups, such as traditional Mormons.

This month, for example, the British Columbia Supreme Court began a trial to determine if its anti-polygamy laws are unconstitutional, a case that was initated when Canada’s Prime Minister, Paul Martin, commissioned a $150,000 study by three noted law professors to nebunk any notions that Canada’s new laws permitting same sex marriage would lead to polygamy. The case has attracted aggressive opinions about polygamy from legal scholars (Prosecutor Craig Jones) and academic intellectuals (Stanford Classics Department Chairman Walter Scheide) equating it with child abuse, backward societies, and a threat to safe and loving relationships, and touting monogamy as the backbone of Western civilization. Interesting – you don’t say? Now, where have we heard that before?

The Protect Marriage website, arguing against gay marriage, states, “Traditional marriage is the foundation of society and has served our state well for centuries. California’s constitutional marriage amendment exists to strengthen society, encourage monogamous and loving marriages and to provide the optimal environment to ensure the well being of children.” Well, that’s clear enough.

—

Prometheus: A Social Justice Law Firm provides intelligent and creative legal representation in California state and Federal courts in and around San Francisco, Oakland, Hayward, San Jose, Palo Alto, and Santa Cruz, California. Mr. Aly Ebrahimzadeh, Esq., an aggressive and affordable San Francisco Civil Rights Attorney, offers legal expertise in LGBT, civil rights, discrimination, sexism, constitutional law, marriage rights, adoption rights, and gay rights. To read more about our Civil Rights practice area, please refer to our Civil Rights webpage.

The international human rights community was outraged. While the UK newspaper, the Guardian, provided live coverage of Israel’s bombing of the flotilla, as did dozens of major international news sources, the media in the United States however paid little attention. Little is known about the history of Palestine and Israel in the United States, and this report seeks to remedy that by providing a brief summary of the history and events that have transpired in Palestine – with as much verifiable and objective sources of information as possible.

Since 1994, Palestine has generally been described as a semi-autonomous territory of Israel, with its official land area consisting of the Gaza Strip and roughly a quarter of the West Bank. While the eastern half of Jerusalem consists of nearly one million Palestinians, thus forming a quarter of the nearly four million Palestinians in Palestine, Israel officially controls Jerusalem as its own capital. To truly appreciate the complex nature of this irregular geographic definition, one must consider the history of Palestine – a history that is fundamentally rooted in border disputes, foreign interests, and bloodshed.

A Summary of the History of Palestine

Palestine is located in the Sinai Peninsula, a region of semi-arid land between the Red Sea to the South and the Mediterranean Sea to the West. Palestine is surrounded by Arab nations with whom it shares its turbulent history: to the North lies Lebanon and Syria, to the East lies Jordan, and to the Southwest lies Egypt.

With a land area of 5,860 square kilometers, the West Bank lies in the northeastern section of Israel, upon the western bank of the Jordan River, where it also borders the nation of Jordan. Narrowly situated between Egypt and Israel, the Gaza Strip lies upon the far eastern border of the Mediterranean Sea and has a land area of 378 square kilometers. Of this total land area of about 6,238 square kilometers, less than a quarter of it is controlled by the Palestinian Authority (PA), the Israeli-approved governing body of Palestine. Israel strictly controls the remaining portion of this land area. For example, since 1967, Israel has created settlements of its own in the West Bank and Gaza Strip, filling them with about a quarter of a million Israeli settlers who, in graven contrast to neighboring Palestinians, enjoy all the benefits of one of the strongest economies, protected by one of the strongest military regimes, in the Middle East. Further, Israel controls virtually all the modes of transportation in and out of Palestine, holds the key to all borders, strictly limits the PA’s ability to nurture foreign relations of any type, and forbids the PA from creating a military force of its own. In 2003, in violation of the Hague Regulations on Land Warfare and in violation of the Fourth Geneva Convention, Israel commenced the building of a great wall of sorts along the borderline between the West Bank and Israel “proper,” and in so doing, has greatly changed and infringed upon the territory traditionally demarcated as the West Bank. Much like Israel’s recent aggressive control of the Palestinian border has damaged the already ailing Palestinian economy, this physical barrier has further robbed Palestinians of equitable access to land and water, food sources, health care, and employment opportunities. As a result, Palestinians are ever more beholden to Israel as their source of food, water, shelter, and safety.

Although the once-rich soil of Palestine had traditionally been used by Palestinian farmers and shepherds for agriculture and livestock-grazing, over fifty years of Israeli-led military attacks against Palestinians, Israel’s destruction of the territory’s landscape, and Israel’s paralyzing blows to the Palestinian economy have more than simply eroded the topsoil and destroyed the practicality of subsistence farming. Today, most Palestinians who are employed – about half of the workforce is unemployed – hold low-level jobs in the agricultural, construction, manufacturing, and service industries. While farm work is the major form of employment for Palestinians, most of the farms employing them are located in Israel “proper,” and to a lesser degree, in the surrounding Arab nations. As a general rule, Palestinians are far too poor to own their own companies or lands.

Due to the Israeli government’s suffocation of Palestinians’ access to free trade, their free use of land and water, their free movement within and outside of their reserved territories, and their freedom from constant armed Israeli attack, more than half of Palestinians live below the poverty line of US$2 per day, more than half are refugees from the Israeli war machine, more than half are youth under the age of eighteen, and more than half are illiterate.

Since 1987, Palestinians have risen in mass revolt against Israel’s efforts to destroy them. This Palestinian revolution is called the Intifada, or uprising. It has come in two waves, now referred to as the First Intifada of 1987 and the Second Intifada of 2000. In the name of nationhood, both sides have committed thousands of murders, and the fighting continues because neither Israel nor Palestine is willing to compromise on crucial issues. In 1994, Palestine was granted partial self-governance by Israel as a result of negotiations between the PA President, Yasser Arafat, and the then Israeli Prime Minister Yitzak Rabin, both of whom received the Noble Peace Prize for their efforts. The PA, with its eighty-eight member Legislature, President, and Judicial Body, was born as a result of these negotiations. Its nascent political structure is still too disheveled to appropriately handle the crisis into which it was born. Although it has been attempting to clarify its Basic Law, to draft a Constitution, to delineate the powers of its Judicial Body, and to barter peace with Israel, the PA is itself embroiled in political turmoil between its various factions, ranging from the moderate to the extreme. Such a delicate lawmaking process is only further hindered by the constant military violence between Palestinians and Israelis.

Palestine from the Ancient Period to the 20th Century

Precariously situated between the continents of Africa, Europe, and Asia, this ancient crossroads of diverse nations seems to never have known the peace that multiculturalism is truly capable of spawning. There was one not so brief exception, however, to this grim view of history. Between the Sixth and Fourth Centuries BC, the Persians ruled this region with respect and support for the varied array of people living there. The Persian kings rebuilt the Temple of Solomon that the previous Chaldean warlords had destroyed, and they helped foster an intellectually appreciative climate which, among many other academic and cultural pursuits, promoted the writing of the Torah. This example of peace serves as a pristine historical lesson in the restorative potential of compromise and collaboration – virtues which seem to be dreadfully lacking in the periods of time before and after this particular era of Persian rule.

Archeological evidence proves that people have inhabited the Sinai Peninsula as far back as 200,000 BC. Evidence of agricultural and artistic pursuits notes that a substantially sized community of human beings lived in this area around 12,000 BC. Jericho, a Palestinian city in the West Bank, is considered by most archeologists to be the oldest continually-inhabited city on Earth, with evidence of farming, herding, and craftmaking dating back to 7,000 BC. Between 5,000 BC and 2,000 BC, various tribes settled and clashed in this region, starting with the Assyrians and Akkadians, and the Amorites and Canaanites. The Jewish faith commenced with the birth of the line of Abraham at about 1,800 BC, which over the next few centuries, splintered into the Kingdom of Judah and the Kingdom of Israel, who strayed almost entirely from the precepts of the Jewish faith and who battled for dominion over the region. This taut struggle between the Hebrews was exacerbated by the influx of Greek Philistines at around 1,200 BC. Such divisive tribal fighting eventually led, in the Eighth Century BC, to the destruction of all local power by the foreign Chaldean invaders, who took military advantage of the havoc in the region to broaden the reach of their own empire. The oppressive Chaldean grip on the peoples of the region lasted until the Persians wrested power from them in the Sixth Century BC. As noted, the next two hundred years of Persian rule liberated the Hebrews, Philistines, and even the Chaldeans, from cultural oppression.

In 300 BC, Alexander the Macedonian, also known as Alexander the Great, entered the region at the head of vast armies with the singular focus of spreading Hellenism to the world. Though Greek did become the principle language of this region for centuries to come as a result of Alexander’s invasion, the stability of the region that existed under Persian rule was utterly vanquished – thus, lending much support to the ancient credo that states, “it is much simpler to destroy than it is to create.” Over the next nearly two millennia, the Sinai Peninsula became enslaved to foreign interests battling for control over the region with all the bloody elements of political, military, and economic warfare, thus signaling to the world that the Sinai Peninsula is a region of pivotal importance – a geographic key to throw open empirical fancies onto the stages of three empires – Asia, Africa, and Europe. Power hungry empires followed in the footsteps of Alexander. The Romans came in the First Century BC; the Arabs followed in the Seventh Century AD; the Romans returned – now aided by the French, English and Germans – with the Crusades in the Eleventh and Twelfth Centuries AD; the Arabs regained control in the Fourteenth Century; and finally, the Ottoman Turks added the region to their list of conquered peoples in the Sixteenth Century, and held such dominion until the Twentieth Century, when European re-ascendancy over the region’s affairs became certain during World War I. Certainly, history shows us that multicultural appreciation for minorities did not exist in the Sinai Peninsula during those two bloody millennia.

Neither did multiculturalism seem to exist in Europe, for it was this very lack of minority rights in Europe that led to the Jewish Zionist movement of the late Nineteenth Century – a movement that would soon collide with the interests, rights, and very lives of the Arabs of the Sinai Peninsula.

Palestine in the Twentieth Century

After World War I, with the Treaty of Versailles, Palestine was granted its long sought-after independence from the Ottoman Turks in 1919, and thus the nation of Palestine was born. Its sad fate, however, was sealed two years earlier. In 1917, Britain issued the Balfour Declaration, which voiced support for the Jewish Zionist movement – a policy that sought to assist Jews, particularly those in Europe, to migrate en masse to the Biblical Holy Land in and around Jerusalem. Moreover, the Zionist movement activated the 1896 dream of its German Jewish founder, Theodore Hertzl – a dream of “a land without people for a people without a land.” The obvious problem with this fancy bit of propaganda was the fact that the Sinai Peninsula was home to a large Arab population – a people, indeed, who would look harshly upon further European despoiling of their independence. In the 1920’s, tens of thousands of Jews started to migrate to Palestine. By the end of this decade, Palestinians began to understand that Zionist immigration into their country would continue despite their laws to the contrary. Violence erupted between the Palestinian Moslems and the Jews in 1929, when a skirmish over the holy site of the Wailing Wall in Jerusalem boiled over into a major street riot. This initial confrontation over control of sites held sacred to Jews and Moslems alike marked the beginning of tensions that would carry forth to the present.

In the 1930’s and 1940’s, fleeing from Nazism and general European anti-Jewish fervor, European Jews began to illegally migrate to Palestine in ever-larger numbers, tripling the number of Jews that lived in Palestine before the commencement of the Zionist exodus, and quadrupling the amount of land owned by the Jews in Palestine. The European Zionists’ purchasing power over the Palestinians was not the only factor involved in helping the Zionists to buy huge quantities of Palestinian real estate. Since their immigration, the Zionists realized that they would have to fight for their right to stay in Palestine. They began to form large and aggressive street gangs using thug-like activities to intimidate and destroy Palestinians at every opportunity. Two of the most powerful Zionist terrorist groups were the Stern gang and the Irgun gang. In order to send a clear message that anti-Zionist policies would receive violent responses, regardless of their state of origin, in 1944 these Zionist gangs killed the British High Commissioner after he expressed support for the Palestinians’ rights to limit Zionist immigration; in 1946, the gangs bombed the King David Hotel in Jerusalem, a hotel that hosted various diplomats whom Zionists perceived as hostile to their cause; and in 1948, as part of the Deir Yassin massacre, these Jewish gangs killed 254 Palestinians. Meanwhile, Zionists in the USA lobbied US support for their continued migration into Palestine and defended the Jews’ right to a homeland via careful alliances with the media and academic intelligentsia.

These combined political, economic, and military tactics worked to drive Palestinians out of their own lands. By 1948, after the Deir Yassin massacre and related threats of further violence against the Palestinians by the Zionists, 750,000 Palestinians fled their own nation, leaving behind all their real and most of their personal property, and sought refuge in the neighboring Arab countries, especially Jordan. The Zionists claimed victory. As a response to the Zionist’s terrorizing methods, and even more so, in order to reverse the flow of Palestinian refugees into their lands, the nations of Jordan, Syria, and Egypt declared war on Israel. By the end of this Arab-Israeli War, the well-funded Zionist forces occupied 78% of Palestine, ceding the West Bank and the eastern half of Jerusalem to Jordan and the Gaza Strip to Egypt. On May 14, 1948, Israel declared statehood, and the short-lived nation of Palestine was destroyed. Sealing their unchallengeable dominance over the region, that same year, the Zionists murdered the United Nations mediator Count Sweden who was deployed by the UN to help bring peace and safety to the region. Further, immediately after declaring statehood, Israel issued laws appropriating all the real and personal properties that the Palestinians left behind in their escape from Zionist violence, thereby vastly multiplying Israel’s wealth and real estate holdings in what was once Palestine.

Between 1948 and 1967, Israel declared Jerusalem its capital, it continued its attacks on Palestinians living in UN refugee camps in the West Bank and the Gaza Strip, and it repeatedly defied UN resolutions reprimanding Israel for its violence. Feeling unprotected by the international community, frustrated Palestinians began to mobilize into armed groups, such as Fateh and the Palestinian Liberation Organization (PLO), and used similar tactics as the Zionist gangs in prior decades. Violence between Israel and Palestinians living in the West Bank and the Gaza Strip escalated to the point of war.
On June 5, 1967, in a preemptive surprise attack against a poised offensive movement of troops by Jordan, Syria, and Egypt, Israel commenced the Six-Day War. By June 10, Israel had defeated the three Arab nations, and had reclaimed the West Bank and the Gaza Strip as its own. As a result, 325,000 fearful Palestinians fled these Occupied Territories and sought refuge in Jordan, Egypt and Syria. As for the lands and properties abandoned by Palestinians fleeing their homes in the Territories, Israel appropriated these and established Israeli settlements in their place.

The clashes between Israelis and Palestinians only worsened after this War. In 1969, Zionists set fire to the Al-Aqsa Mosque, one of the most holy Moslem sites in Jerusalem. Similar acts of violence were used by both sides of the confrontation; however, Israeli military, political and economic clout dwarfed Palestinian efforts. Despite numerous documents issued by the UN and the international community, not one nation stepped forward to assist the Palestinians in their military struggle against Israel. In the 1990’s, when hundreds of thousands of Zionist Jews migrated to Israel after the fall of the Communist bloc, and when 370,000 Palestinian refugees from Kuwait returned to the Occupied Territories and to Jordan after the First Persian Gulf War, the tension between Arabs and Jews naturally increased.

Palestinian resistance, left without effectual international support, eventually devolved into violent revolution, namely via the First Intifada of 1987 and the Second Intifada of 2000, caused by the Israeli Prime Minister’s surprise visit to the rebuilt Al-Aqsa Mosque – a show of great disrespect for Moslem’s rights in Jerusalem and a dashing of any pretense of Palestinian claims to partial-sovereignty in that holy and much-disputed city. In response to these Palestinian uprisings, Israel has faithfully pursued what in 1988 it aptly named its “Iron Fist Policy,” a fierce course of action that includes a host of human rights violations against Palestinian revolutionaries and their ideological supporters in the Gaza Strip, the West Bank, Jerusalem, and in any other part of Israel. The official Israeli policy includes measures such as the “breaking of bones” that Israel publicly promised Palestinian detainees, mass arrests and minimum administrative detentions without trial, explosive home demolitions of suspected “enemies of the State,” strategic assassinations, and extreme methods of general warfare.

Such a dehumanizing level of oppression of Palestinian’s basic human rights has attracted much vocal and written international support, in addition to over four billion US dollars of aid earmarked for immediate relief and rebuilding efforts in Palestine. Unfortunately, due to the disheveled structure of the new PA and the long standing war-torn status of Palestine, little of the international relief funds are effectively useable. Further, the vocal support lent by the international community has not been backed by any actions aggressive enough to dissuade Israeli occupation and destruction of Palestinian life. Despite the limited autonomy granted to Palestine after the 1994 peace accords, and despite internationally-bartered peace negotiations leading to the 2003 Roadmap, true independence for Palestine, the end of Israeli occupation, and a resolution to armed conflict in the region – indeed the very aims of the Roadmap – are, in the eyes of Palestinians, far-fetched hopes so long as Israel is effectively permitted by the international community to fearlessly employ hostile tactics against Palestinians.
As it stands, Israel continues to deprive Palestinians of their rights to healthy food, land, air, water, shelter, safety, free movement, free expression, free worship, and among many others, the simple right to live in a homeland which Palestinians and their ancestors have held precious for thousands of years. To justify its actions, Israel states that like the United States in its mission against Al-Qaeda and the nations that President George W. Bush has named the “Axis of Evil” – Iraq, Iran, and North Korea – Israel is a “freedom loving nation” fighting terrorist Palestinians in a war meant to bring democracy via a two-State solution. Palestinians retort that they are not terrorists, but rather that they are freedom fighters, and are striving to overthrow a colonial regime directly headed by Israel and supported by the USA and Great Britain, whose oil interests in the Middle East arguably guide their necessity to find a sure foothold in the region from which to wage political, economic, and military warfare on all who hinder their access to such natural resources. The truth of this dialectic remains clouded in the eyes of the international community.

Meanwhile, what remains clear is that Palestine is falling, and Israel is on the rise. In about 2004, one journalist embedded in Palestine captured a translucent image of this crisis on a brief video, which received little air time in the media of the USA. The video shows an Israeli soldier with an M-16 chasing a young Palestinian boy, who seemed to be less than ten years old. After being chased by the soldier for a couple of minutes through part of a village that had been dessimated by explosives, the boy stopped, bent down, picked up a rock, turned around, raising the rock fiercely over his head and aiming at the soldier. Through the video, which was taken at some distance, one could see the boy yelling “Allah-u Akbar,” which means “God is great” in Arabic. The soldier stood his ground and aimed his rifle straight at the boy’s chest, but he lacked the moral surety to shoot. Instead, he turned around and started running in the direction from which he came, and the boy gave chase. This image of the boy with a rock in his hand chasing a fully-equipped adult Israeli soldier shocks the conscience. The reality, however, is that this scene depicts the actual differences in power between the two sides fighting this decades-long war. The typical Palestinian “soldier” is a slingshot-armed boy – poor, hungry, and tormented. Not only does this stand in stark contrast to a typical Israeli soldier, but this odd pairing of foes also clearly spotlights a frighteningly explosive situation to which the international community has failed to adequately respond.

Sources:

1. The United Nations at www.palestine-un.org
2. EUROPA: European Commission External Relations at www.europe.eu.int
3. Human Rights Watch at www.hrw.org
4. Al-Jazeera Online News Service

We at Prometheus: A Social Justice Law Firm are particularly sensitive to the rights of minorities and those who are not familiar with the ways of the United States legal system. Often, minorities and immigrants are confronted with illegal violence and discrimination by police departments and federal organizations, such as ICE, and private security personnel. So often, police violate the rights of immigrants and other minorities during illegal traffic stops, arrests, illegal searches and seizures, illegal interrogations, and violations of a suspect’s right to an attorney. We possess the knowledge, experience and resources to stop the violation of your civil rights. We have access to excellent private investigators, forensic specialists, public media strategy specialists, psychologists, and experienced retired police consultants. Together with our aggressive San Francisco Civil Rights Lawyer, Mr. Aly Ebrahimzadeh, Esq., you can aggressively fight Police Brutality, Misconduct and Discrimination both in Criminal and related Civil trials occuring in the major Superior Courts and Federal Courts in Northern California and Central California, including the US Court of Appeals for the 9th Circuit, the Federal District Court for Northern California, The Supreme Court of the State of California, and the various California State Courts in San Francisco County, Alameda County, Marin County, Santa Clara County, San Mateo County, Contra Costa County, and Santa Cruz County.

For information about our San Francisco, San Jose, and Oakland Civil Rights Law practice area, please refer to our Civil Rights webpage.

The Obama health care law is quite similar to the insurance industry lobby’s own suggestion for a universal health care law, as put forward by America’s Health Insurance Plans (AHIP) in December of 2008. This similarity between the insurance lobby health care plan and the Obama health care plan is not coincidental, as both are based on Republican, pro-Insurer laws suggested in the early 90′s in opposition to the Clinton proposals for universal health care coverage. Specifically, the Obama law is based on a Republican health care plan proposed in 1993 by Senator Chafee and backed by the conservative Republican Heritage Foundation which introduced a similar health care plan at the same time. Neither the Chafee plan nor the Heritage Foundation plan was ever effectuated, due to political wrangling.

It seems that Mr. Obama’s health care law is not only equally supportive of insurance companies’ bottom-line profits, insofar as the fact that it requires most Americans to purchase private insurance coverage with limited tax savings from the Federal government (which the government can afford only by phasing out tax credits it presently gives to employers who provide insurance to their employees), but the Obama plan too may never be truly effectuated due to a mountain of legal challenges brought in various federal district courts based on the law’s potentially unconstitutional requirement that Americans purchase private health insurance. This key aspect of the law not only boosts private insurance company profits by forcing Americans to purchase policies from them, but by so doing, this part of the law may violate the Commerce Clause of the US Constitution.

Under the Commerce Clause, Congress has the power to create laws that regulate interstate economic activities. The Obama Administration suggests that Americans’ actions to buy or not buy insurance policies are exactly that: interstate economic activities which Congress may regulate.

Several states have already filed lawsuits challenging the Obama health care law on such grounds, including Alabama, Florida, Michigan, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, and Washington. These states argue that it is not a commercial “activity” to not purchase private insurance. In other words, a person’s refusal to not buy a private insurance plan cannot be regulated by Congress, since the person is not engaging in any interstate economic activity. It seems that the Obama administration’s perspective is that by failing to buy private insurance, a person would be negatively affecting the federal insurance plan, and by upsetting the proverbial apple cart, the person would be negatively affecting interstate commerce. This is a reach, especially for legal scholars who should know better, such as the federal attorneys fighting on behalf of the Obama health care plan. Most of our nation’s citizens, however, will not understand the complex legal arguments at issue here enough to see that the Obama plan’s constitutionality is highly suspect at best, and rather will conclude that Republicans are simply stonewalling the idea of universal health care coverage for no good reason. It seems like this may very well be the strategy of the Obama Administration – rather than focus on accomplishing the goal of meaningful universal health care coverage, they have proposed a plan that at best would impact only the most needy people and only in the most minimal and necessary ways; yet even still, such a plan is largely dead on its feet due to the evident unconstitutionality of trying to force people to buy private insurance plans from insurance companies, while simultaneously striking a political victory for Democrats by making Republicans look anti-populist for their seeming opposition to health care reform, when what opponents of the Obama health care plan are really doing is upholding the US Constitution, regardless of whether such opposition is based on liberal pro-Civil Rights beliefs or conservative Tea Party Constitutional “originalist” beliefs. Indeed politics make for strange bedfellows.

Other challenges to the Obama health care plan’s Constitutionality focus on the infringement of state’s self-determination rights and financial abilities to fund other necessary public services, such as education and social welfare, by forcing states instead to spend their own tax money to support the law’s newly expanded federal Medicaid system and to activate the law’s state-run exchange program to help residents find and purchase suitable private health insurance plans.

Yet, the Obama Administration has other concerns, like how it’s going to make good on its stirring campaign promises to progressives and grassroots activists.

During his campaign, Mr. Obama loudly and repeatedly promised to end US involvement in the war in Iraq within months of taking office. The Iraq war continues with a minor and partial pull-out date somewhere in late 2011 – don’t hold your breath.

During his campaign, Mr. Obama promised to close Guantanamo and adhere to human rights requirements to provide Guantanamo inmates with criminal trials in US courts. Guantanamo is still open for business, with no such trials afoot for nearly all of the prisoners of war held in that prison. Further, we really have no way of knowing whether the Obama administration has continued with the practice of extraordinary renditions of prisoners of war to “Black Ops” prisons wherein questionable if not illegal interrogation and imprisonment practices are the rule.

During his campaign, Mr. Obama promised to re-establish the many environmental protection policies that the Bush administration curtailed during 8 years of attacks on conservation and environmental justice efforts. As the good folks at our nation’s environmental conservation and environmental justice law firms can tell you, they are busy at work filing lawsuits against polluting companies, state governments, and the federal government for continuing corporate and governmental attacks on the environment.

During his campaign, Mr. Obama promised us to create a meaningful universal health care law that would provide all Americans with necessary health care coverage. I suppose by that he meant that he would institute the Republican, pro-insurance industry requirement that we all get in line to spend what little money we have to purchase private insurance policies from big insurance companies, lest we be held liable for violating the ironically named “Patient Protection and Affordable Care Law” – an Orwellian name for a law that is itself unconstitutional.

It’s interesting that Mr. Obama has borrowed not only his health care plan from the Republicans, not only his policies on war, the environment, civil rights, and corporate welfare from Mr. Bush (remember the Obama bailouts via billions of US taxpayer dollars to the banking industry and auto industry, now ironically called the “Financial Stability Plan”), but also it seems that Mr. Obama’s use of upside-down language from the prior administration. Remember that Mr. Bush called his destructive agenda and downsizing of federal funds for public schools in America the “No Child Left Behind” policy – a policy that in fact left a lot of children behind, due to severe undercutting of benefits and support for schools and teachers. So now, Mr. Obama calls his health care plan that will potentially prosecute Americans for failing to purchase plans from private health care insurance companies the “Patient Protection and Affordable Care Law.”

It seems like we misunderstood Mr. Obama when he told us his presidency would be about “Hope and Change.” It seems like all we are left with is hope, and no change. Keep hoping.

Prometheus: A Social Justice Law Firm offers intelligent and affordable legal representation for Plaintiffs or Defendants in lawsuits involving Insurance Law, Health Care Law, and Constitutional Law. Mr. Aly Ebrahimzadeh is a California Constitutional Law attorney licensed to practice in State and Federal Courts, including the Federal District Court for northern California, the US Court of Appeals for the Ninth Circuit, the California Supreme Court, and various Superior Courts in central and northern California, including San Francisco County, Santa Clara County, Napa County, Alameda County, San Mateo County, Santa Cruz County, and Monterey County.

To read more about our Constitutional Law practice area, please refer to our Civil Rights Law page on this website.

To read a related article concerning “Post 9/11 Criminal Defense Law, Presidential Powers, and Enemy Combatants in the USA”, please refer to our Publications page.