I have written, in various blog posts, highly detailed, rational and analytical explanations of why parties to an insurance coverage dispute should retain experienced coverage counsel to represent them; I have given long, detailed, argumentative explanations of the same point in a number of seminars. Often the analysis revolves around the fact that, if the other side has an expert in this area but you don’t, you are committing the legal equivalent of bringing a knife to a gunfight. No matter what anyone tries to tell you, you can’t make do with a generalist when you are engaged in a significant dispute over insurance coverage.

Thus, I chuckled when I came across this article here, by an insurance professional, in which he presented a humorous list of what he has learned in 19 years in the insurance industry. If you combine several items in his list, you end up with what may be the most perfect short answer to the question of “should I hire a coverage lawyer and if so, why” that I have ever seen. The answer, in short, is that:

There is nearly ALWAYS more than one possible answer to a coverage question. One is just more correct than the others based on the particular situation. . . . .Fifty states, hundreds of courts, thousands of differing opinions and interpretations. You can be right in some states and wrong in others. . . . It’s NEVER ok to guess at the answer to a coverage question.

Here’s an interesting case for you. Here in the First Circuit, we have plenty of case law making clear that theories of liability that serve as alternative enforcement mechanisms to those set forth in ERISA itself are preempted. What about the circumstance where the cause of action is not necessarily an alternative enforcement method but would nonetheless require the fact finder to reference the terms of an ERISA governed employee benefit plan to determine whether or not the plaintiff’s state law cause of action is viable? Is there a point at which the state law claim becomes too remote from the existence of the ERISA governed employee benefit plan for it to be preempted? Well sure, but it is only at a great remove from the employee benefit plan itself. The standard for determining this is a simple test – does determining the cause of action require considering or interpreting the terms of the plan? If so, the state law cause of action is preempted.

This principle is nicely illustrated by a new decision, out of the United States District Court for the District of New Hampshire, in which the plaintiff sought to recover emotional distress for tortious mishandling of her claim for benefits, by arguing that “resolution of her emotional distress claim would not require an analysis of ERISA plan documents” and therefore the state law claim could proceed. The District Court rejected the argument because, as a factual matter, deciding the plaintiff’s claim would require the court “to determine, among other things, any deadlines or other time frames set out in the plan documents. It would also be necessary, it would seem, to know the scope of the plan’s coverage, in order to determine whether [plaintiff’s] claims were mainstream or borderline or meritless, which, presumably, would have a bearing on the time reasonably necessary for [the defendant] to approve or reject them.” The case, Polley v. Harvard Pilgrim Health Care, does a nice job of illuminating this aspect of preemption analysis – namely, the implications for preemption of any need under a state law cause of action to interpret the terms of an ERISA governed plan. I pass it along as useful reading on that point, and a handy, dandy case to cite to quickly for the principle.

Here at this blog, we are all about being a modern media company, as you can tell from all the pop-ups and the banner ads you encounter when you come here to read the latest posts. Synergy, and book serialization and cross-marketing and all those other business page buzzwords – that’s what we’re about here.

Now I will take a minute and pull my tongue out of my cheek, and move onto one cross-marketing opportunity that I have agreed to, because it benefits the readers of this blog and involves what promises to be an outstanding educational opportunity. The American Conference Institute is hosting what looks to be a very broad and in-depth examination of current hot topics in ERISA litigation next October in New York, and this blog has signed on as a media sponsor. As per our continuing non-commercial status, no money in it for us, but it gives readers of this blog an opportunity for a substantial discount if they register in the next couple of weeks for the seminar. Just use my name and tell them I sent you. Just kidding – the actual information and manner of laying claim to the discount is right here.

The brochure for the conference itself can be found here. I signed on as a media sponsor for the same reason I think readers may be interested in the seminar, which is that the list of topics reads like a table of contents for the blog; thus, light dawned over Marblehead here and I realized if you read this blog regularly, you would probably be interested in the subjects being addressed at the conference. Beyond that, you will see the speaker list (here comes the pun) speaks for itself.

File this, I suppose, in the department of inevitable events – lawyers representing the restaurant industry have filed to have the Supreme Court review the Ninth Circuit ruling finding that the San Francisco pay or play ordinance is not preempted by ERISA. This is one of those instances where you can bet how the case will come out the same day the Court announces whether it will hear the case; if it does, the statute is going to be found preempted and the Ninth Circuit overruled, for reasons I referenced in passing here.

I do have a reason for posting on this, beyond wanting to get on board early with a prediction for the outcome (even Paul Secunda, back in his days as the Workplace Prof, would never have called a case before it was even accepted for hearing!), and that is this quote from the restaurant group’s lawyer, courtesy of the National Law Journal:

"One of the most important issues that we are debating in the country today is how health care is to be provided," said Jeff Tanenbaum, chairman of the labor and employment group in the San Francisco office of Nixon Peabody, who represents the Golden Gate Restaurant Association, which filed the petition on June 5. Golden Gate Restaurant Association v. City and County of San Francisco, No. 08-1515.

"This case comes down at a time when that debate is the focus of tremendous attention at the federal level. It is an issue that needs to be addressed at the federal level," he said.
 

I have said it time and time again on this blog, that ERISA preemption serves the admirable, even if perhaps inadvertent, role of forcing health care to be tackled at the only level it can be adequately addressed, the federal one, and not at the level of state governments, which simply don’t have the resources to pull it off, as this article here reminds us yet again (and this one too). I am happy to hear someone else say it as well.

Last week, we commenced our (quasi-) serialization of Robert Plotkin’s book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business.  Here, as promised, is part 2 in the series.

Automated Inventing: The Challenge for Patent Law

As I explained in my previous entry, increasingly powerful computer software is being used to automate the process of inventing. Since such software takes a wide variety of forms, I use the term "artificial invention technology" to refer to all of it. Patent law was originally developed in a time when all inventing was performed manually. Now, however, patent law must be ready to deal with attempts to patent artificial invention technology and the inventions it produces.

In my book, The Genie in the Machine, I explain how patent law can be updated to face this challenge. To give a flavor of how patent law needs to be reformed, let me start by explaining the meaning of the book’s title. You can view a computer that is equipped with artificial invention software as a kind of artificial genie. A human inventor can provide such a computer with an abstract description of a problem that he or she wants to solve — such as creating a toothbrush that can whiten teeth more efficiently than previous toothbrushes. This description, which must be written in a language that the artificial genie can understand, is like a wish for a better toothbrush. The artificial invention software (i.e., the genie) uses this artificial wish to create a computer model of an improved toothbrush — the wish come true. In some cases, the product itself can be manufactured automatically based on the digital design.

In short, the basic pattern described above can be represented by the following simple diagram:

Human Inventor –> Wish –> Artificial Invention Technology –> Wish Come True (Product Design)

This exposes very clearly the questions that patent law must be prepared to answer, namely whether — and under which circumstances — each of the following should be patentable:

– Artificial "wishes" (the input that a human inventor provides to artificial invention technology to create a new product design)
– Artificial invention technology (the computer hardware and software that can create new product designs automatically)
– Wishes come true (product designs created using artificial invention technology)

In my next blog entry I will give a flavor for how patent law can be updated to answer these questions.

I have always maintained a digressions section of the blog, down in the corner of the left hand side of the blog, for the purpose of allowing me to talk about areas of my practice – like intellectual property litigation – other than those listed in the title of the blog; its also there to give me space for subjects that are of interest to me but of only tangential relation to the subjects of either the blog or my practice, such as the financial underpinnings of the Massachusetts Health Care Reform Act.

This time around I have decided to make use of my editorial prerogatives and the digressions section of the blog to welcome my first ever guest blogger, Robert Plotkin. Longtime readers may remember other references to Robert in patent related blog entries; Robert is a long time patent lawyer who specializes, in particular, in patent protection for computer technology, and was named a "Go-To Law Firm for Leading Technology Companies" by American Lawyer Media in 2008.

Stanford University Press has just published Robert’s new book, The Genie in the Machine: How Computer-Automated Inventing is Revolutionizing Law and Business, and the ideas behind it – the manner in which such automated inventing strays from and thus may impact the paradigms under which we understand patent prosecution and patent law – fascinate me. The Boston ERISA and Insurance Litigation blog, despite its massive advertising revenue (place tongue firmly in cheek while reading that line), lost the bidding for serialization rights for the book, so I asked Robert if he would write a series of blog posts detailing the issues covered by the book. Robert agreed, and I plan to run them every Friday for the next few weeks. Note that Robert’s blog on automated inventing, by the way, can be found here.

Here’s the first of the series:

Automatic Product Design and Its Impact on Patent Law

Inventors have long been using software to help them design new products. For example, computer-aided design (CAD) software enables engineers to draw three-dimensional models of the components of an automobile engine, and even to "connect" those components together to see how they will interact without needing to build physical prototypes.

Few people are aware that software now exists which can not only display product designs which have been drawn by a human engineer, but also create such designs itself. In addition, today’s latest "artificial invention" software can simulate the operation of a new product — such as an automobile engine — evaluate its performance, and then refine the product design repeatedly to improve the end product. One example of such software — Stephen Thaler’s "Creativity Machine" — has been called "Thomas Edison in a box." In my book, The Genie in the Machine, I describe the history of such technology and provide many real-world examples of the products it has been used to create — everything from toothbrushes to antennas to the nosecone on the Japanese bullet train.

Artificial invention technology has the potential to enable us to create better products more quickly and inexpensively than ever before. Such software often produces designs that surprise expert human inventors, because software lacks the blindspots and prejudices that can stop human engineers from pursuing pathways that are fruitful but which contradict conventional wisdom. Businesses are already using invention automation software — including evolutionary algorithms and artificial neural networks — to slash their research and development costs.

Patent law has yet to grapple with the implications of computer-automated inventing. Yet it must do so if patent law is to continue promoting innovation. In my next blog entry, I will point out some of the challenges that artificial invention technology poses for patent law.

Maybe of what not to do.

I couldn’t let this go by without noting it – he has a Nobel after all and I, well, I have a sixth man award from a high school basketball team. Paul Krugman on health care reform:

Without an effective public option, the Obama health care reform will be simply a national version of the health care reform in Massachusetts: a system that is a lot better than nothing but has done little to address the fundamental problem of a fragmented system, and as a result has done little to control rising health care costs.

I think I have read that description of the Massachusetts act before. No, wait, I think I wrote it.

Just too funny not to post this today, even though this was supposed to be a post-free Friday while I finish up a brief. Randy Maniloff of White and Williams has done a (mock) thorough piece of opposition research into the new Supreme Court nominee and discovered, somewhat apparently to his shock, that her rulings reflect a consistent trend of finding in favor of insurers, rather than insureds, on coverage and bad faith issues that have come before her. His piece detailing this is here.

My take? The decisions and quotes Randy highlights reflect a focus by the judge on the specific facts of the cases and on the details of specific insurance coverage doctrines, rather than a looser approach of relying on easy maxims that tend to add up to nothing more than the tie goes to the runner, which in this area means the insured, such as “ambiguous provisions must be construed against the insurance company.” When you focus on the facts of the cases and the details of this area of the law, you don’t end up with any sort of an insured oriented bias, and instead you often find that the insurer’s decision is upheld because the insurer used that same focus in the first instance in making its own decision with regard to coverage.

Kudos to Randy, for again using humor to shed some light into the dark corners of insurance coverage law, this time, whether intentionally or not, on the extent to which judicial approach affects the outcome of coverage cases.

Thanks to Point of Law for passing his piece along.

Well, I have argued more than once on these electronic pages that ERISA preemption, rather than being the whipping boy of choice for people who advocate state level health insurance mandates, should be understood as a key element in bringing about any type of effective change to the health insurance system. Why is that? Because ERISA preemption forbids the states from enacting health insurance reform statues since states cannot enact them without either deliberately or unavoidably rejiggering employer provided – and thus ERISA governed – health plans, meaning that any real change from the current employer provided (and voluntary) health insurance system can only take place on a national level. And why is this in turn good? Because states are kidding themselves if they think that they can, financially, pull off reform of the system on their own, as this article here demonstrates yet again. Although buried behind the praise for the fact that the state reform has increased access by decreasing the numbers of uninsured, the article notes that affordability problems have arisen, which cannot “be blamed on the state’s overhaul, but on a much larger and troubling national trend [which is that] [h]ealthcare costs, in general, are increasing faster than inflation.” The city of San Francisco, or the Commonwealth of Massachusetts, cannot solve that problem, and they can’t fund it on their own, either. It’s a national problem, and one that ERISA preemption demands be handled nationally.