A table from Branko Gerovac’s website, Empirical Reality compares the technology areas of Massachusetts and Silicon Valley The two areas are far more alike, on the statistical level, than I had realized –
2008
Boston CSA*
San Francisco CSA
Total population
7,514,759
7,354,444
Population 25 years and over
5,086,671
5,013,980
Bachelor’s degree
21.80%
24.70%
Graduate or professional degree
15.60%
16.60%
Population 16 years and over
6,047,131
5,888,844
In labor force
69.60%
67.60%
Unemployed
4.00%
4.10%
Median household income (dollars)
66,723
77,247
Mean earnings (dollars)
90,213
104,526
Per capita income (dollars)
34,324
39,069
Households
2,835,304
2,628,007
Owner-occupied housing units
64.60%
58.80%
Median home value (dollars)
345,000
656,500
(* CSA stands for “Combined Statistical Area”)
However, it’s no more accurate to say these two regions are comparable than it is to say that two 175 pound men are comparable – one may be all muscle, the other, well …..
Unfortunately, as Mr. Gerovac details in a number of other posts, Boston is far behind Silicon Valley in innovation, start-ups, and a variety of other key factors central to business development. Mr. Gerovac quotes from an October 2009 TechCrunch article by Vivek Wadhwa, who wrote as follows (selected quotes):
Ever heard of Route 128? To my surprise, neither have any of my students at Duke or the entrepreneurs I’ve met in Silicon Valley. I’m surprised because it wasn’t so long ago that Silicon Valley was considered a poor cousin of Boston’s tech center—a cluster of technology companies located along this freeway which partially rings the city. Starting in the 1960s and on through the 1980s, Route 128 was, if anything, more closely associated with tech than Silicon Valley. Today few young technology workers even know where Route 128 is located, let alone its importance in the tech world. Silicon Valley has simply left Boston’s tech center behind.
In the 1980’s … if you were betting on one you’d have been wise to bet on Route 128 because of its longer industrial history and proximity to a large number of high quality educational institutions . . . and proximity to Bell Labs and other large corporate research centers. . . . Now, . . . Boston is a distant second nationally to Silicon Valley in technology entrepreneurship. So, what happened to Boston?
A young professor at UC-Berkeley, AnnaLee Saxenian, wrote a book in 1994 which answers this question. At a time when Boston still thought it was the powerhouse of the tech industry, Saxenian declared Boston the loser in the tech race and explained why it would only fall further behind. This book was titledRegional Advantage: Culture and Competition in Silicon Valley and Route 128. It kicked off a firestorm of criticism from the Boston elite. Saxenian also alienated friends at her alma mater, MIT.
She noted that Silicon Valley had an amazing dynamism about it. There were extensive professional networks, job hopping was the norm, information was exchanged openly, and the culture encouraged risk taking. The Silicon Valley ecosystem supported entrepreneurial experimentation and collective learning. In other words, Silicon Valley was a very open network—a giant social networking site working in analog before the concept of such a thing even existed.
This organizational mechanism was in sharp contrast to that of Route 128. Dominated by large, vertically integrated, and secretive minicomputer producers such as DEC, Wang, Prime, and Data General. Technology, skill, and know-how were trapped within the boundaries of the large corporations.
The differences were evident at many levels: venture capitalists in Silicon Valley had deep roots in local networks and were far more nimble than their east coast counterparts; educational institutions and research labs in the West partnered with local startups as well as more established firms, while those in the East worked only with the largest corporations; and the meritocratic openness of Silicon Valley made it a magnet for non-traditional talent and immigrants.
By the mid-1990s the east had missed the shift from minicomputers to personal computers as the flexible Silicon Valley ecosystem sped ahead with innovation across a diversifying range of components and systems going from chips, routers, and application software to ecommerce and search engines. Today Silicon Valley is the leading location for cleantech venture activity, an area widely considered to be the next big value creation engine for the U.S. and the world.
Boston, however, is no slouch. The Route 128 community remains the second biggest in the U.S. in terms of venture funds committed. Boston has powerful research institutions, still, and lots of very strong companies. In some areas, such as biotech, Boston may even rival Silicon Valley. But overall, its pretty clear that the Valley has not only won but is racing further ahead.
Most entrepreneurs and engineers that come to Silicon Valley, come to experience this network and to embrace the culture it has created. That’s why I came, too. Network effects don’t just work for fax machines. But then again, most of them knew that intrinsically. University guys like me need to do a bunch of surveys to figure it out. They voted with their hearts and feet.
Gerovac presents an interesting graph on his site comparing the percentage of tech company founders who established a start-up in the same state in which they received a degree. California ranks tops at 69%, compared with 29% in Massachusetts (which is below the study average of 45%).
In our firm we’ve been talking informally about this phenomenon for years, and these posts are food for much thought. Could it be simply that California is a lot softer on noncompete agreements than Massachusetts is? I’ve always wondered whether it could be something as simple as the weather.
Joel’s last chance before Massachusetts Federal District Court Judge Gertner (“Joel Fights Back”) is his post-judgment motion to set aside or reduce the damages award against him on the grounds that the judgment is unconstitutional – after all, what government would punish a student to the tune of tens of thousands of dollars for a crummy mp3 download he could have purchased for less than a buck? Ours, of course.
Joel’s Harvard Prof. lawyers filed a motion – punitive and unconstitutional, said they.
The DOJ disagrees. Quite proper, say they, per brief below.
It’s not for me to say, but I’m thinking that there are some pretty big egos on the defense side of this case. Nothing wrong with that, of course ….. 😉
The ConnectU/Facebook legal saga is truly astounding. Imagine a mature Oak tree. Now give the it properties of Kudzu vine (the “vine that ate the South”). Each branch of this tree is another lawsuit involving ConnectU, Facebook, the principals, and their lawyers.
Now, a new branch has burst forth. Wayne Chang has sued ConnectU and its lawyers in Superior Court Business Litigation Session in Suffolk County, Boston, claiming that Chang is entitled to as much as 50% of the value of the ConnectU/Facebook settlement (so called, since ConnectU has challenged the finality of the settlement).
A phish I received this weekend. These are getting better and better (no typos, no foreign language malapropisms), and I can easily see some small percentage of recipients getting “caught” by this phishing expedition. These links get shut down almost immediately, but I have disabled this link, in the same spirit that I’d be careful with an empty gun.
In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up on a reef with razor sharp coral when the Federal Circuit may have refused to reverse a $290 million trial verdict on what the court considered a waiver technicality.
As every experienced trial lawyer knows, trials are a virtual waiver landmine – if you don’t proffer the evidence a judge excludes, you’ve waived it on appeal. If you don’t object to jury instructions, you waive the right to challenge them on appeal. This list seems almost endless, and there’s nothing a federal court of appeals likes more than to dismiss an argument on the grounds that it was, somehow, waived during trial.
This having been said, there are a few potential waivers points that lawyers absolutely MUST keep in mind – to the point where the documents that will avoid the waiver should be prepared before trial, subject only to updating as the trial progresses and the moment of truth (or waiver) is reached. One of the most important potential waiver risks arises under FRCP 50.
Before the case goes to the jury the defendant MUST move for judgment as a matter of law (or “JMOL”) – failure to do so means the defendant has waived its right to do so following the jury verdict. Thus, even if the ultimate jury verdict is without a legally sufficient evidentiary basis, the judge may not upset it if the defendant failed to make a timely motion for JMOL. (The reasons for this are arcane, and not of great importance here, but the fact that the motion MUST be made pre-jury, in order for it to be made post-jury is very important). Best practice is to move for JMOL at the close of plaintiff’s case, and again at the close of all of the evidence.
The JMOL motion must address all issues that form the basis for the motion, and it must be specific – the lawyer cannot simply state, “We move for judgment as a matter of law because plaintiff has failed to satisfy the elements of its cause of action.” This is where the trial lawyer, who is preparing for closing argument, working on jury instructions, dealing with the client, must pay attention. The best practice is to have an associate, with a checklist, who will remind you (force you, if necessary) to address this issue.
What happened in the i4i/Microsoft case?
At the close of evidence Microsoft moved for judgment as a matter of law on various grounds:infringement, willfulness and validity of the i4i patent, but not obviousness as to a certain piece of prior art or, quite importantly, damages.
As a result, the Federal Circuit held that it was barred from considering whether the jury’s damages award was supported by the evidence. as Microsoft requested that it do. The Federal Circuit stated:
Had Microsoft filed a pre-verdict JMOL, it is true that the outcome might have been different. Given the opportunity to review the sufficiency of the evidence, we could have considered whether the $200 million damages award was “grossly excessive or monstrous” in light of Word’s retail price and the licensing fees Microsoft paid for other patents. Cf. Lucent, 580 F.3d at 1325-32. As this court did in Lucent, we could have analyzed the evidentiary basis for the Georgia-Pacific factors, and whether the benchmark (XMetaL) was sufficiently comparable.
However, we cannot. Instead of the more searching review permitted under Rule 50(b), we are constrained to review the verdict under the much narrower standard applied to denials of new trial motions. . . . This standard is highly deferential: we may set aside a damages award and remand for a new trial “only upon a clear showing of excessiveness.” . . . To be excessive, the award must exceed the “maximum amount calculable from the evidence.” . . . We must affirm unless the appellant clearly shows there was no evidence to support the jury’s verdict. . . .
Under this highly deferential standard, we cannot say that Microsoft is entitled to a new trial on damages. The damages award, while high, was supported by the evidence presented at trial, including the expert testimony—which the jury apparently credited. . . . Given the intensely factual nature of a damages determination and our deferential standard of review, we are not in a position to second-guess or substitute our judgment for the jury’s.
No one can say whether the Federal Circuit would have upset the damages award had it applied the more rigorous standard that would have resulted from a pre-jury JMOL motion on damages, but clearly, one must wonder.
To thicken the plot, Microsoft has now asked the Federal Circuit to rehear the case en banc (Microsoft’s brief requesting en banc review here), arguing that the JMOL rule does not apply to damages (since, by definition, damages have not been awarded pre-jury verdict), and presenting a number of other challenges to the damages award. The brief asserts that this case represents “the largest [damages award] ever sustained on appeal in a patent infringement case.”
It’s rare for a federal circuit court to rehear a case en banc where some fundamental issue of law of broad applicability is not at stake, so it will be interesting to see how the Federal Circuit handles this request. Worst case, should it decline, lawyers will have to add to their trial checklist a JMOV motion directed at damages, even before the jury awards damages.
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or the entrepreneurs I’ve met in Silicon Valley. I’m surprised because it wasn’t so long ago that Silicon Valley was considered a poor cousin of Boston’s tech center—a cluster of technology companies located along this freeway which partially rings the city. Starting in the 1960s and on through the 1980s, Route 128 was, if anything, more closely associated with tech than Silicon Valley. Today few young technology workers even know where Route 128 is located, let alone its importance in the tech world. Silicon Valley has simply left Boston’s tech center behind.
