January 2010
by Martin Lasden

Up until eight months ago, it seemed that Ted Olson could do no wrong with the Fox News crowd. He was, after all, a lawyer who had played a key role in putting George W. Bush in the White House in 2000 (see Bush v. Gore). He also served as Bush's solicitor general, and in that job he tirelessly defended the administration's broad interpretation of its wartime powers, whether they pertained to the surveillance of U.S. citizens or the interrogation of detainees.

Civil rights advocates naturally detested him.

Yet, on May 27, 2009, this same lawyer stood before a roomful of reporters at the Millennium Biltmore Hotel in downtown Los Angeles to announce that he was joining forces with his old adversary, trial attorney David Boies, to file a federal complaint against Proposition 8—the recently enacted ballot initiative that effectively bans same-sex marriages in California. Olson's coming out no doubt left many of his conservative admirers in shock. But even those within the gay community expressed wariness.

As one suspicious blog commenter wrote: "Maybe the far right wants this issue to go up to the Supreme Court, where the chances of a ruling favorable to gay rights are low. This will certainly energize the conservative base—and if SCOTUS [Supreme Court of the United States] rules against gay marriage, the cause will be set back by years, if not decades."

It's a reasonable point. So far, five states—Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont—have given the green light to same-sex marriage, and other states may well follow in the next few years. But if Perry v. Schwarzenegger, the federal lawsuit that Olson and Boies are now championing, makes it all the way to the U.S. Supreme Court, it could trigger a broad enough ruling to bring state-by-state efforts to a screeching halt.

In this month's cover story ("Anatomy of a Complaint") California Lawyer's managing editor, Chuleenan Svetvilas, looks at the story behind the Perry filing and sheds new light on the controversy surrounding it. "There were some conspiracy theories about Ted Olson's involvement," Svetvilas acknowledges. "But I found that the lawyers representing gay and lesbian groups welcomed his participation. And that was a surprise to me. They felt very strongly that it was a positive development, and that he wouldn't take this case just to lose it."

Also in this issue, Associate Editor Rene Ciria-Cruz looks at how big technology companies are defending themselves against so-called patent trolls ("Patently Contentious"). These trolls have long had an image problem in the tech world, if only because they typically don't manufacture anything of substance. (Rather, they're in the business of purchasing patents just to sue violators.) However, as Ciria-Cruz reports, this easy money may be getting harder to come by. One reason: Defense attorneys are becoming more aggressive about having plaintiffs' patents reexamined and invalidated. Another is the rise of what are called defensive patent aggregators, which buy patents and license them to members. "Until a couple of years ago, patent trolls were clobbering companies," says Ciria-Cruz. "Now, it seems the other side is fighting back harder."