Patent Law – The Patent Troll Update: News and Strategy – Summer 2016

The latest on patent trolls and how to stop them:

In June 2016, the US Supreme Court upheld the right of patent infringement defendants to seek Inter Partes review of the patent by the USPTO

A court overturned a $625 million verdict against Apple because a jury was prejudiced by references to another case

NPR covered All Prior Art’s efforts to create a database for prior art

Apple is being sued by someone who claims to have invented the iPhone in 1992

 

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ADA Lawsuits – updates on the defense of ADA cases – summer 2016

Recent ADA lawsuit news:

The East Bay has been dealing with a wave of ADA lawsuits.

Fresno’s Channel 30 investigated ADA lawsuits.

This year’s proposed California legislation to limit the impact of ADA lawsuits.

Finally, on May 10, 2016, California Governor Brown signed Senate Bill 269, which for claims filed on and after May 10, 2016, would limit the ability to collect damages for ADA lawsuits.  We will monitor how this law is implemented and will comment further in a future post.

This is an article on Senate Bill 269.

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Employment Law – Uber settles its way out of an uncomfortable situation

We previously reported on the lawsuits against Uber wherein the courts could have ruled on whether its drivers were independent contractors (as Uber contends) or employees.

A settlement agreement has been reached on these lawsuits (in California and Massachusetts) wherein Uber will pay as much as $100 million and agree to a few changes in its operations, including being more flexible about how many cancellations a driver can have in a period of time, agreeing to create drivers association, and allowing drivers to ask for tips.

The settlement is not finalized until it is approved by the courts.  If finalized, the settlement protects Uber’s business model of independent contractor drivers.  This would avoid dealing with all the issues employers, at least in California, deal with such as overtime, breaks, discrimination, harassment, and sick leave.  It also continues to allow drivers a measure of freedom to work when and for how long they want (subject to Uber’s existing driver policies).  The $100 million, if paid, would be distributed to the 385,000 drivers represented in the 2 lawsuits, so drivers should not expect to get rich from this settlement.  Not a bad deal for a company still looking to have an IPO in the future.

For more on this settlement, see these articles from the LA Times and the Verge.

 

 

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Patent Law – The Patent Troll Update: News and Strategy – Winter 2016

The latest on patent trolls and how to stop them:

2015 was the second biggest year ever for filing patent lawsuits.

A jury found Apple owes $626 million in damages for infringing a patent by the use of software including FaceTime and iMessage.

The National Retail Federation is lobbying Congress to pass patent reform legislation.

The Virginia Attorney General created a Patent Troll Unit to take action, including filing for injunctions, against patent trolls.

Finally, in a potentially interesting development, a number of companies started a joint patent licensing program that is supposed to the patent litigation version of “herd immunity.”

 

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ADA Lawsuits – updates on the defense of ADA cases – winter 2016

Recent ADA lawsuit news:

The Hanford Sentinel reports most ADA cases settle for less than $10,000, which is consistent with our experience

California Governor Brown vetoed SB 251, which would have allowed businesses time (ranging from 15 to 120 days) to fix ADA violations before an ADA lawsuit was filed.

Governor Brown did sign AB 1230, which provides access to construction loans for businesses to make themselves ADA compliant.

San Luis Obispo County gets hit with another wave of ADA lawsuits.

Just so California businesses do not think they are the only target of ADA lawsuits, Austin Texas businesses are facing their own ADA issues.

 

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Trademark Law – Pepperidge Farms thinks Trader Joe’s Crispy Cookies looks too much like Milano cookies

Pepperidge Farms sued Trader Joe’s in Connecticut Federal Court, claiming Trader Joe’s Crispy Cookies infringes Pepperidge Farms’ trademarks in its Milano cookies, i.e. the configuration of the Milano cookie [chocolate filling sandwiched between two oval shaped cookies] and packaging Milano cookies within fluted vertical paper trays inside a larger, upright package.

Trader Joe’s sells private brand Crispy Cookies, which have a chocolate filling sandwiched between two rounded rectangular cookies.  Crispy Cookies are packaged within a fluted plastic horizontal tray.

A comparison of how the two cookies are packaged can be found in this delish.com article.

A trademark owner can sue for trademark infringement if the alleged infringing party is using a mark in a way that creates a likelihood of confusion about the source of the alleged infringer’s product.  To determine whether there is a likelihood of confusion, courts will look at the strength of the trademark; the similarity of the trademarks; the similarity of the goods at issue; whether there is evidence consumers were actually confused; and the alleged infringer’s intent in using the marks.

Trader Joe’s is well-known for primarily selling private-brand products and it would seem most Trader Joe’s shoppers know they are buying Trader Joe’s products instead of Pepperidge Farms products.  However, the delish.com article notes that taken out of the packaging, it is possible to think Crispy Cookies are Milano cookies.

For more on this case, see this Reuters article.

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Patent Law – The Patent Troll Update: News and Strategy – Fall 2015

The latest on patent trolls and how to stop them:

Is the University of Wisconsin acting like a patent troll?

The requirements for writing a proper patent lawsuit have increased, but that may not change things much.

Nintendo prevails against a patent troll.

Things businesses can do to combat patent trolls.

Finally, Congress is still working on viable patent legislation.

 

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Copyright Law – Elizabeth Banks found not liable for copyright infringement in lawsuit about ‘Walk of Shame’

Elizabeth Banks showed a lot of spirit in her starring role in the 2014 comedy movie Walk of Shame, but the movie did not perform well at the box office (although it has since been a constant presence on HBO).

Despite the limited financial success of Walk of Shame, Banks and the production companies behind Walk of Shame were sued for copyright infringement.  The allegation was that Walk of Shame infringed the copyright from a movie script “Darci’s Walk of Shame,” that Banks and the production companies appear to have had access to in the past.

A federal court recently entered judgment in favor of Banks and the production companies on the grounds there was no copyright infringement.

To prove copyright infringement, it must be shown there is (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original.  Copying can be proven by showing the infringer had access to the copyrighted work and that the works at issue are substantially similar in their protected elements.  In the 9th Federal Circuit (which includes California), a lower standard of proof of substantial similarity is required when a high degree of access to the copyrighted work is shown.

In determining whether 2 works are substantially similar in the 9th Circuit, there is a two-part analysis, an extrinsic test and an intrinsic test.  The extrinsic test is an objective comparison of specific elements, i.e. plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.  Familiar stock scenes and themes are not protected.  Situations that flow naturally from a basic plot premise are not protected.  The intrinsic test test is a subjective comparison that focuses on whether an ordinary, reasonable audience would find the two works substantially similar in the total concept and feel of the works.

The court found there was reason to believe Banks and the production companies had access to the copyrighted Darci’s script, but there was no substantial similarity between the two works, even under the lower standard of proof of substantial similarity where access is shown.

The Walk of Shame lawsuit contended there were substantial similarities between the two works in that both works feature a female lead character living in a big city, who breaks up with her boyfriend, gets drunk, spends a one-nighter with a man she just met, wakes up disoriented, embarks on a walk of shame while wearing a bright dress to get to an important event, and finds romance with a man who helped her with her troubles.  However, the court first stated there was nothing original about a “walk of shame.”  In addition, there are certain elements that would flow directly from a story about a walk of shame: i.e. losing one’s wallet or phone so that there was not an immediate ability to return home; getting drunk; waking up disoriented in a strange place.  Also, there were substantial differences in the theme of the stories (Walk of Shame was focused on the lead character’s personal growth whereas Darci’s was focused on finding the right relationship), the setting (Walk of Shame was set in Downtown Los Angeles while Darci’s was largely based in Maui), the lead character’s dress, the mood and supporting characters.

The Walk of Shame case is a good example of the difficulties in proving two works are substantially similar, even where access is shown and on the surface it appears there are a number of similarities between the two works.

For more on this case, see this Hollywood Reporter article and the court’s ruling.

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Employment Law – Uber lawsuit on whether drivers are employees or independent contractors may change the Sharing Economy

Uber has gone from officially launching service in 2011 to being valued at up to $51 billion as of July 2015.  It is the most famous example of the growing number of companies that is part of the “sharing economy.”

However, Uber’s business model may change depending on the outcome of some ongoing lawsuits that involve the determination of whether Uber drivers are employees or independent contractors.

In California, the determination of whether a worker is an employee or an independent contractor is a two-stage analysis.  The first stage is whether there is evidence a worker provided services for an employer.  The second stage is whether the employer can prove the worker is an independent contractor.   A variety of factors help determine whether a worker is an independent contractor, the most important of which is the employer’s right to control work details or whether the employer retains all necessary control over the worker’s performance.  The right to control is more important than how much control an employer actually exercises.   An employer’s right to discharge at will, without cause, is strong evidence in support of an employment relationship.

Other factors include whether the one performing services is engaged in a distinct occupation or business; whether the occupation is usually done under the direction of a principal or by a specialist without supervision; the skill required in the occupation; whether the principal or worker supplies the tools and place of work; the length of time the services are to be performed; whether payment is by time or by the job; whether the work is part of the regular business of the principal; and whether the parties believe they are employer and employee.

In the pending O’Connor class action case against Uber, the court found Uber is a transportation company for which their drivers provide services for Uber.  Uber sets the fares it charges riders unilaterally.  Uber prohibits its drivers from soliciting rides from User riders outside the Uber app.  Uber exercises substantial control over the qualification and selection of its drivers.  Uber regularly terminates the accounts of drivers who do not perform up to Uber’s standards.  Uber receives a percentage of each fare its drivers earn.  Based on this, the court ruled the question of whether an Uber driver is an employee or independent contractor is one that must be decided by a jury.

For more on this case, see this website operated by the attorneys for the Plaintiffs in the O’Connor case, a response from Uber to recent court rulings on lawsuits against Uber, and this Wired Magazine article on the Uber lawsuits.

Finally, this is information from the California Department of Industrial Relations on how to tell if you are an employee or independent contractor.

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Employment Law – Increase in Minimum Wage in some California Cities is a Good Time to Review Tip Pooling Laws

California’s minimum wage is currently $9 per hour and will increase to $10 per hour on January 1, 2016.  Several California cities (such as the City and County of Los Angeles, San Francisco, and Oakland) have recently passed laws to eventually increase the minimum wage to as much as $15 per hour.

The rising minimum wages are creating considerable anxiety in the restaurant industry, as tipped workers (many of whom already earn more than $15 per hour) have thus far not been exempt from the new minimum wage laws.  Therefore, a tipped worker who is currently paid the minimum wage plus tips that results in total pay of over $15 per hour will eventually have to be paid the prevailing minimum wage plus tips, assuming tipping is still in fashion by that point.

Therefore, now is a good time to review California law on tipping.  The California Labor Commissioner has a good description of tipping law, but here are the highlights:

A tip is considered money paid to the employee, not the employer.  However, a mandatory service charge is considered money paid to the employer.  The employer then has the discretion to choose to distribute some or all of the service charge to the employees.

An employer cannot reduce wages based on tips received by that employee.  Therefore, an employer cannot fulfill payment of a minimum wage by paying a minimum wage but crediting/reducing the wage by the amount of tips received by that employee.

An employer can require tips to be pooled or shared with other employees who provide “direct table service” or who are in the “chain of service.”  This can include busboys and bartenders.  In general, supervisors or mangers or employers are not supposed to share in tip pooling.  However, in one situation a California court has approved of shift supervisors receiving part of a tip pool where their duties primarily consist of directly serving customers and tips are given to a collective tip jar where it was expected that all employees who served customers would share the tips.

 

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