Month: December 2016 (page 1 of 2)

Why You Have That Employment Agreement Gobbledygook

By Pamela Chestek

Plaintiff Advanced Video Technologies has been around the block a few times already. AVT claimed to be the successor to a patent for a video codec. It had successfully asserted the patent against other defendants but ran into some problems when trying to sue HTC Corp., Blackberry and Motorola Mobility. Its first attempt failed because there was a missing link in the chain of title, meaning AVT didn’t actually own the patent. AVT didn’t appeal but instead had a receiver appointed for the sole purpose of transferring the ownership of the patent. The receiver assigned the patent to AVT and AVT started over again with HTC, Blackberry and Motorola Mobility.

Just a cast of characters first, there are many players to keep straight:

  • Infochips was the original employer of the inventors but it went out of business before the patent application was filed;
  • Woo was an inventor who bought the Infochip assets;
  • Woo assigned the assets to AVC, a predecessor to plaintiff AVT (“C” is before “T” in the alphabet, just keep that in mind when reading).
  • Epogy was the entity that supposedly owned the patent but didn’t, thus breaking the chain of title the first time around.

It’s actually more complicated than that, but that’s enough for our purposes.

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Raise the Age For the N.C. Juvenile Justice System

By Eric Zogry and Marcus Thompson

The N.C. Commission on the Administration of Law and Justice’s Committee on Criminal Investigation and Adjudication is recommending that North Carolina raise the age of juvenile jurisdiction to include all youth under the age of 18 for all crimes.  Juveniles aged 16 and 17 charged with the most serious felonies may be transferred to the adult system after a finding of probable cause or indictment.  Other recommendations include reducing school-based recommendations to the juvenile justice system and regular training for law enforcement in handling juveniles.  This proposal also recommends more information be provided for law enforcement officers who may interact with juveniles and that information on juvenile records should be more accessible to prosecutors.

Since 1919, North Carolina has been the only state to treat youth ages 16 and 17 years old as adults in the justice system without exception.  However, substantial evidence supports that keeping individuals under the age of 18 in the juvenile justice system rather than the criminal justice system would have a significant beneficial impact on everyone involved, including benefitting the justice system economically.

Statistical data indicates that 96.7 percent of convictions for youth are usually for nonviolent felonies and misdemeanors, with misdemeanors making up 80.4 percent of these crimes.  Scientific studies suggest that because of the maturity level of the brain, for teens the ability to reason and control impulsive behaviors is very limited.  Reports from the John Locke Foundation also support that youth convicted in the criminal court system are actually more likely to be repeat offenders due to light sentencing for petty crimes, less support, and immaturity of the brain to consider the consequences of their actions.  Several United States Supreme Court cases have also held that the treatment of juveniles as adults in certain circumstances violates their Eighth Amendment right.

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Health Law Section Chair’s Report

By Kim Licata

Happy holidays! This time of year gives us time to look back over the past months and forward to what’s ahead.  With this in mind, like my counterpart at the N.C. Society of Health Care Attorneys, President Jessica Lewis, I have the unique opportunity to welcome you to the new electronic-only Prognosis format. The hard work of our Newsletter Committee and the editors from the society has led to the successful launch of our new blog format.

At last year’s annual meeting in April,  the section welcomed new council members Andrew Walsh, general counsel for Partners Behavioral Health; Scott Templeton of Robinson Lawing; Sarah Crotts of Wall Babcock LLP; Ian Stauffer of Poyner Spruill, and Marc Hewitt of Smith Moore. We welcome back our council members from prior years as well. In addition to myself, our section officers are Jennifer Hutchens of Robinson Bradshaw as our vice chair, Kimberly Kirk of Moore Van Allen as our secretary, and Tina Simpson of Burgeon Legal Group as our treasurer.  Our Section Council and Committee members have been active so far this year in planning and I am looking forward to seeing all the great things we can do together this term.

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N.C. Society of Health Care Attorneys President’s Report

By Jessica M. Lewis

Happy holidays to my fellow members of the NC Society of Health Care Attorneys, and welcome to the new electronic-only Prognosis format.  Congratulations to the Editors and the NCBA Health Law Section Newsletter Committee for successfully bringing the new format to fruition.  It is certain to improve access to more timely content and thus continue to serve as a valued resource for many members of the Section and Society.

The Society wrapped up its 2015-16 year with an engaging Annual Meeting and CLE, full of both timely topics delivered by field experts and excellent networking opportunities afforded by the exceptional membership, sponsors, presenters, and attendees.  The Society welcomed to the Board Hilary Bowman as a Director, Robb Leandro as Secretary-Treasurer, and Elizabeth Runyon as President-Elect.  The Education Committee, now chaired by Elizabeth, has already begun to plan next year’s annual program, which will again be hosted at the ever popular Rizzo Center in Chapel Hill on October 6, 2017.  Please mark your calendars now!

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Give Back Because It Is the Right Thing To Do

By Kimberly M. Johnson

It’s hard, sometimes, to give back to the community. Doubts creep into your mind (and your wallet). “Did he really get those items?” “Is she appreciative?”  “Where is the money going?”  I walked that tightrope a time or two when I donated clothes, penned a check or provided in-kind support. Yet, I continue to walk that tightrope because giving back is the right thing to do.

The right thing to do can be demonstrated in a legal setting. When I worked as a paralegal in a public defender’s office, I designed an internship for undergrads (Social work majors, English majors, math majors) not on the pre-law track, but interested in criminal law. The senior administration, attorneys and professors at the local colleges viewed the concept as a win-win.  It helped that one of the professors was a former Family Court judge.  Paralegals and admin staff pitched in to train the interns to succeed in and out of the courtrooms.

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MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please find his most recent links here.

U.S. Joint Strategic Plan On Intellectual Property Enforcement Announced

Correction To Proposed Amendment To the Rules of Practice Before the Trademark Trial and Appeal Board (TTAB)

Copyright 2016 North Carolina Bar Association.

Lawyer-Turned-Teacher: Mock Trial Competition Teaches Students To Think On Their Feet

By Jesse Pittard

I have been involved with the North Carolina Bar Association’s Justice Iredell Middle School Mock Trial tournament for six years. The mock trial program is the most meaningful and influential activity that my students participate in. It helps students to become confident in themselves and their abilities.  Students who participate in mock trial not only learn about the justice system but acquire important skills that help them be successful in and out of the classroom.

Mock trial teaches students skills that are not easily acquired in the classroom.  First, mock trial helps to develop students’ analytical abilities.  Mock trial takes students beyond memorization.  Instead of memorization, students have to learn to organize facts, apply the facts to the law, and then to use these facts to build a case.  To see middle school students do this is simply amazing.

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MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please find his most recent links below.

Service Provider Designation of Agent to Receive Notifications of Claimed Copyright Infringement

Internship Experience: Learning From the Ground Up

By Rachel Procaccini

Living in the state of North Carolina — home of the breathtaking Blue Ridge Mountains, a coastline over 300 miles long and approximately 50,000 farms in operation — it is important, for both North Carolina’s economic stability and for the future health of North Carolina’s natural landscape, to utilize the land, water and natural resources, all the while conserving, replanting and replenishing the resources we use.

Upon completion of my first year of law school at the University of North Carolina School of Law, I spent my summer serving as a legal intern with the Office of the General Counsel (OGC) for the North Carolina Department of Environmental Quality (DEQ). DEQ’s OGC attorneys appreciate that farmers, fishermen, hunters and educators depend on the use of the environment for their economic livelihood and for their recreational and educational enjoyment of the state’s natural resources. DEQ’s OGC attorneys utilize the laws and regulations of the state to ensure that commercial, recreational and educational interests can reap the benefits of the environment while still conserving those resources for their continuous bounty.

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EEOC Wants In On NLRB’s Fun: EEOC Focuses On Waivers, Releases and Arbitration Agreements

By Joseph S. Murray IV

For the past couple of years, the nonunion employment bar has watched as the National Labor Relations Board upended the law surrounding handbooks, waivers, arbitration agreements and a host of other aspects of the employment relationships. The Equal Employment Opportunity Commission, apparently not content to allow the NLRB to have all of the fun, has stepped up the use of its authority to attack separation and employment agreements.

In EEOC v. CVS Pharm., Inc., 809 F.3d 335 (7th Cir. 2015), the EEOC contended that CVS’ standard severance agreement constituted a pattern and practice of resistance to the full enjoyment of rights in violation of Section 707(a) of Title VII (42 U.S.C. § 2000e-6). The EEOC pointed to seven specific clauses it believed violated Title VII. EEOC v. CVS Pharm., Inc. Cmplt. ¶ 8.a.–f. (last visited Dec. 6, 2016). The EEOC contended the clauses each contained language that interfered with an employee’s right to file a charge with the EEOC or to participate in an EEOC investigation.

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