Intellectual Property Law Section members:
The Intellectual Property Law Section of the North Carolina Bar Association is seeking nominations for its 2016 Outstanding Achievement Pro Bono Award. This award is intended to foster and recognize the outstanding pro bono efforts undertaken by IP Section members during the year of 2016. Please take a few moments to nominate yourself or another IP Section member (including law firms and other organizations such as in-house legal departments) and summarize the qualifying pro bono activities performed by the candidate during the past year. Thank you in advance for your nominations and for your encouragement of the pro bono efforts of the IP Section’s members.
By Daniel Walker Cole
Suppose you are a small company in California asserting a patent against a North Carolina-based company. You gathered finances, hired a lawyer, and filed a complaint. Now you are ready to start litigating your patent infringement case, but you receive a summons for violating NC 75 Article 8. This may seem utterly fantastical, but under North Carolina’s anti “patent troll” legislation it is not.
Next to issues surrounding 35 USC section 101, the supposed abusive litigation by “patent trolls” is one of the most discussed issues in patent law. North Carolina, along with several other states, has enacted laws aimed at curbing this practice. The law, however, suffers from several potential pitfalls. It gives North Carolina courts personal jurisdiction over anyone who sues a North Carolina based entity for patent infringement, even if the patent infringement suit takes place in another state. Lack of contacts, other than serving a North Carolina based entity, are irrelevant. Accordingly, a discussion on the likelihood of federal preemption follows.
By Kristi A. Nickodem
On Dec. 1, 2016, the Occupational Safety and Health Administration (OSHA) began enforcement of the anti-retaliation provisions of its controversial final rule on Recording and Reporting Occupational Injuries and Illnesses.1 OSHA has offered extensive guidance on its interpretation and enforcement of the new anti-retaliation provisions.2 This guidance, along with the rule itself, addresses important issues relating to injury and illness reporting procedures, drug testing policies, safety incentive programs, and disciplinary programs.
The anti-retaliation provisions originally took effect on Aug. 10, but enforcement of these provisions was delayed twice by OSHA as a result of substantial industry pushback on the rule and a legal challenge from business groups.3 On Nov. 28, a federal district judge denied an injunction to block the rule on Nov. 28, allowing OSHA’s enforcement of the challenged provisions to begin on Dec. 1.4
By M. Riana Smith
Happy 2017! While it is the new year for everyone else, this time of year marks the half-way point of our bar year, which provides a great opportunity to see what we have accomplished so far, what is new and what is upcoming. Let’s start with what’s new. I am excited to introduce you to the section’s new blog format.
Rather than receiving our newsletter approximately every four months, you will receive more frequent posts on items of interest and affecting our section members – typically on a monthly basis. The motivation behind this change is to provide the members more timely access to important information instead of waiting until we have enough articles for the Change Order or until the next deadline. Expect to still receive the same great articles from section authors that you always have, but also look forward to blogs on other areas of law that may affect your practice, as well as legislative and case law updates. Changing the format has been in the works for some time. I want to thank the Newsletter Committee: Jonathan Massell, Lindsey Powell, Gib Laite and Todd Jones for their hard work that led to the successful launch of our new blog format. If you have ideas for a blog, an article (perhaps broken into a series of blog posts), or see another blog that should be re-blogged, please email our co-chairs (listed above) so they can make plans to include in future posts. Also, we welcome your feedback on this new format – good, bad (aka kindly constructive), or in-between, so we can continue to improve and better serve the section.
By Douglas B. Thie
In the week after his inauguration, President Donald Trump signed three executive orders that will significantly affect non-U.S. citizens both immediately and in the coming months. Most recently, he signed an executive order titled Protecting the Nation from Foreign Terrorist Entry into the United States. This order contains two important provisions that affect non-U.S. citizen students and academic professionals, which are discussed in detail below.
First, the order suspends the issuance of visas and other immigration benefits to nationals of seven countries. These countries include Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. Second, the order prohibits the entry of nonimmigrant visa holders from these seven countries to the United States for 90 days and cancels their visas. Ninety days from the date of the order is April 27, 2017. There is no guarantee that either of these provisions will not be extended past the 90 day period.
By Robert Ward
HB2 will be the subject of the Constitutional Rights & Responsibilities Section’s upcoming annual CLE on Thursday, Feb. 9 at the Bar Center in Cary. During the section’s most recent council meeting, Eric Doggett, co-chair of our CLE committee, gave a brief summary and circulated a copy of the CLE program, which will focus on Session Law 2016-3 (House Bill2) Public Facilities Privacy and Security Act. This program will include the following topics: an HB2 overview; HB2 and the Constitution; HB2 and employment law; and panel discussions addressing the interplay between local and state authority and the status of pending court proceedings challenging HB2. This CLE program will help to better understand the details of this law and its potential implications. This program will be presented on please mark your calendars and plan to attend to earn CLE credit and learn about this timely statewide topic.
The council meeting on Nov. 17, 2016, at the Bar Center also included a great beginning with remarks from four students from The Cary Academy: Grace Jin, a senior; three juniors, Danielle Carr, Max Nunez and Margaret Velto; and their history and government teacher Maret Jones. It continued with an explanation from them as to how they related their classroom study of the U.S. Constitution to current events. As you might imagine, the discussion that ensued was very informative and entertaining. One particular classroom project conducted by these students was the convening of a mock constitutional convention in which they went over the Constitution line by line in an effort to determine if and how it could be amended to better address our changing times. Not surprisingly, these students concluded that the Constitution was very well written, and that underscores how it has withstood the test of time. Also, when asked by the council, the students responded that they would make very few changes to this venerable document. On behalf of the council I presented each student a certificate of appreciation, a reprint of the U.S. Constitution and a copy of the book “Constitutional Law for Kids” by Ursula Furi-Perry, published by the American Bar Association and provided by the NCBA’s Law Related Education Department.
Committee updates included Colin Shive’s report for our blog, The Constitutionalist. He informed the council that the Sept. 2, 2016 blog post contained an article entitled, “Economic Liberty Challenges In the 21st Century” by Drew Erteschik and J. M. Durnovich. Blog Chair Colin Shive further reported that there would be forthcoming articles for our blog from students from Elon University School of Law.
By Joyce Brafford
How many times a day do you think about going paperless? What about email security or digital backups? Do you spend time wondering about document automation or online legal research? Have you been thinking about upgrading your virtual law practice management tools or client communication software?
If you’ve thought about any of those questions, or if you’re just starting to think about how technology can make your practice more efficient, you’ll find something to love at the ABA Techshow 2017. And as an NCBA Member, you’re entitled to a discount! Just use code: EP1720.
ABA Techshow is the premier conference for legal technology innovators and lawyers who want to better their practices through technology. As always Techshow will happen in March in Chicago. I know. It’s not as easy as a conference at Wrightsville Beach, but it’s a great opportunity to make your practice more efficient, more responsive, and ultimately, more profitable. But I get that a multi-day trip can be intimidating, especially if you’ve never attended the conference before. So here are my top five tips for getting ready.
By Jennifer Cotner
On January 25, 2017, the 4th Circuit U.S. Court of Appeals issued two game-changing companion decisions impacting the test for determining joint and several liability under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§201, et seq., for joint employers.
Salinas, et al. v. Commercial Interiors, Inc., et al., No. 15-1915
In Salinas, the plaintiffs were employees of J.I. General Contractors, Inc. (“J.I.”), a drywall installation contractor. Plaintiff sued J.I. and Commercial Interiors, Inc. – a company offering general contracting and interior finishing services, including drywall installation – in this putative collective action as joint employers, alleging violations of the FLSA and Maryland law. The U.S. District Court of Maryland granted summary judgment to Commercial, holding that it did not jointly employ plaintiffs because J.I. and Commercial Interiors were in a traditional contractor-subcontractor relationship not intended to evade compliance with the FLSA.
By Anitra K. Brown
Can a company disguise its control over a workforce through a myriad of affiliate companies? Apparently not. DIRECTV recently learned the hard way that its “web of agreements” revealed a joint employer relationship with its affiliates. These entities directly hired the field technicians responsible for installing and servicing DIRECTV’s satellites. The 4th Circuit panel, which included Judges Wynn, Floyd, and Harris, recently clarified in Marlon Hall v. DIRECTV, LLC, No. 15-1858 (argued Oct. 27, 2016). The proper test to determine if an employer could be held jointly and severally liable in a FLSA action as a joint employer.
The Plaintiffs in Hall claimed to be employees, not independent contractors, installing satellite television. Both the panel and the lower court agreed with this assessment. Plaintiffs were hired by affiliate companies based on DIRECTV’s requirements and background checks. Per the employee agreements, Plaintiffs’ work schedules were controlled by DIRECTV and they had to wear the company’s uniform. Further, DIRECTV was their primary, if not only, client.
Consequently, the Plaintiffs in Hall each brought a claim under FLSA against DIRECTV. Two of the plaintiffs, however, also brought an action against DirectSat as an affiliate and joint employer. These cases were transferred to and consolidated in the U.S. District Court for the District of Maryland. The district court dismissed the claims pursuant to a 12(b)(6) Motion holding that Plaintiffs failed to adequately allege that DIRECTV and DirectSat were joint employers. The Fourth Circuit panel reversed and remanded on substantive and procedural grounds.