◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for January, 2009
Equal Pay Act, Fair Pay Act, and the Paycheck Fairness Act
The US Congress is discussing two bills that may have a large impact on our entire population and many employers throughout the country. The Fair Pay Act is a legislative effort by the House to overcome a 2007 Supreme Court decision applying a 180 day statute of limitations to claims under the Equal Pay Act of 1963 or discrimination in payment.
The Fair Pay Act is an effort by the House to try and extend the statute of limitations over past pay discrimination. The bill is believed to be needed due to the difficulty or lag in discovering the pay disparities that form the basis of an Equal Pay Act or payment discrimination claims. However, there is a discovery rule that is often applied to statutes of limitations by Illinois courts that allows an individual to bring a claim even though the claim would be otherwise barred.
It’s not clear, if there has been an attempt to apply the discovery rule to the 180 day statute of limitations for Equal Pay Act or payment discrimination claims or if state agencies, such as, the Illinois Department of Human Rights (IDHR) or the Equal Employment Opportunity Commission (EEOC) would ever consider applying the discovery rule, but it may help alleviate some of the concerns behind the Fair Pay Act.
The Paycheck Fairness Act is an effort to add more bite or strength to the Equal Pay Act of 1963. The two bills have passed the US House of Representatives and seem to be poised for passage through the US Senate. It will be interesting to see what impact this has on female employees, employers, and the government agencies that are responsible for investigating and enforcing these regulations.
Registering a Copyright in a Computer Software Program.
Registering a copyright in a Computer Software program is often a vital part of an individual or company’s intellectual property strategy. The US Copyright Office has some special regulations regarding registering a computer software program. One of the keys in registering a Copyright in your software is the deposit requirement. The author, owner, or programmer must submit the source code in a CD Rom or a print form (PDF files are required).
If there is any trade secret material, then it must be blocked out before submitting the deposit to the US Copyright Office. If the program is less than 50 pages, then the entire source code must be provided in a visually perceptible format (i.e. a PDF file). If author does not have the source code for the software program, then there is a way to register the object code for the program under the US Copyright’s offices rule of doubt. The rules for software programs are slightly different from websites and screen displays, but the key is the deposit requirement.
The deposit requirement determines the scope of the copyright and once you get a registration, it is archived and accessible to others. This provides notice to others of the validity of your Copyright and the need to get a license from you. In addition to notice, the Copyright Registration provides the owner with a presumption of validity in the Copyright, allows the owner to sue under the US Copyright Act in Federal Courts, and allows the owner to seek statutory damages and attorney’s fees.
Registering a Copyright in your software program can provide a variety of benefits that individuals, consultants, programmers, film makers, photographers, small and mid size companies often overlook.
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What is the UDRP?
The UDRP is not some new rail system, but a method for resolving disputes relating to ownership of domain names. The Uniform Domain Name Dispute Resolution Policy or UDRP is a process for Trademark (TM) owners to assert claims to domain names that utilize their TM in violation of their rights. Often domain names are registered by others to benefit from a TM owner’s goodwill or to acquire a domain name and attempt to sell it to the TM owner.
The UDRP allows a TM owner to file a Complaint and a Brief in Support of the claim to the domain name based on the strength of their Trademark. The UDRP process is a more easy and efficient vehicle for the owner of a famous trademark to avoid the needless costs and fees associated with a civil lawsuit against the domain name owner. The UDRP is a limited process, whereby, a panel reviews the Complaint and the parties respective briefs to decide who has a superior claim to the domain name.
Although the UDRP process is easier and more cost effective, it does not permit the TM owner to get fees or damages. The UDRP process only permits the owner to sue to recover the rights to the domain name. However, this process provides a TM owner the option to recover the domain name without having to buy the domain name from the owner.
What is the person of ordinary skill in the art and why do I care?
The person of ordinary skill in the art (POOSA) is a hypothetical individual that demonstrates the level of knowledge within a particular field of invention at a certain point in time. For example, if the field of invention is breast implants–is the person of ordinary skill in the art, a general surgeon that occassionally performs breast implants or a certified plastic surgeon with ten years of experience performing breast implants? (These are just two possibilities, but it could be a number of others).
This person of ordinary skill in the art is then kept in mind when reading a claim to see if it meets the enablement and non-obviousness requirements. Graham v. John Deere Co., 383 US 1 (1966) and Ruiz v. A.B. Chance Co., 234 F.3d 654 (Fed. Cir. 2000). It is also relevant for a variety of related inquiries, such as claim interpretation and non-analogous art.
Often, a patent’s value hinges on establishing the right level of skill at the right time for the POOSA.
