◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for March, 2009
The IL and Federal WARN Acts-What are they and what do they require?
In today’s economy, Employers are often downsizing, relocating or transferring employees. This often requires employers to follow the procedures outlined in the Federal and IL WARN acts. Failure to follow the procedures in the Federal and IL WARN acts can result in a violation of the employee’s rights and imposition of significant penalties upon the employer.
Generally, the Federal and IL WARN Acts are analogous statutes that may require employers to give notice to their employees of mass layoffs or transfers. However, there are some significant differences between the IL and Federal WARN acts. The following is a list of some of the major differences between the two Acts:
1) the IL WARN Act applies to employers with 75 employees or more, while the Federal WARN act applies to employers with a 100 plus employees;
2) The IL WARN act applies, when a regulated employer fires 25 employees, 1/3 of its full time work force, or 250 employees. The Federal WARN act applies, when a regulated employer fires 50 employees, 1/3 of its full time work force, or 500 employees;
3) The Illinois WARN Act requires notice in the event of a “relocation”, but does not define “relocation”;
4) The Illinois WARN Act requires notice to government officials under the Business Economic Support Act (BESA), if the employer receives state or local funds; and
5) The Illinois WARN Act allows the IDOL to promulgate rules and to examine books to enforce the Act.
See Publication on: Brief Summary of IL WARN Act illinois-warn-act-summary
The WARN Acts are a hot issue in the current economic climate. Ensuring compliance and figuring out your rights under the WARN Acts may be crucial to employees, employers, lenders, borrowers, and potential purchasers of a company.
Trademarks, Servicemarks and the Costs of Delay
In a recent opinion, Judge Shadur gave new life to the “laches” defense to trademark and servicemark infringement. Judge Shadur granted summary judgment to the City of Chicago and dismissed Rudolfo Garcia’s claim for servicemark infringement of the name “Graffiti Blasters.” See. Rudolfo v. City of Chicago, 2009 U.S. Dist. Lexis 7437 (N.D. Ill.).
Judge Shadur focused on the following facts: 1) Rudolfo was aware of the City of Chicago’s use of “Graffiti Blasters” for fourteen (14) years before filing suit; 2) Rudolfo waited ten (10) years after his lawyer sent a Cease & Desist letter to the City of Chicago; 3) the City of Chicago immediately responded with a letter disputing Rudolfo’s rights to “Graffiti Blasters”; 4) the City of Chicago cleaned over 200,000 buildings and expanded the program by investing millions into it after Rudolfo’s delay; and 5) Rudolfo’s delay was approximately five times the three year statute of limitations for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act.
Judge Shadur held that considering these facts and circumstances Rudolfo had slept on his rights and unreasonably delayed in brining suit against the City of Chicago. This ruling reaffirms the need for trademark and servicemark owners to police infringing uses of their mark and timely file claims to ensure the strength and validity of their mark.
Attached is the case for your consideration: name_rudolfo_garcia_and_city
Stem Cell Research and Government Funding
Recently, President Obama signed new legislation that will mean that government funds may be used for private stem cell research efforts. Bio-tech researchers, patent law practitioners and bio-ethicists fall on different sides of the myriad of issues involving stem cell research.
Stem cells are thought to hold potential cures for many of humankind’s ailments. However, the use of stem cells for research raises many concerns such as selling embryos and killing potential human beings. Without commenting on any of these issues, here is what the new legislation requires to enable use of government funds for private research efforts.
The Act requires the following to use stem cells in research: 1) the stem cells must be obtained from in vitro clinics and have to be in excess of the stems cells need for in vitro; 2) after consultation with the individual seeking fertility treatment it was determined that the stem cells would not be implanted and would otherwise be discarded; and 3) the individual donating the stem cells must have provided written informed consent to use the excess stems cells in research without receiving financial inducements.
The National Institute of Heath (NIH) is supposed to enact guidelines to carry out the Act and the Secretary of Health and Human Services is supposed to prepare annual reports describing the activities carried out under this Act.
Privacy and Employer Monitoring
With the use of email, chat rooms, cell phones, facebook, twitter, laptops, and many other communication means the line between an employee’s right of privacy and an employer’s ability or duty to monitor its employees becomes blurred. A new form of sexual harassment is becoming prevalent with the use of text or instant messages being sent by one employee to another. It is difficult for employers to know how to navigate these gray areas.
In fact, the law is in a state of flux on these issues, but The Federal Wire Tap Act, Illinois law and an individual’s right of privacy protect most forms of communications from being accessed and intercepted. However, if the employee is using an employer provided device or service, then the employer may be permitted to access and intercept the message pursuant to a clearly developed policy.
If the employer has developed and disseminated a clear privacy and monitoring policy to its employees with a legitimate basis for monitoring, then the employer’s actions will often be protected. Typically, the following types of interests are considered legitimate for monitoring an employee’s communications: 1) investigating a complaint regarding harassment, discrimination or similar issues; 2) preventing or protecting against theft of company property, including intellectual property; 3) time or recordkeeping fraud; 4) and a variety of similar interests.
However, quite often courts make a case-by-case determination and a policy of monitoring any and all communications even during non-work hours can lead to employer liability for invasion of an employee’s privacy. Also, the employer’s liability will increase if the information collected is disseminated to third parties without proper authorization.
Design Patents: Rejection of Point of Novelty Test and Adoption of a Uniform Hypothetical Ordinary Observer Test!
The Federal Circuit made an important ruling in Egyptian Goddess Inc. v. ADI Torkiya, for determining infringement in design patent cases. The Court rejected and abolished the Point of Novelty Test as a second or additional test for determining whether an accused device infringes the claimed design.
The Court stated that the test is the same as the Supreme Court’s formulation in Gorham: whether or not a hypothetical ordinary observer would find or be deceived into believing that the accused device is the same or substantially the same as the Patentee’s claimed design, in light of, the prior art within the Patentee’s field? Id. This test accounts for greater protection in areas where the Patentee’s field is less crowded and less protection in areas where the Patentee’s field is more crowded.
The Court went on to state that the Patentee retains the burden of proof with respect to demonstrating substantial similarity for design patent infringement. However, the Accused Infringer bears the burden of production for providing prior art references that it wants to be considered by the trier of fact. Id.
This is an important ruling clarifying the often confusing area of design patent infringement and proper application of the Ordinary Observer Test should lead to better results for both Patentees and Accused Infringers.
Attached is a copy of the decision for your consideration: egyptian-goddess
