The attorneys at Watson Rounds have had multiple intellectual property cases in the California area dealing with the entertainment industry. Intellectual property rights in entertainment have been neglected in the examples of pirated movies, illegal downloading of music, and rouge websites. Because of this, entertainment trade groups, such as the Motion Picture Association of America have backed the government’s enforcement strategy and are pleased to see it enforced.

The entertainment industry is not the only business that has seen an influx of intellectual property cases. Software and pharmaceutical markets are also feeling the burn of online piracy, counterfeit goods and misuse of the Internet.

The 61-page report includes over 30 recommendations, including an interagency committee specifically dedicated to restricting fake drugs and medical products along with curbing intellectual property infringement.    

The country of focus for the Intellectual Property Enforcement Office, coordinated by Victoria Espinel, on international counterfeit and intellectual property infringement will be China. Last year’s U.S. Customs and Border Protection report said 79% of seized counterfeit goods came from China. 

Bob Pisano, President and Interim CEO of the Motion Picture Association of America, Inc., said”This plan is an important step forward in combating intellectual property theft and protecting the millions of jobs and businesses that rely so heavily on copyrights, patents and trademarks and help drive the American economy.”

Apple is alleging that Kodak infringed upon two of its patents; a computer vision system for subject characterization, and modular digital image processing via an image processing chain with modifiable parameter controls. Basically, the two patents surround Kodak’s use of technology for the creation of digital still and video cameras.

The patent infringement suit from Apple came in mid-April, about 3 months after Kodak’s original patent infringement suit against Apple. Apple is asking that the products under scrutiny of patent infringement be banned from importation to the U.S. The ITC is looking into Apple’s claim and will decide if the products indeed should be blocked. However, a blocks could go against Apple since the ITC is also investigating the claim that Apple’s iPhone is using preview image technology patented by Kodak.

This is Apple’s most recent in a long line of patent infringement accusations. Just last week HTC, a Taiwanese company, filed a suit with the ITC seeks to immediately stop the importation of not just the iPhone, but also the iPad and iPod to be ceased immediately on the grounds of 5 patent infringement violations.

As a previous blog stated, multiple companies have filed patent infringement lawsuits against Apple in a relatively short amount of time. Most suits are still being discussed and it is unclear as to the effect on the American technology community the block of these products would have.

Watson Rounds is one of the sponsors for the NCET Entrepreneur Expo this year.  The firm was a sponsor last year and is looking forward to another great event this year.  Stop by our booth during the September 17, 2010 event located at the Atlantis Casino Resort Spa.  Watson Rounds is the perfect choice for all those entrepreneurs out there who need assistance with corporate formation, contract preparation, including key employee contracts, vendor relationships, mergers and acquisitions; asset protection strategies to protect and shelter the resources that help your business succeed; regulation compliance, dispute resolution, litigation, copyright and trademark services and litigation.

Non-obviousness is the term used in patent law that describes one of the requirements that an invention must meet to qualify for patentability. The obviousness law states that the invention being patented cannot be obvious; that is to say, it would not be obvious to a person having ordinary skill in the art (PHOSITA) to come up with the patented item. The standard for obviousness in patent law was recently discussed in the 2007 Supreme Court opinion of KSR vs. Teleflex.

The KSR Teleflex case was considered the furthest-reaching patent ruling in decades. Teleflex sued KSR International, claiming that one of KSR’s products infringed upon one of Teleflex’s patents. KSR said the combination of two elements used in Teleflex’s patents as obvious, which made the method and product non-patentable. The District Court ruled in favor of KSR, but the Court of Appeals for the Federal Circuit reversed the ruling. The case went all the way to the Supreme Court, which decided against the Federal Circuits ruling and held that the patent was in fact obvious.

The primary factors that convinced the Supreme Court to invalidate the patent had to do with PHOSTA and the application of the “teaching-suggestion-motivation” (TSM) test, as well as the Graham Factors.

The Graham Factors, shown below, are items looked at when a patent is being reviewed as to the obviousness of the patent.

• The scope and content of the prior art.
• The level of ordinary skill in the art.
• The differences between the claimed invention and the prior art.
• Objective evidence of non-obviousness.

In addition, the court outlined examples of factors that show “objective evidence of non-obviousness”. They are:

• Commercial success.
• Long-felt but unsolved needs.
• Failure of others.

The TSM test has been openly criticized but was formed originally to prevent hindsight bias. It requires a patent examiner (or accused infringer) to show there was something in the art that left a wide desirability for a solution to a problem to make the patent obvious. 

 The implications of this ruling are many and of great importance.  Here are some of them:

• This ruling made it easier for patents to be invalidated based on non-obviousness.
• The USPTO Board of Patent Appeals and Interferences (BPAI) is citing KSR in about 60% of its decisions related to obviousness.
• The cost and uncertainty of patent litigation was lowered.
• Makes it harder for software and other patent seekers to obtain a patent.

A financial contract needs to be accepted by both lawyer and client. The reason behind the lawyer’s preference of hourly-rate agreements stems from variables in litigation and transactions that are unforeseen at the start of a project. Clients, on the other hand, prefer an alternative fee agreement as a way to provide a more definite amount they will be paying.

A client must first understand the circumstances in which each alternative fee agreement will work, as well as a full understanding of the contract itself. The following is a list of alternative fee agreements one might use as a substitute to the typical hourly-based attorney fees.

1. Fixed or Flat Fees
   1. What it is- A set price can be made when a client engages a law firm for a specific service. This contract gives lawyers the incentive to work at a faster pace because there is no correlation between time and money. It allows the client to budget accordingly and not surprise the client monetarily.    
   2. When to use it- This contract can be used when a client does not have all the money needed for an initial payment. Fixed fees can be made to be paid periodically throughout the settlement. High volume, routine and commodity work are good instances to use this alternative fee agreement because they generally have costs that are easy to predict.
   3. Advantages/Disadvantages- Everything covered in the fixed fee needs to be extremely detail oriented so both the client and firm know what is specifically covered. Unforeseen circumstances can be a cause of tension between client and firm if extra costs not covered in the initial payment amount occur.
2. Contingency Fees
   1. What it is- This agreement fully favors the client; the law firm is paid strictly on the results that are received. This agreement is usually paid as a percentage of the recovery, settlement, or amount saved. 
   2. When to use it- A law firm will suggest this alternative fee agreement when they are highly confident in their ability to obtain positive results for the client. This contract is commonly used along with fixed or flat fee agreements as well. 
   3. Advantages/Disadvantages- This allows the client to only pay for results, not time. This contract is a quality investment for economically challenged individuals. On the firms’ side, this is a risky contract because the firm assumes all the risk.
3. Blended Rates
   1. What it is- In this alternative fee agreement, all time is equally billed regardless of who does what specific work. It allows clients to utilize the most experienced attorneys at a firm because the hourly rate is set for all the attorneys in the firm regardless of experience. A staffing agreement is prudent for this, so the client can assign who is best suited for each position in a case. The client cannot assign all top level attorneys; they can, however, receive the bargained-for level of expertise for certain aspects of the case. 
   2. When to use it- Performance bonuses or rewards based on achieving shared objectives is when this agreement is used most often and most effectively.
   3. Advantages/Disadvantages- These agreements are very easy to negotiate and administer. This is based on an hourly scale though, so there is little incentive for the lawyers to work extremely efficiently, especially when less experienced lawyers get delegated work.
4. Capped Fees
   1. What it is- This alternative fee agreement constricts the payments of a client to a fixed amount, and does not allow payments to continue after that set amount. The law firm will not do work that exceeds the cost of the set upon price.
   2. When to use it- High volume, routine and commodity work are areas a law firm would offer this alternative fee agreement. This contract is also used when clients are comfortable assuming the risk of a bad outcome this contract.
   3. Advantages/Disadvantages- This can hurt a law firm if they misjudge a cost, but it rewards the firm if they have fixed a fee that leverages their efficiencies and expertise.

These types of fee agreements work well for different people for difference cases, so make sure you discuss the best options. The hourly-based fee agreement is not going to disappear, but sometimes law firms will substitute it for another fee agreement.

 Medical malpractice covers suits involving the following:

• Failure to diagnose
• Misdiagnosis
• Failure to provide appropriate treatment
• Not allowing informed consent from the patient and as a result medical problems occurred
• Giving an unreasonable delay in treating a medical condition 

      The intricate specifications of medical malpractice laws vary in different states. There are overall regulations of malpractice that are nationally accepted but medical malpractice lawyers need to know the laws of the state as well as federal laws. If you are the victim of a medical malpractice suit and are seeking the help of a medical malpractice lawyer, Watson Rounds can help. However, the laws and process of a medical malpractice suit can be long and difficult to understand.

     Since most of Watson Rounds’ work is done in the Nevada and California areas, it was found prudent to show some of the differences in medical malpractice laws in these two states.

 Nevada Medical Malpractice Laws

• Nevada imposes a $350,000 limit on noneconomic damages.
• Nevada has abolished the rule denying a defendant the right to seek a reduced liability by introducing compensation from other sources (i.e. personal insurance). This means that in Nevada the liability and awards are offset by a collateral source.
• There are no special restrictions for expert witnesses. However, when the plaintiff is using a medical expert witness with an expertise close to that of the defendant, an affidavit must be filed.
• Nevada has abolished the traditional joint and several liability rules; instead saying each defendant is responsible only for the damages in proportion to the defendant’s degree of fault for causing the plaintiff injury.

 California Medical Malpractice Laws

• California imposes a $250,000 limit on noneconomic damages.
• In regards to the collateral source rule traditionally enforced, California allows a discretionally offset for payment by collateral sources like a personal insurance company. They also allow the evidence of this payment to be brought forth in trial.
• Expert witnesses must have education and training pertaining to the type of medical malpractice being discussed in the case.
• Under California law, cases involving noneconomic damages like “pain and suffering” are determined by the amount of any such damage they are proportionally responsible for causing.

     For any questions pertaining to specific instances of medical malpractice, the medical malpractice lawyers at Watson Rounds are available to answer any questions at 775-324-4100 (Reno), 702-636-4902 (Las Vegas) or 415-243-0226 (San Francisco).