The Content Hoarder

You must have a plan that will dispose of your property and also address problems your family will face if you become incapacitated something that can happen at any time. You need a living will, a health-care proxy and a durable power-of-attorney

Let’s discuss advance directives often called health-care proxies and living wills

Not very long ago there was no such protection, and your family would be left to do as they wished, allowing an already emotional event to be further complicated by being forced to make these decisions.

The Supreme Court’s 1990 Cruzan decision concerning the 1983 car accident that left Nancy Cruzan in a vegetative state. Her family wanted her to be disconnected from all life support. Since there was no indication of what Nancy Cruzan wanted The U.S. Supreme Court upheld Missouri’s decision.

You need a living will that will clearly state what medical treatments you want and what life-sustaining measures are acceptable to you.

A Health-care proxy gives the person of your choice the right to make health-care decisions when you’re incapacitated. Different then a living will, It does not go into details. it just gives the authority to a person of your choice, who will follow out your wishes.

Having both a living will and a health-care proxy protects you as a living will is a backup to a health-care proxy as a living wills is recognized by case law in most states. So if you are on vacation or on business in another state you will be covered.

You want the protection a living will allows you in case the person you have chosen is challenged. Having a living will is clear and undisputed evidence of what you wanted.

On the other side of the coin a health-care proxy is a backup to the living will. A case in which a hospital refused a husband’s request to terminate his wife’s life support, despite the instructions in her living will. The hospital’s lawyers argued that it was not clear she wished to be taken off life support. She lived many more months at a cost of $250,000, and the hospital is now suing him for payment.

These documents can be updated as medicine advances progress and your wishes are rethought.

That’s what’s great about a health-care proxy you don’t have to foresee every possible scenario once you have a person in place you trust.

Jeffrey Broobin is a free-lance writer on family and finance issues; his main goal is to help people during their complicated period of life.
Website: http://www.legalhelpmate.com Email: jeffreyb@legalhelpmate.com

In this article we’re going to discuss the tricky aspect of marketing strategy when applying for a patent.

Getting a patent is a tricky process under normal circumstances. Under laws of the United States a company or person is entitled to a patent unless the invention was on sale in the country for more than one year prior to the application date of the patent. This applies to both sales and offers of sales. Therefore, companies conducting marketing campaigns must be careful not to destroy their patent rights. In a perfect world, application for a patent should be filed before any sales begin. But then that would hurt the company’s bottom line because that ultimately puts profits on hold. In a competitive marketplace this could spell disaster for the company.

Therefore, it is important for a company to understand just what it is that starts the one year clock ticking. In other words what can they do and what can’t they do in order to avoid their product being put on the timer?

In order to answer that question we have to understand what exactly, according to law, starts the clock running. There are basically two conditions. The first one is that the invention must be ready for patenting at the time of the sale. If it can be shown that the inventor had sufficient drawings that would enable another person to use the invention then this would satisfy the first criteria.

The second criteria is that there has actually been an offer for sale. In other words, the inventor or company that owns the invention approaches another company and offers to sell them the invention. This can either be in the form of a letter to the other company or in an actual physical meeting between the two companies. Usually the meeting follows a letter.

In the form of a letter the owner of the invention will usually draw up a letter stating that they have such and such an invention and go on to say that they feel this is something that would enhance their business. In the letter they would describe what the invention does and how it would help them. They would then ask the other company to get back to them if interested.

When it comes to the meeting the inventor will bring drawings of his invention and present them to the company interested in acquiring the invention. Maybe the inventor even has a working prototype he can show them. This is always a plus. Companies actually like to see that the invention they are interested in works.

Where the law comes in, and this is where inventors can delay the clock, is that the following items do not fall within the two criteria. Solicitation of customer pricing information from distributors and sales representatives; publication of preliminary data sheets and promotional information on invention features; communications to sales representatives; sales representatives providing customers with preliminary data sheets; and sales representatives’ requests for customer samples.

Therefore, an inventor can engage in any of the above activities and NOT start the one year clock running. This allows the inventor to get as much preliminary leg work done for his patent without actually “technically” starting the process.

This is important information for any inventor to have if he is trying to gain as much ground in his quest for a patent as possible.

In Newman Ltd v Adlem (2005), the Court of Appeal held that there was a duty on the seller of a business not to undermine the goodwill attached to that business (if included in the sale) even after the non-competition covenants in the sale agreement had expired. Goodwill is an intangible asset valued according to the advantage or reputation a business has acquired.

The defendant took over a funeral director’s business in 1965. He also offered his services as an agricultural contractor and as a provider of memorial headstones and plaques. By 1993 he was trading under his own name, ‘Richard T Adlem,’ and had built up a business, which was well respected. He decided to sell the undertaker’s business in 1993, but to retain his farming and headstone businesses. He entered into a contract, which contained a restrictive covenant, with B, who bought the funeral business and its goodwill. In this case, the restrictive covenant was an obligation preventing the defendant from competing with B for a specified period.

After the completion of the sale of the funeral business, the business belonged to B, not the defendant. However B frequently used the defendant’s services and paid him for these services. Throughout that period, the defendant knew that B was using the name ‘Richard T Adlem’ for the funeral business.

In 2000, B sold the funeral business to the claimant. By that agreement, the claimant bought the goodwill of the business including the right to carry on business in succession to B and to use the business name. The defendant made no objection, and actually assisted the claimant with about 40 funerals undertaken by the claimant under the ‘Richard T Adlem’.

In March 2001, the defendant re-commenced his own business under the name ‘Richard T Adlem’, and started advertising under that name. He also started to object to the claimant using the name. In April 2002, the defendant registered the name ‘Richard T Adlem Funeral Director’ as a trade mark.

The claimant commenced proceedings alleging that:

the defendant was passing off his business as an undertaker;

the defendant’s assertion of an entitlement to use the name amounted to a derogation from that which had granted to B in 1993;
the trade mark registration was invalid pursuant to s 47(2)(b) of the Trade Marks Act 1994 and that in any event it was unenforceable against them by virtue of s 11(3).

The Court held that:

once the defendant had assigned the goodwill in the funeral business, it was not open to him to start, after the expiry of the restrictive covenant, a fresh business under exactly the same name;
having sold the goodwill, Mr Adlem was under a duty not to undermine it;
the claim in passing off succeeded; and
the registration was invalid pursuant to s 47(2)(b) of the Act.

If you require further information contact us.

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© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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Patent Cooperation Treaty (PCT) is a sister Treaty of the Paris Convention administered by the World Intellectual Property Organization (WIPO). The PCT facilitates filing of patent applications under a single umbrella and provides for simplified procedure for the search and examination of such applications. There are now over 125 signatory countries to PCT. The PCT system is a very popular method of filing patent applications throughout the world.

Filing a PCT Application

The PCT applications may be filed either in an approved Receiving Office or directly at the International Bureau at the WIPO in Geneva. The PCT applications usually claim priority from an ordinary patent application, but they may also be filed direct.

On filing a PCT application, applicants must designate the countries in which they wish to retain the option to file a patent application. There is a fee per country designated up to the first 5 and after that any number of further countries may be designated without fee. It is also possible to designate multi-country regional offices such as the ARIPO or EP (European Patent Organisation).

International Phase and National Phase

PCT has two phases, an international phase when they are international applications in the International Bureau, and a national phase when they are converted to national patent applications in the designated countries of interest.

During the international phase, the designated International Searching Authority (a Patent Office authorised by WIPO) conducts a patent search and an International Search Report is provided within around six months of filing to assist the applicant in deciding whether or not to proceed with patent protection. The International Bureau also publishes the patent specification.

Chapters I and II of the PCT

The PCT is divided into two Chapters, Chapter I and Chapter II. Chapter I requires that within either 20 or 30 months of the earliest priority date, (depending on whether or not the country concerned has adopted the most recent amendments to the PCT Treaty), the applicant must enter the national phase, that is, file patent applications in any one or more of the countries initially designated .

Chapter II allows 30 months from the earliest priority date for entering the national phase and also requires a designated International Preliminary Examining Authority (authorised by WIPO to conduct international examinations) to conduct a non-binding substantive examination of the patent specification to determine whether it meets the requirements for patentability. Please note that, certain designated Offices have fixed time limits expiring even later than 30 months, or 20 months, as the case may be. For regular updates on these applicable time limits, refer to the PCT Gazette; a cumulative table is also available at WIPO’s Internet site (www.wipo.int ).

Entry into the National Phase

The national phase is the second of the two main phases of the PCT procedure. The national phase starts only if the applicant files applications in each country of choice (the “designated Office”) just as a usual application would be filed, either before the expiration of the time limit or together with an express request that it start earlier. The applicant has sole responsibility for performing the act in due time. The consequences of failure to do so are fatal to the application in most designated States. In each such designated State the international application has the effect of a national (or regional in the case of regional offices) application as from the international filing date, and the decision to grant

Advantages of the PCT System

The PCT system allows applicants to file a single patent application in one country and for up to 30/31 months retain the option of filing a corresponding application in a large number of other countries of interest. The PCT system can therefore be thought of as an extension of time for filing patent applications world wide at substantially reduced prosecution costs. Furthermore, one can usually tell from the International Search Report and Written Opinion, what the chances are of obtaining patent protection in the other countries. If there appears to be no prospect of obtaining a patent, the international application can be abandoned whereby the applicants lose only the cost of filing a PCT application instead of a much greater cost of filing applications in every other countries of interest. Also, the applicants get 18 months more to test the market to determine whether to proceed with patent applications and indeed to raise capital to fund the filing of regional/national phase applications.

PCT National Phase Entry in India

On September 7, 1998 India (country code: IN) deposited its instruments of accession to the Paris Convention for the Protection of Industrial Property and to the Patent Cooperation Treaty. Since December 7, 1998, it has been possible to designate India in PCT applications and to elect India in the demand for preliminary examination.

If India is a designated country in the PCT application and is also elected in the demand for preliminary examination filed within 19 months of the priority date, then the deadline for entry into the National Phase in India is 31 months from the Priority Date. If the applicant does not so elect India in the demand for preliminary examination, then the deadline for entry into the National Phase in India is 21 months from the Priority Date. Therefore, all applicants who have designated India in their PCT application filed on or after December 7, 1998, will be able to file PCT National Phase applications in India.

P.M.George Kutty, Advocate & Registered Patent Attorney, India of http://www.pmgip.com

Every time you want to avail legal assistance, your finances are also one of your biggest considerations. I’m speaking here in terms of legal billing rates. These rates really vary based on the experience, prominence and prerogative of the lawyers. Lawyer fees differ. Now, the big question is - Are these fees reasonable for clients like you? Is it just enough for the lawyers?

An article entitled “Guide to Legal Services Billing Rates” says that most lawyers will tell you that the practice of law is a noble profession dedicated to the pursuit of truth and justice. But anyone looking to hire a lawyer must realize that practicing law is first of all a business. As a result, lawyers in private practice are going to charge what the market will bear in order to make a profit from their services. Understanding this and having a basic knowledge as to how lawyers’ charge for their services may help you to negotiate the best deal when you need to hire one.

I must say that all of the payment arrangements stated in the said article are not more than enough. I think, they are just enough to compensate for the time and effort a lawyer will spend in your case. These arrangements include hourly rates, flat fees, retainers and contingent fees. The lawyer has the opportunity to choose the payment plan that you’ll have. However, the client can still open up his views if he disagrees with the lawyers’ offer. It’s still up to them to decide about the final payment arrangements.

In addition, there are certain factors impacting lawyers’ fees such as advice, outcome, overhead, experience, time and effort, difficulty of case, prominence of lawyer, geographical location, and preferred client discount. All of these affect the choice that a lawyer makes regarding the payment arrangement that the client has to comply with.

Indeed, it’s important to understand how these fees are being treated under the different payment arrangements. The decision if what type of payment best suits your paying capabilities still depends on a good communication between you and your lawyer. It may be hard to compensate for this high-paying job but then it will be your reputation that’s at stake here.

Generally, it’s always better to fairly settle everything first - especially in terms of legal billing rates - before commencing any legal proceedings. Through this, you’ll certainly have a smooth-sailing relationship with your attorney towards the success of your case.

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