SMHLLAW

Negotiation Training

martin — Mon, 22 Jun 2009 22:29:55 +0000

Negotiation skills are skills absolutely required now more than ever as every transaction counts. Every time you want something that others do not offer freely, a negotiation is involve. This class will give you the skills of life to allow you to suceed in your career. Click here for a detailed description.

How Portland, Oregon Measures Up: Innovation Trends Among Cities of the Western United States of America

martin — Mon, 22 Jun 2009 21:04:03 +0000

FOR IMMEDIATE RELEASE:

Contact: Martin F. Medeiros
Swider Medeiros Haver LLP
1420 American Bank Building
621 SW Morrison Street
Portland, Oregon 97205
Voice: 503-226-8122
Fax: 503-295-2737
mmedeiros@smhllaw.com

Swider Medeiros Haver LLP Releases Analysis of Innovation Trends Among Cities of the Western United States of America. General trends can be seen by analyzing and comparing the number of patents issued to inventors or assignees in several Western cities from 2002 through 2008. In almost all cases, there was a decrease in the number of patents issued to both inventors and assignees in 2005, followed by an increase starting in 2006. However, the number of patents is some cities has decreased since 2005, while in others the number of patents has increased.

PORTLAND, Oregon, June 22, 2009. Interesting trends can be seen by comparing high technology cities such as San Francisco and Seattle, or cities with a large amount of recent growth such as Phoenix, with other cities. Those cities generally have a higher number of patents issued to inventors than to assignees. Further, those cities exhibit an increase in the overall number of patents issued per year.

By contrast, cities such as Sacramento, Salt Lake City, or San Jose exhibit a general decrease in the number of patents issued since 2006. It is worth noting that Denver is something of an anomaly, most likely due to the fact that it is a growing city without a large technology sector. Another interesting trend can be seen in the fact that since about 2006 the number of patents issued to assignees has decreased at a greater rate than the number of patents issued to inventors in both San Diego and Los Angeles.

It is interesting to compare the above mentioned cities to Portland. As seen elsewhere, the number of patents issued to both inventors and assignees in Portland decreased in 2005, followed by a sharp spike in 2006. The number of patents issued since 2006 has decreased for both inventors and assignees in Portland, although the rate of decrease has been much sharper for inventors than assignees. This difference is significant and possibly worrisome, as it may indicate that some Portland companies are beginning to keep their headquarters local while sending their inventors into different locales. A complete set of graphs is here on this link.

-END-

###

Trademark “Gold Rush” on Facebook

martin — Fri, 19 Jun 2009 22:35:13 +0000

by Tichelle Sorensen

Social networking sites are an incredibly important marketing vehicle, especially for small companies or those whose model relies upon viral or similar marketing or promotion. Using sites such as Facebook, Myspace, and Twitter has become a key component of most marketing plans. Which makes it even more crucial for companies’ to be aware of changes in the laws relating to these activities, as well as any changes to the policies of those sites.

One prime example is the recent change to Facebook that allows users to claim a unique URL for their Facebook page. Beginning Saturday, June 13^th current Facebook users had the opportunity to register unique URLs. (Those who were not current users as of June 9th, will not be able to register for a new URL until June 28^th.) According to the company, the change allows users to create an easier way for them to share their Facebook page with other users; instead of a group of randomly assigned numbers, registrants can obtain a URL that includes their name or another identifier. While this may be good for companies who are able to register their name or trademark, it can pose problems for those that lost the race and are unable to obtain that URL. It may also increase the likelihood of trademark litigation where two companies have never run into one another in the marketplace if the result is consumer confusion.

Prior to opening the URL registration period, Facebook provided a mechanism by which trademark owners could register their marks with the site in order to prevent a user from obtaining that URL. However, now that the pre-registration period has passed, a trademark owner that didn’t pre-register will need to use the online reporting form for those who believe their intellectual property rights have been infringed by another user. (http://www.facebook.com/copyright.php?noncopyright_notice=1)

This change illustrates a couple of important points. First, you should always be aware of the terms of service or use of any site that you use as well as any changes to those policies that could affect your use of those services. Next, even if the so-called “new media” is not a component of your marketing plan it can still impact your business in unexpected ways. Finally, those trademark owners that rely on state or common law protection may want to reconsider their strategy. The internet will continue to increase the potential for marketplace confusion. In this case, trademark holders were required to include registration numbers in order to qualify for pre-registration protection. Those federal registrations, for those that qualify may be even more important than ever to provide the appropriate evidence to protect your rights.

The Band is a Business

martin — Fri, 19 Jun 2009 22:30:25 +0000

Article 1: The Venue

by Brooklyn Baggett

Law Clerk

    Being in a band is more complicated than just playing music you love. If you want to make money as a band, you must all know that. A band is a business, and band members who treat it as such have greater success, make more money, and keep the band in a healthy and stable state of affairs. This piece is the first in a series of articles discussing the different business aspects that affect the pockets, legal rights, and internal sanity of band members individually and, more importantly, as a band. This first article deals with the relationship between the band and the live performance venue. While people can learn about your band via radio, Myspace, and CD distribution, your band’s live performances can generate a great deal of interest in the music and is the best source of income for the band.

    Having a good business relationship with venue owners and booking agents around town is an important first step. You may see your role as a musician as just that, to make music. The most successful bands are those who attack music and gigs like a job. Get up in the morning and start making calls, posting flyers, rehearsing, talking to important people. Do it until the evening, or at least until you have to go to your “I only do this to make enough money to live while I am pursuing my real passion as a musician” job. Your band is a business and each band member is thus a representative of that business: You approach the venues; bring a demo and some information about your band; be friendly, professional, and responsible. It all comes down to building a repertoire among the venue owners and booking agents locally – let them know you and your band mean business. This can only increase your chances of getting more shows at better venues.

    A very important issue to understand is whether or not you are an employee of the venues where you perform. When a musician is the employee of the venue, that venue maintains some amount of control over the musician, owes certain legal duties to the musician, and must also pay taxes for that musician. A musician as an independent contractor, on the other hand, maintains absolute control over the performance while in another’s establishment and gets treated and paid as such. In 2007, the Oregon Employment Department interpreted an Oregon state law (ORS §657.506) so that musicians were considered employees of the venues in which they performed. The law said that musicians were employed by the venue unless a contract specifically stated otherwise. This added a whole new dimension to the professional approach musicians must take when dealing with venue owners. Although the law was originally geared towards restaurants where employees were not claiming their tips, the result of this interpretation put venue owners on the hook for employment taxes for musicians who may have only played one show at that club. Musicians were approaching venue owners as “boss” for owners had gained more responsibility over the musicians playing in their venues.

    “It’s true that we give money to the musicians at the end of the night. But we only know them for a total for three hours or so. And then they get on their tour bus and head to Albuquerque or Seattle.” Jim Brunberg[1]

    This interpretation of the law led to an uproar for reasons just like that quoted by Jim Brunberg, owner of Mississippi Studios. The uproar was successful though. Thanks to many local musicians, attorneys, and venue owners, the Oregon Legislature has undone that interpretation. On April 28^th, 2009, after passing both the House and the Senate of Congress, House Bill 2540 was signed into law by the governor. This bill eliminates the statutory requirement that a contract with specific language exist for every music engagement in Oregon. Additionally, the band member signing the contract on behalf of the band will no longer automatically be deemed the employer of the rest of the band. Most importantly, musicians are to be considered independent contractors, not employees, of the venues in which they play.

    Although this repeal will be an improvement on the employment side of this issue, it might not hurt to continue to think of the venue owner as “boss.” Although he may not pay taxes for you or be responsible to you if you slip and fall off the stage mid-performance, he is still paying you to play music in his venue. Treat the venue owner with respect and interact with him in a professional manner, and you may get another gig there. Better yet, he may refer you to other venues or tell other venue owners about how great you were. A professional working relationship with any venue owner or booking agent, regardless of the venue, is an important part of treating your band like a business. Treat is as such and the individuals who truly matter to a bands ultimate success – venue owners, booking agents, promoters, marketing agents, and record labels – will respect the band that much more.

[1] Jim Brunberg, quoted in Colin Fogarty, Music Venues Prepare To Fight ‘Employer’ Tax, December 18, 2007, OPB News, available at http://news.opb.org/article/ music-venues-prepare-fight-employer-tax/

Supreme Court Grants Certiorari for In re Bilski

martin — Fri, 19 Jun 2009 22:24:58 +0000

by Michael Moore

The October, 2008, case In re Bilski (”Bilski”) involved a determination of whether claims directed towards a method of hedging risks in commodities trading were patentable subject matter under 35 U.S.C. 101. The Federal Circuit, sitting en banc, decided on October 30, 2008 that those claims were not patentable. (In re Bilski, _____ F.3d _____ (Fed. Cir. 2008) (en banc).)

The pre-Bilski test was enunciated by the Federal Circuit in a case known as State Street Bank & Trust Co. v Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998) (”State Street”). In State Street, the Federal Circuit asked whether the process was “useful, concrete and tangible” to determine whether the process was patentable. After Bilski, however, the “useful, concrete and tangible” test has been replaced by a two part test to determine patentability. First, something may be patentable if it is tied to a particular machine or apparatus. Alternatively, something may be patentable if it transforms a particular article into a different state or thing. It is worth noting that this test is a two part alternative test, in other words only one of those factors has to be true for something to be patentable, not both.

The Courts have given some guidance on the transformation prong of the test. For example, the Federal Circuit referred with approval to a holding in a 1982 case that a claim was patentable because it transformed raw X-ray data of a physical object into a visual depiction. Unfortunately, Courts have given very little guidance on what a “particular machine” is. The Board of Patent Appeals and Interferences (BPAI) has stated that a general purpose computer is not a particular machine, and additional opinions from the BPAI since then have involved Bilski, but there are still no clear patterns or further guidance from the Federal Circuit.

Because of the lack of guidance, several questions arise. For example, if a process changes the physical configuration of a memory chip in a computer (as almost all computer processes do), is that a physical transformation? How tied to a particular method does a computer need to be in order to count as a “particular machine”? More guidance on these topics may be given soon, because the United States Supreme Court granted certiorari to hear the Bilski case on June 1, 2009. The petition for certiorari specifically asked whether the Federal Circuit erred in its holding that:

a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing . . . to be eligible for patenting . . ., despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for
“any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas” [and,] [w]hether the Federal Circuit’s “machine-or-transformation” test . . . contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business” [under] 35 U.S.C. § 273.

Whatever the Supreme Court decides, what is known now is that computer software patent applications and claims should be carefully drafted with Bilski in mind while we wait for more guidance.

Negotiation Strategist Course at Oregon Health and Sciences University

admin — Sun, 01 Feb 2009 00:35:50 +0000

April 14, 2009
8:00 am	to	5:00 pm

Martin Medeiros will be teach at OHSU on April 14, 2009, Click Here for More Information and Registration.

Press Release: Patents Increase in Washington; Decrease in Oregon; Oregon Non-Compete Cases Jump

martin — Fri, 30 Jan 2009 21:04:27 +0000

Swider Medeiros Haver LLP

1420 American Bank Building

621 SW Morrison Street

Portland, Oregon 97205

Voice: 503-226-8122 Contact: Martin F. Medeiros

Fax: 503-295-2737 mmedeiros@smhllaw.com

January 30, 2009 FOR IMMEDIATE RELEASE

PATENTS CREATED AND ISSUED TO WASHINGTONIANS INCREASES WHILE PATENT STATISTICS AGAIN DECLINE IN OREGON

NON-COMPETE LITIGATION INCREASES BY 80% IN OREGON

The number of patents issued to Washingtonians is on a steady increase while patents issued to Oregonians has declined for the second year in a row. Patents issued to Oregonians had steadily increased in years 2001-2004, then declined in 2005 followed by a spike in 2006. “2007 and 2008 represent a decline, and show a general trend line downward in Oregon,” says Martin Medeiros, the partner at law firm Swider Medeiros Haver LLP which has tracked intellectual property metrics in the Pacific Northwest since 2006.

“The decline in Oregon is slightly worrisome, but what is more problematic is that the majority of patents issued in Oregon are assigned to owners out of state. In this respect, Oregon is a brain colony,” Medeiros adds. The Assignment Ratio, developed by Swider Medeiros Haver, shows that only about 35% of patent ownership stays in Oregon, while about 75% stay in Washington.

Trademarks issued to Oregonians and Washingtonians are at a highpoint with approximately 2000 trademarks issued by the USPTO to Oregon and 6500 in Washington in 2008.

The most startling activity, however, is in the area of non-compete agreements. “The largest anomaly is the 80% increase in reported cases dealing with non-compete issues in Oregon; this may be a result of the changes in the law placing more requirements on the enforcement of non-competes” Medeiros opined. A complete set of graphs is available at: www.smhllaw.com on the metrics link. Trade secret litigation is also tracked.

###

New Regulatory Standards are Causing Concern Among Businesses in the Children’s Consumer Goods Market.

martin — Fri, 30 Jan 2009 20:45:53 +0000

Forbes calls it “Retail’s Dagger in the Heart.” CNN has proclaimed the “New Law Could Wipe Out Handcrafted Toy Makers.” And the American Bar Association Journal says the “New Law to Make Child Products Safe is Dangerous to Retailers.” Although the Consumer Product Safety Improvement Act of 2008 (“CPISA”) was signed into law by President Bush on August 14, 2008, as the early compliance deadlines loom, businesses in the children’s product sector are becoming increasingly concerned. One of the stated purposes of the CPSIA is to “modernize” the Consumer Product Safety Commission. However, even in this, the age of information, the law has been criticized as confusing, and the CPSC so far has not quieted the critics.

Small manufacturers, craftspeople and resale shops are expected to be hit the hardest by the new regulations, with the former claiming the required testing costs are prohibitive and latter placed in a difficult predicament. The CPSC guidance is illustrative: these stores are not required to test products they sell for lead, but the law prohibits selling products containing unlawful levels of lead, so resellers are urged to “avoid products that are likely to have lead content.”

The CPSIA provides for severe civil penalties as well as criminal penalties for certain violations, so compliance is mandated. Regulatory compliance in the area of children’s products has always been a concern, and the new law underscores the necessity for manufacturers, importers and private labelers to ensure they are in compliance with all applicable laws and regulations. If your business is selling products aimed at children, it is advisable to seek counsel to determine your obligations under these laws.

2008 Pacific Northwest Intellectual Property Metrics

martin — Thu, 29 Jan 2009 18:49:42 +0000

For a complete set of graphs, click here.

Sue or Settle: Using Game Theory for Decision Support

martin — Wed, 28 Jan 2009 21:32:42 +0000

Vanessa Yazicigil*

Sue or settle? Uncertainty can make such decisions daunting, but “game theory” can aid by quantifying the risk and return. Game theory mathematically models strategic situations such as decisions to settle law suits and labor union negotiations. Using assumptions and approximations, game theory attempts to predict the behavior of two or more negotiators, making it a valuable tool that can influence negotiations and enable informed decision making. Certain researchers teach this method.

Imagine that your neighbor trespassed onto your property and cut down a tree. You want your neighbor to pay for the damage – should you sue or settle? If you sue and win, you could potentially collect $20,000. If you lose, you collect $0. Settlement provides a middle ground: less risk but less reward. Common sense tells us that there is an optimum settlement, and game theory provides an analytical method to find the settlement sweet spot.

If you sue, you will have to prove elements to win; for example, that the neighbor trespassed, and that you suffered damages. After legal analysis, let’s say you predict that there is a 70% chance of proving the trespass, and an 80% chance of proving the damages. To determine the chance of winning, multiply the probabilities of every element: 0.7 x 0.8 = 0.56 = 56% chance of winning. Now, to determine the probable payoff of litigation, multiply the chance of winning by the potential damages: 0.56 x $20,000 = $11,200.

Knowing the probable payoff of litigation enables you to better assess the value of settlement offers. If your expenses for pursuing the negotiation are, for example, $4,200, then a settlement in the range of $4,200 – $11,200 is a success. This example is approximately based on a case that was litigated and settled out of court for $10,000 plus related costs.

The decision to litigate is only one of game theory’s countless applications. Game theory is a powerful means of analysis that you are likely to find in every negotiator’s toolbox.

*Ms. Yazigil left her post as an electrical engineer for Intel to study law at Lewis and Clark College of Law.