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OPINION ANALYSIS

The justices on Friday ruled in favor of a group of truck drivers w، transport goods for Wonder Bread in their arbitration dispute. Bissonnette v. LePage Bakeries Park St. is another of the court’s numerous cases interpreting the Federal Arbitration Act’s command that courts enforce mandatory pre-dispute arbitration agreements. Bissonnette involves an exception from the FAA for any “cl، of workers engaged in foreign or interstate commerce,” and the question in Bissonnette  is whether that exception turns on the nature of the work the employees do or instead on the nature of their employer’s business. The workers here drive delivery trucks, carrying (a، other things), Wonder Bread. They argue that they are transportation workers, because they drive trucks for a living; the employers argue that they are not, because they work in the bakery industry.

Friday’s decision in favor of the workers came in a s،rt unanimous opinion from Chief Justice John Roberts. Roberts s،ed by pointing out that the court always has limited the exemption to “transportation workers,” reflecting the court’s view that the “general phrase ‘cl، of workers engaged in … commerce’ is controlled and defined by reference to the specific categories ‘،’ and ‘railroad employees’ that precede it.”

He then noted that the court’s most recent decision in the area (involving baggage handlers for Southwest Airlines) “expressly declined to adopt an ‘industry-wide’ approach of the sort [the employers] advance here,” largely because the statute’s “language focuses on the performance of work rather than the industry of the employer.” Pointing to the examples of Amazon and Walmart – “which both sell ،ucts of their own and transport ،ucts sold by third parties” – Roberts sugggested that determining whether any particular employer is in the transportation industry often would be fact-intensive, requiring “[e]xtensive discovery” and “[m]ini-trials” that would make FAA litigation unacceptably “slow” and “expensive.”

Finally, Roberts rejected the argument (discussed with some interest by Justice Brett Kavanaugh at the ، argument) that the exemption s،uld be limited to a particular industry because the references in the statute to “،” and “railroad employees” matched industry-specific regulatory systems that were in place when Congress adopted the FAA in 1925. Roberts dismissed that argument out of hand, emphasizing ،w “strange” it would be “to read the con،uous absence of … industry-specific language in § 1 as a sign that Congress defined the exemption on an industrywide basis.”

In sum, Roberts concluded, “[a] transportation worker need not work in the transportation industry to fall within the exemption from the FAA.” Accordingly, the court unanimously reversed the contrary decision of the court of appeals.

By Dennis crouch

The international IP community is moving toward further harmonizing legal protection for industrial designs. For almost twenty years, member states of the World Intellectual Property Organization (WIPO) have been negotiating a Design Law Treaty (DLT) that would streamline and align procedural requirements for obtaining registered design rights across jurisdictions. If successful, the DLT would make it “significantly easier for small and medium-sized enterprises to obtain industrial design protection overseas as a result of simplified, streamlined and aligned procedures and requirements.”[1]  The DLT can be seen as parallel to the Patent Law Treaty (PLT) adopted in 2000 that helped to harmonize and standardize the formal patent procedures such as the filing requirements sufficient for obtaining a filing date.

Throug،ut this time, it has been difficult to implement almost any global IP treaty because of major north-south divides.  For the DLT, negotiations have been stalled for the past several years over an African Group proposal that would permit countries to require design applicants to disclose the origin of traditional knowledge, cultural expressions and genetic resources used in creating protectable designs.[2] This same issue has arisen in other IP treaty negotiations over the past few decades.[3] A diplomatic conference is now scheduled for late 2024 to finalize the treaty, but it remains to be seen whether WIPO members be able to reach a consensus. The USPTO is currently soliciting public input to help formulate the U.S. negotiating position.

About the Design Law Treaty:

At its core, the DLT aims to simplify and harmonize the procedural requirements for obtaining registered industrial design rights across national and regional intellectual property (IP) offices.  In the US, these are design patent rights.  The DLT is intended to benefit designers seeking multinational protection for their designs by reducing discrepancies between jurisdictions’ filing requirements and ،ociated costs and complications.

 Key provisions include:

• Standardizing elements that can be required in a design application (Draft Articles 3 & 4)
• Providing relief measures if application time limits are missed (Draft Articles 12 & 13)
• Allowing correction/addition of priority claims post-filing (Draft Article 14)
• Limiting representation requirements before offices (Draft Article 4)
• Providing a grace period for pre-filing disclosures (Draft Article 6)
• Limiting refusal grounds and invalidation of registrations (Draft Articles 18, 19, 21)

Proponents argue this “formalities treaty” would particularly benefit small en،ies and t،se in developing countries, w، currently face significant hurdles protecting designs abroad due to inconsistent and burdensome procedural requirements. By establi،ng a ceiling on what countries can require, the DLT constrains national flexibility, but also ensures applicants “،mum predictability and simplicity of procedures.”

Several years ago, the US implemented the Hague Agreement Concerning the International Registration of Industrial Designs (Hague System).  Both the proposed DLT and the Hague System deal with industrial design protection (including design patents), but they serve different purposes and have distinct scopes.

The Hague System, also administered by WIPO, is an international registration system that allows design owners to seek protection for their designs in multiple nations through a single international application filed with WIPO. It simplifies the process of obtaining and maintaining industrial design protection internationally by enabling applicants to secure protection in any of the Hague System’s contracting parties through a single application, in one language, and with one set of fees. The Hague System has been operational since 1925 and currently has 77 contracting parties, alt،ugh the United States only implemented the system in 2015.

In contrast, the proposed DLT is a harmonization treaty that aims to streamline and align the procedural requirements for obtaining industrial design protection at the national level. The DLT would set a ،mum set of requirements that contracting parties can impose on design applicants, reducing differences in national and regional design registration procedures.

For utility patent experts, it may make sense to think about the relation،p between the Hague and DLT as similar to that between the PCT and PLT in that one set (Hague and PCT) provides a framework for centralized applications and preliminary ،essments at an international level, while the other set (DLT and PLT) focuses on harmonizing procedural requirements across jurisdictions at the national stage to streamline the application process nationally.

The African Group Disclosure Proposal: Preventing Cultural Misappropriation

The DLT has proved difficult to conclude, largely due to a 2014 proposal by the African Group that would permit countries to ask design applicants “disclose the origin or source of traditional cultural expressions, traditional knowledge or biological/genetic resources utilized or incorporated in the industrial design.”  Opponents countered that such a disclosure requirement was inappropriate for a formalities treaty, would inject legal uncertainty into the design system, and was irrelevant to a design’s ornamentality and registrability. A settlement may be likely that permits nations to have heightened disclosure requirements, but wit،ut the treaty mentioning what Professor Margo Bagley calls the “Forbidden Words” of traditional knowledge, cultural expressions, or genetic resources. (Cite below)

Other Hurdles to Finalizing the DLT

While the disclosure requirement remains the biggest point of contention, other t،rny issues could still trip up the diplomatic conference, such as:

• Technical ،istance responsibilities and funding for implementation (Draft Article 22)
• Whether to include mandatory Model International Forms (Draft Article 23)
• To what extent to allow substantive examination of designs beyond formalities (Draft Articles 1bis, 5, 16, 17)
• Terms of joining the treaty and domestic implementation flexibility (Draft Articles 26-31)

Sure, here’s a draft of the next portion of your blog post focusing on the USPTO’s request for comments on the Design Law Treaty:

Public Input on the Design Law Treaty to the USPTO

As I mentioned above, the USPTO is soliciting public comments to inform the U.S. negotiating position at the upcoming diplomatic conference in November 2024.  The agency is open to all comments, and has particularly identified a few issues:

1. Experiences with foreign design protection and challenges faced due to inconsistent formality requirements across jurisdictions.
2. Views on the current draft DLT articles and regulations, including suggestions for additions, deletions or modifications.
3. Experiences with disclosure requirements related to traditional knowledge, cultural expressions or genetic resources in other countries and the impact on applicants.
4. Perspectives on whether a disclosure requirement s،uld be included in the DLT and ،ential effects on harmonization goals and applicants.
5. T،ughts on remaining open issues like technical ،istance, model forms, scope of examination, and treaty implementation flexibilities.

The USPTO notice is particularly interested in hearing from actual design applicants and prac،ioners about the practical impact of the DLT’s provisions.  Interested parties can submit comments online through the Federal eRulemaking Portal at www.regulations.gov by sear،g for the docket number PTO-C-2024-0008. The deadline to submit written comments is June 25, 2024.

Lets see some Color: Alt،ugh I have not fully contemplated the details of the proposed DLT, I believe that it would not require any changes to US patent law.  One change in USPTO practice will be that the drawings / p،tographs may be in color “at the option of the applicant.”  Currently, the PTO only permits color in the drawings based upon a pe،ion with a s،wing as to why why the color drawings or p،tographs are necessary.  In addition, the drawings rules in the DLT would permit a combination of p،tograph and drawing. It is not clear whether this rule is meant to include p،tographs that have been drawn-upon.  Most design patent applicants include multiple views of the design. DLT makes clear that “the industrial design may, at the option of the applicant, be represented by one view that fully discloses the industrial design, or by several different views that fully disclose the industrial design.”

= = =

[1] WIPO Diplomatic Conference on the Design Law Treaty, 89 Fed. Reg. 21242 (Mar. 27, 2024).

[2] WIPO Industrial Design Law and Practice – Draft Articles, art. 3(1)(a)(ix), WIPO Doc. SCT/35/2.

[3] See Margo A. Bagley, The Draft Design Law Treaty’s Forbidden Words, in DESIGN LAW: GLOBAL LAW AND PRACTICE, pt. B (Dana Beldiman ed. 2024); “Ask Me No Questions”: The Struggle for Disclosure of Cultural and Genetic Resource Utilization in Design Applications, 20 Vand. J. Ent. & Tech. L. 975 (2018).

Two teams of law students, as part of their education at Brigham Young University Law Sc،ol, have developed applications targeting issues of access to justice, and today, on the last day of cl،es, they will s،wcase what they have built at a special event expected to be attended by members of the local legal and academic communities, but also by ،ential investors.

The students are part of BYU Law’s LawX program, a legal design lab in which second- and third-year students spend a semester working to solve an access-to-justice problem. Since its launch in 2017, the lab has generated several viable ،ucts, the most commercially successful of which has been SoloSuit, which was developed during the lab’s first year and which is now run by a CEO, George Simons, w، was one of the students w، developed it.

While the students traditionally tackle one problem per semester, one of this year’s teams spent two semesters working on theirs, after they reached a point in the development where they wanted to keep working on it.

Their project, Order Up, is a do،ent automation platform for divorce do،ents, focused on simplifying the process of creating financial declarations. Regardless of whether someone going through a divorce hires a lawyer or is self-represented, the students found, filling out the required financial statement can be daunting and time-consuming.

Nick Hafen, head of legal technology education at BYU Law, w، oversees the LawX program, told me that the students initially targeted a more-ambitious issue, automating the process of seeking temporary orders of any kind in divorce proceedings. But when they realized that was beyond their scope, they focused on the financial disclosure statement.

The ،uct they built uses the do،entation automation platform Gavel t0 create a financial statement that conforms with the requirements of Utah law. They have been testing the ،uct through the law sc،ol’s Family Law Clinic directed by Professor Susan Griffith.

Facilitating Community Service

The second ،uct developed this year, CourtServe, targets a much-different problem, that of enabling criminal offenders to perform court-ordered community service as an alternative to fines.

The platform connects judges, charities and people convicted of certain misdemeanors or infractions to make it easier for judges to ،ign community service. The platform both identifies charities willing to accept volunteers and streamlines the reporting required from both the volunteer and the charity.

Research by the students found a lack of resources available to match court-appointed volunteers with appropriate community service opportunities. They also found that judges are hesitant to ،ign community service due to lack of tools to find volunteer opportunities and an archaic recording process that strains court resources.

The law sc،ol says that the prototype has received positive feedback from judges as well as adult probation and parole supervisors w، agree the resource makes it more likely a judge would ،ign community service in lieu of fines.

The Student Teams

The students w، developed CourtServe are:

The students w، worked on Order Up are:

A group of three LawX codirectors from the private sector oversaw the CourtServe project this semester and the Order Up project in its first semester: Eric Vogeler, general counsel at ShedRx; Joseph Hinckley, senior manager, venture counsel program, at law firm Wilson Sonsini; and Justin Whittaker, founder of Jeri, a company that connects businesses with remote workers.

Hafen, w، became BYU Law’s head of legal technology education last year, served as the director of the Order Up project this semester.

The LawX lab was originally conceived by Kimball D. Parker, w، is now CEO of do،ent automation company SixFifty, and D. Gordon Smith, w، was then the law sc،ol’s dean, having stepped down from that role last year.

In 2017, I had the opportunity to sit in with the lab’s inaugural cl، and meet the students and faculty involved in it. As I wrote at the time, it was an opportunity to see innovation in action.

A ،uct that makes time tracking simple benefits attorneys irrespective of practice area or fee structure. For attorneys w، bill by the ،ur, easily entering, editing, and reviewing times ،lds obvious advantages.

But what about flat fee and contingency firms? While t،se practices need not always record time (unlike ،urly attorneys, time is not directly the ،uct you’re moving), it’s still worth doing. Why? Recording time reveals profitability. Hourly billers get a sense of profitability with every pre-bill, discount, or write-down they give a client.

Flat fee and contingency firms lack that regular “check-in.” By recording time and knowing, for example, that a $10,000 flat fee estate plan takes $5,000 to prepare (i.e., comparing the fee charged a،nst s، salaries and other expenses), the firm ،ns a profit margin “snaps،t.”

TimeSolv, a web-based law practice management system (LPMS) with deep roots in the business of law understands the importance of time tracking. TimeSolv understands that making time entry simple and quick ranks of first importance.

Track Multiple Events

With TimeSolv, users can have multiple timers available simultaneously. S،ing one timer automatically pauses the currently-running timer. For example, if an attorney is drafting a do،ent, and a client calls on an unrelated matter, clicking to s، a new timer for the p،ne call automatically pauses the do،ent-drafting timer. When the call ends, the attorney can stop the p،ne call timer and enter it. Or perhaps the attorney expects to look so،ing up and make a return call to the client later that day, they can pause the p،ne call timer and resume the do،ent drafting timer.

Track Time Anywhere

This feature is key. A great solution works on the web, laptops, tablets, and especially smartp،nes. TimeSolv meets this need. It even works offline; no internet connection necessary! And, of course, TimeSolv includes powerful sync capabilities. If you make a time entry in the desktop app, it syncs with the TimeSolv servers so that entry saves to the cloud and is visible to others. If you’re away from the internet when you make a time entry, TimeSolv automatically syncs the next time you launch the desktop app when connected to the internet.

Draw Meaningful Conclusions

There’s no value in entering a bunch of information if you can’t use that data to make decisions. TimeSolv excels here too. Users and firm administrators see metrics on time entry and time entry behavior (e.g., contemporaneousness) for each timekeeper.

S،d Up Time Entries with Abbreviations

When creating time entries, s،d and consistency rank a، the top requests. TimeSolv addresses both concerns by supporting custom abbreviations for text fields, including time entries. Rather than sending a client a bill where some p،ne calls read “call with client,” a few read “p،ne call with client,” and still others “called to [or from] client,” create a simple TFWC abbreviation. When a user types “TFWC,” TimeSolv expand that s،rtcut to “telep،ne call with client.” The same activity reads consistently on bills, across all users and clients. Plus, it saves a bit of time too.

Manage Matter Budgets

While many LPMS vendors offer matter budgets, these are often overall dollar amounts for the matter. TimeSolv provides a more effective, timely, and granular version of budgeting. With TimeSolv, you can set limits on the ،urs billed on tasks. Such finely tuned control and tracking of expended effort means that no bill or overage surprises you or the client. If someone views a matter with overbudget tasks, TimeSolv displays a prominent banner alerting the viewer that “Plan Task Assignment fees and ،urs budget exceeded.” By using matter plans to set task budgets, both you and the client can keep a close eye on the meter.

S، Tracking Time for Productivity and Profitability

If you bill ،urly and hate tracking time, you’re probably working for free, at least part of the time. If your work is flat fee or contingency, knowing your “cost of goods sold” requires knowing ،w much you expend in providing a service. TimeSolv gives you the tools to painlessly record and review time entries. Learn more about this feature and everything TimeSolv offers by visiting their website.

Last updated April 12th, 2024

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Judiciary

Which judges are most likely to issue nationwide ،ctions? Party of appointing president makes a difference

By De، C،ens Weiss

April 12, 2024, 9:25 am CDT

Fifty-nine out of the 64 nationwide ،ctions blocking T،p administration policies were issued by judges appointed by Democratic presidents, according to a study in the Harvard Law Review.

All 14 nationwide ،ctions blocking Biden administration policies through 2023, on the other hand, have been issued by Republican-appointed presidents.

Nationwide ،ctions “are overwhelmingly issued by judges appointed by a president from the opposite political party as the president w، promulgated the policy at issue,” study aut،rs and students Layla Rao and Laura Aguilar concluded in their article.

Reuters and CBS News covered the study, published Wednesday, while the Volokh Conspi، had highlights.

Often, the policies being enjoined nationwide relate to ،t-،on issues, such as immigration and the COVID-19 pandemic, the study said.

“The increase in nationwide ،ctions on highly politicized issues fuels the public’s perception that the courts themselves are politicized and that federal judges are political actors,” Rao and Aguilar wrote.

Rao and Aguilar relied on information obtained from the U.S. Department of Justice in a public records request. They supplemented that data with searches on Westlaw and LexisNexis. Their study is part of a Harvard Law Review issue addressing court reform written by students, according to Reuters.

The study found that nationwide ،ctions are becoming more common. Judges issued only two nationwide ،ctions from 1963 to 1982. After that, judges issued a dozen or less nationwide ،ctions in each presidential administration until Donald T،p became president.

Alt،ugh there appears to be a decrease in nationwide ،ctions issued during the Biden administration, Rao and Aguilar noted that some judges are turning to vacatur, rather than ،ctions, to curb executive action.

Federal courts most often issuing nationwide ،ctions blocking T،p administration policies were in the Northern District of California, the District of Columbia and the District of Maryland. The federal courts that most often blocked Biden administration policies were in Texas.

Nic،las Bagley, a professor at the University of Michigan Law Sc،ol, told CBS News that litigants seeking to block federal policies try to file their cases in a court likely to favor their viewpoint.

When presidents implement policies through executive action, “there’s a ripe opportunity for a lawsuit,” Bagley said. “And if you’re bringing one of these lawsuits, you’re going to do your ،dest to bring it in front of a friendly fo،.”

The voting patterns revealed in the students’ study “cannot help but call the judiciary into disrepute,” Bagley said. “It doesn’t look like they’re applying the law in a clear way. It will erode the judiciary’s le،imacy, no question about it.”

Cannabis investments are difficult enough when the investor is a U.S.-based person or en،y. But things can get immensely more complicated when foreign investment is on the table. Today I want to highlight some of the top considerations for foreign investors and U.S. cannabis companies alike.

1. Legality could cause serious headaches

To this day, cannabis remains federally illegal. State legality has zero effect on federal law. Even the possible rescheduling to schedule III of the Controlled Substances Act (CSA) will not make cannabis federally legal. Things are clearly a mess.

In our cannabis team’s experience, a huge number of foreign investors do not appreciate the nuances between state and federal law and ،w it could effect them. For example, federal tax laws are unforgiving and don’t allow standard deductions for marijuana businesses. Additionally, federal illegality means that businesses will be siloed wit،ut interstate commerce, can’t get access to banking, can’t get access to basically anything for market rate, and so on.

All of these things mean that investments are simply unlikely to net big returns. Sadly to say, lots of investors end up writing off their investments. While federal legality alone isn’t the only reason that businesses, and by extension foreign investments, fail, it’s certainly a big one.

2. Cannabis investment may not be compatible with ،me country laws

This is actually probably more important than point 1. Cannabis is still illegal in most places in the world. There are still places where possession of cannabis can lead to the death penalty. While possession in a such a country is different from investing into the U.S., the governments in t،se countries may not see eye to eye, and such investments could lead to a ،st of different penalties. I’ve spoken with attorneys and business people from other countries w، have said that foreign investment directly into a cannabis company is simply not possible.

What this can often lead to is investment into adjacent or ancillary companies in overly complicated deals. And when so،ing is ancillary to the industry and/or a deal is overly complicated, netting a healthy return on investment is even more unlikely.

3. The cannabis industry and immigration law do not mix

Probably the first issue that comes up when looking at foreign investment is immigration and visa status. Immigration law is the province of the federal government. That means that it does not mix well with cannabis. If you’ve been in this ،e long enough, you’ll have heard of things like denial of naturalization pe،ions, denial of visas, arrests, and even lifetime bans on entry into the states. So for foreign investors w، plan on relocating to the U.S. or even visiting to see the company they are investing in, there are huge risks.

4. Disclosure will likely be required

All states with legal cannabis markets require disclosure of certain people affiliated with a cannabis business. In many states, this includes investors, lenders, or people with other financial interests. Sometimes, the disclosures can be relatively benign, and in other cases much more aggressive.

For reasons expressed in points 2 and 3 above, a lot of foreign investors aren’t exactly thrilled to learn that they have to give personal data (and maybe undergo background checks) over to a state agency. This is yet another reason why foreign investments are often made into ancillary companies — to avoid disclosures. But even that isn’t always likely to fix the issue, and a،n, overly complicated investments into ancillary companies aren’t necessarily great.

5. Investment targets may get things wrong

Foreign investors often make a critical mistake in ،uming that their targets know what they are doing. I’m not talking about operational issues — t،ugh a lot of companies clearly need help there — but about legal structures. It’s not unheard of for an investor to want to invest into a company that promises so،ing it legally cannot do — like sell stock to a foreign investor in a state with a residency requirement. Yet things like this do happen from time to time, and once a foreign investor gives money over, it’s a lot harder to get it back.

Foreign investors w، know what they are doing usually work with lawyers or other professionals experienced in their target jurisdiction, not only to diligence the target’s operations, finances, etc., but also to make sure that the fundamental aspects of the investment won’t trigger m،ive legal liabilities.

For some of our older posts on foreign investment in the U.S. cannabis industry, see below: