If you’re an employee or employer in a dispute or lawsuit, you will be tempted– very tempted– to describe events in terms of adjectives or conclusions, i.e. labels.

For example, a worker may want to tell a boss or a legal authority “I was given unfair and impossible expectations” (the operative labels being “unfair” and “impossible”), as compared to saying something like this. “On June 5th, Supervisor Jones told me to complete 1,000 widgets in 1 minute, and I could not do that work in that time frame.”

In employment disputes, it is much better to speak in the latter terms, i.e. to speak the language of facts, than it is to speak in label-ese.

Know this: to the ears of the person(s) you want to influence, the language of labels– e.g. “unfair,” “lied,” “disorganized,” “harassed,” etc. etc.– is like the sound of nails scratching across a chalkboard.  The horrible sound of labels will muffle out the factual content of what you say.

But if you speak in the language of facts, and describe things strictly in terms of what was said and done, i.e. the terms of who, what, when, where and how, then you give yourself the best chance of having your audience actually consider what you have to say.  The audience can thereafter apply themselves whatever adjectives or conclusions come to their own minds.

Please note the audience is in control of their own decisions.  And they will resent you if you try to make decisions for them, which in effect is what you’d be doing if you speak in terms of labels.

So, whatever your employment dispute and whoever your audience, if you decide you’re going to speak up (which itself can be a big decision), it’s best you give your audience the raw facts, politely stated.  Then stand back as the audience considers the facts and makes decisions.

ICANN has designated ICM Registry, LLC (“ICM”) as the sole Registry Operator for the .xxx domain. As the Registry Operator, ICM is responsible for establishing and implementing .xxx policies and procedures, and for providing ICANN accredited registrars with the ability to offer this domain to their customers. A list of registrars presently authorized to offer the .xxx domain appears on ICM’s website.


Trademark Registrants Have a Window of Opportunity

Information for Trademark Owners

• The trademark owner must hold a trade or service mark registration of national effect that issued before September 1, 2011.
• US Supplemental Register registrations are not eligible.
• The holders of common law trademark rights are not eligible.
• Sunrise B eligibility requirements appear in full, here

A: The trademark owner would have to pursue available remedies using existing methods of domain dispute resolution, i.e., litigation and/or ICANN’s Uniform Domain Dispute Resolution Policy (UDRP).

It is sometimes difficult to define what exactly is frivolous. In most lawsuits the Defendant feels that the Plaintiff’s claims are unfounded, but that does not necessarily make the claims frivolous. The Wisconsin Supreme Court in Stern v. Thompson & Coates, Ltd, explained:

A claim is not frivolous simply because there is failure of proof, a claim is later shown to be incorrect, or a claim is lost on the merits; however, a claim cannot be made reasonably or in good faith, even though possible in law, if there is no set of facts which could satisfy elements of a claim, or if party or attorney knows or should know that needed facts do not exist or cannot be developed.Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 517 N.W.2d 658 (1994)

If it seems that the claim against you or your business is one in which there is no set of facts which could satisfy the elements of the claim, there are a number of tools your attorney can employ to try and resolve the matter and perhaps even entitle the Defendant to costs for defending the action.

Requests to admit, interrogatories, and even depositions are all strong tools that can be utilized to flush out what factual basis existed for the filing of the Plaintiff’s claims. If, after this discovery is completed, your attorney feels there was no basis for the Plaintiff’s claims, under Wisconsin Law the Defendant is required to give the Plaintiff what is known as a 21 day safe harbor to dismiss their claims before the Defendant can file a motion for sanctions. This can be a powerful motivator to resolve merit-less claims before either side incurs further costs.

Regardless of whether you believe the claim is valid or not, if you or your business has been served with a lawsuit you need to be sure to contact an attorney and be sure an answer is entered to preserve your right to defend the claims.

U.S. District Court Judge Dan Polster ruled that the qui tam provision of the patent false marking statute (Title 35 U.S.C. § 292) unconstitutional under the Take Care Clause of Article II. The Court concluded, in pertinent part:

Applying the Morrison “sufficient control” analysis to the False Marking statute, it is clear the government lacks sufficient control to enable the President to “take Care that the Laws be faithfully executed.” As discussed, supra, unlike the FCA, the False Marking statute lacks any of the statutory controls necessary to pass Article II Take Care Clause muster. The False Marking statute essentially represents a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice. See Pequignot, 608 F.3d at 1363 (False Marking statute is criminal). It is unlike any statute in the Federal Code with which this Court is familiar. Any private entity that believes someone is using an expired or invalid patent can file a criminal lawsuit in the name of the United States, without getting approval from or even notifying the Department of Justice. The case can be litigated without any control or oversight by the Department of Justice. The government has no statutory right to intervene nor does it have a right to limit the participation of the relator. The government does not have the right to stay discovery which may interfere with the government’s criminal or civil investigations. The government may not dismiss the action. Finally, the relator may settle the case and bind the government without any involvement or approval by the Department of Justice.

…

The danger of this uncontrolled privatization of law enforcement is exacerbated by the financial penalties in this statute. The penalty is up to $500 for each article falsely marked. Forest Group, 590 U.S. at 1302-1303. Depending upon the number of items, this could be a staggering amount of money or a trivial amount. The statutory penalty is not calibrated to the size or economic strength of the defendant, the significance of the product, or to the degree of competitive harm the false marking may have had beyond simply the gross number of articles falsely marked. See Id. at 1303 (“[t]he more articles that are falsely marked the greater the chance the competitors will see the falsely marked article and be deterred from competing”). It is therefore essential that the government have control over when such cases are brought, and most importantly, how they are settled. Such decisions should be made by government attorneys who have no financial stake in the outcome of the litigation or settlement, not by private parties motivated solely by the prospect of financial gain.

For the reasons discussed, supra, the qui tam provision of the False Marking Statute, 35 U.S.C. §292(b) is unconstitutional under the Take Care Clause of the United States Constitution, U.S. Const. Art. II, §3.

The Court expressed concern with the reported increase in false marking claims following the decision of the Court of Appeals for the Federal Circuit in The Forest Group, Inc. v. Bon Tool Company, 590 F.3d 1295, 1301-1303 (Fed. Cir. 2009). The District Court in a footnote noted:

The Court notes that while the qui tam provision of the False Marking Statute was enacted in 1952, a recent decision by the United States Court of Appeals for the Federal Circuit making qui tam actions more financially lucrative for relators has caused a dramatic increase in the number of actions filed. See Julian B. Slevin Co. v. Bartgis Bros. Co., 142 F.Supp. 688, 690 (D. Md. 1956) (“In 1952 the new patent law was adopted, including the false marking section, 35 U.S.C.A. 292, which now provides …). Specifically, in Forest Group, Inc. v. Bon Tool Company, 590 F.3d 1295, 1301-1303 (Fed. Cir. 2009), the Court of Appeals for the Federal Circuit held that violators of the False Marking Statute face a $500 fine for each article improperly marked rather than simply a $500 fine for a decision to improperly mark multiple articles. The Federal Circuit noted that its interpretation of the statute allows for “‘a new cottage industry’ of false marking litigation by plaintiffs who have not suffered any direct harm” but that “[r]ather than discourage such activities, the false marking statute explicitly permits” qui tam actions for this purpose. Id. at 303. As an illustration of the impact of the Forest Group decision, this Court’s search of the Northern District of Ohio docket indicates that Plaintiff alone filed 31 False Marking qui tam actions in 2010.

It is notable that the District Court raised the constitutional question sua sponte during a hearing on limited discovery on the question of personal jurisdiction. The U.S. Department of Justice was invited to intervene in light of the constitutional question, but did not do so.

In its original proposal, published in June 2010 (75 Fed. Reg. 31,763), the Patent Office indicated that under the Three-Track proposal an applicant could (1) request expedited examination (Track I); (2) could request a delay of up to 30 months in the examination docketing of a non-continuing application (Track III); or (3) proceed under current practices (Track II). It was announced that different fees would apply to different tracks, but no fee schedule was announced.

In last week’s press release, the Patent Office proposed certain requirements for entry into the expedited examination queue, including: (1) payment of filing, search, and examination fees plus an additional $4,000 fee (no reduced for small entities) to cover the costs to conduct early examination without delaying examination of other applications; (2) limiting claims to four independent claims and 30 total claims (payment of excess claim fees still required); and (3) filing of a complete application (no filing with missing parts) electronically using the PTO Electronic Filing System (EFS-WEB). [Note: If you’re not filing electronically already, you really should. It’s faster, safer, and more reliable than fax or paper filing.] The PTO release stated that, if given statutory authority to provide reduced fees for small entities, the prioritized examination fees would be $4,800 for large entities and $2,400 for small entities.

The notice also states that applications in Track I will be terminated from the prioritized examination system if the applicant files an extension of time (e.g., for filing a response to an Office Action) or files a Request for Continued Examination.

Track II and Track III fees are not discussed in the press release or proposal. Although it is not discussed, fees for Track II would presumably be unchanged. It has been widely speculated that the Fees for Track III would be the same as for Track II, but that the filing fee would be due at the time of filing with the search and examination fees being due when an applicant decides to have the application put in the queue for examination.

Citing broad support for its Three-Track initiative, the PTO appears to be trying to fast-track adoption of the new system. For obvious reasons, current PTO practice does not provide a way for the PTO to prioritize or “triage” patent applications. Although the proposed system will certainly have bumps, it seems like a reasonable way to allow patent applicants to determine which of their applications are high or low priority. Applicants needing prompt examination (e.g., for a popular product already being imitated) can expedite examination and proceed to enforcement. Applicants who are unsure of the value of a patent application (e.g., for a product that is not yet ready for market) can delay the patent process, and associated costs, while continuing towards production and commercialization.

The Patent Office’s formal proposal was published on February 4, 2011. Written comments must be received on or before March 7, 2011. There will not be any public hearings. Comments may be submitted electronically to track_I_comments@uspto.gov or at the Federal eRulemaking Portal Web site (http://www.regulations.gov). Comments may also be addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313–1450, marked to the attention of Robert A. Clarke, Deputy Director, Office of Patent Legal Administration, Office of the Associate Commissioner for Patent Examination Policy. The Patent Office stated that electronic submissions via the Internet are preferred.

DePuy itself does not have a list of patients that received the defective hip which makes it difficult to reach potential users.  Instead, those who received the defective hips are receiving letters from their surgeons informing them of the recall.  The best available evidence suggests that the product is “metal-on-metal”, which causes metal shavings to release into the body and cause significant pain and possibly blood poisoning.  In addition, the metal grinding causes the socket to become dislogdged from the hip, causing significant pain alleviated only by a follow-up surgery.  It doesn’t appear that DePuy will have any strong defense to the claims, but rest assured that the claims process will be difficult, lengthy and time consuming.

The Warshafsky Law Firm is currently handling several DePuy products liability claims and intends to seek maximum compensation for those affected.  If you or anyone you know has received a letter from your surgeon regarding the recall, please feel free to call the Warshafsky Law Firm regarding your possible claim.

Also Ordered to appear is Dr. Gene Musser, Chairman of the Wisconsin Medical Examining Board. He has been ordered to explain the details of the investigation by the Board, and what information the Board still needs to complete its investigation, should it request additional information.

The show cause Order has many implications beyond this particular case.  Presumably, the Board will now have to explain the reasons it may take upwards of 10 years for it to discipline a doctor found to be negligent.  It will also have to explain the steps it takes and the timeframes involved in its investigation of Wisconsin doctors accused of malpractice.  Some predict that what is lingering behind is the scenes is a Board that wants to protect its own doctors.  Other predict is simply a case of budge constraints and the limited capabilities of the Board.  Either way, the Order will allow the public a glimpse at how Wisconsin doctors are disciplined, and hopefully provide more transparency for patients to choose skilly doctors.

Both Kelly Sankbiel and Dr. Gene Musser will appear before Milwaukee County Circuit Court Judge Thomas Cooper on August 13th, 2010 at 10:30 A.M to respond to the Order.  The hearing is open to the public.

In 2004 Ken Plants filed a medical malpractice action against Dr. Cully White alleging Dr. White operated on the wrong side of his spine, causing severe and permanent nerve damage.  The lawsuit also alleges Dr. White billed for a surgery ($7000) he did not perform and subsequently lied to Ken Plants about the surgery.  The lawsuit settled in August 2009 for 2.9 million.  Ken Plants refused a confidentiality clause that would have made the terms of the settlement confidential.

The writ targets the Medical Examing Board, which has the responsibility to “investigate allegations of unprofessional conduct in a reasonable time.”  Despite hand delivering every possible piece of evidence to the Board, the Board has not provided Plants or his attorney with investigation materials, or even if the investigation has begun.  The writ demands the Board do the following: 1) provide the petitioner with the Board’s report generated in this matter; 2) if not report has not been generated, an update on actions in furtherance of a report; or 3) how the Board intends to complete its report and when.

This Writ follows an interview with ABC 12 last Fall where the Board admitted that it takes 4, 5, or even 6 years for the Board to take any action following settlement or trial involving medical malpractice.  A typical medical malpractice case takes about 3 years to settle or go to trial.  It then takes 4-6 years before the Board takes any action against the doctor.  Essentially, it could take upwards of 10 years before a doctor is disciplined by the State of acts of negligence.  Prospective patients have absoulutely no way of knowing a doctor they are choosing is being investigated during that 10 year period. The writ appers to force the Board to provide greater transparency and actually carry out the Wisconsin statutes aimed at protecting the citizens of Wisconsin.

This is welcome news to most patent applicants and practitioners. As I’ve previously written, Director Kappos made it a high priority to change a system and culture that equated higher rejection rates with higher quality patent examination. It appears that Director Kappos’ reforms are working.

The Milwaukee Journal Sentinel recently reported on how the combination of patent office backlog and high rejection rates costs the U.S. economy at least $6.4 billion a year due to lost investment, economic growth, and potential employment from lack of meaningful protection for new innovations. An increase in patent allowance and issuance could help reduce patent office backlog, increase domestic innovation and investment, and spur economic growth. But if that happens, don’t expect the patent system to get much credit from the pundits and politicians.

The CPSC (Consumer Product Safety Commission) recently recalled the dart guns to prevent further sale of the item and further asphyxiation deaths.  Interestingly enough, it appears that Family Dollar was the company that worked with the CPSC to see the item to recall - not the manufacturer nor the distributor.  While noble, this does not absolve Family Dollar from a Wisconsin products liability action.  In Wisconsin, every person or entity in the chain of distribution is liable for the defective and unreasonable dangerous product.  This includes the manufacturer, the distributor and the end seller.  Allowing the injured party to recover from anyone in the chain of distribution has two positive effects on consumers: 1) it increases the likelihood that there will be a party to recover from in the event the product in manufactured overseas or by a defunct company; and 2) it makes end sellers more cognizant of the products they buy, thereby eliminating or reducing the ”junk products” that make their way to consumers.

Products liability actions are often very difficult to prove and also very expensive.  They often require hiring an expert to state that the product is defective and unreasonably dangerous.  They also require an expert doctor to opine on the injuries or death of the injured party. 

Although the injuries are different, this product recall is eerily similar to the MTD Recalls I have previously written about on this site and am currently handling for the Warshafsky Law Firm.  Both involve a defective product recalled by the CPSC that remains in the general public causing injury to users.  Those injured by defective products should contact an attorney experienced in handling products liability actions immediately to preserve their rights.