B LAW FINAL

OECD

-organization of economic cooperation and development -signatories must legislate to criminalize bribery -to study, promote economic and social policies -promote anti bribery -41 nations *end of ch.12 part 1 international business*

free trade to acquire wealth ex.

-Sanders/Trump arguments specious -imagine 50 states with tariffs. -only helps industries that are not able to compete globally and does protect some jobs, but not good for consumers

defenses to civil rights act of 1964: bona fide occupation qualification (BFOQ)

-defense for only 3 of the 5 protected classifications: sex, national origin, religion -no legal reason to discriminate exists based on race and color -legally you cannot discriminate against race or color ever -to win: employer must prove hiring, for example a woman instead of a man, would undermine the essence of the business organization: affirmative offense -can never use preferences in a way to undermine

direct foreign sales

-direct exporting: sell goods directly to buyers located in other countries -manufacturer assumes responsibilities for sales to another country: controls marketing, export licensing, shipping, collecting payments

IP policy: seeking a balance

-due to pluses (monopoly etc.) & minuses (higher prices, temporary anti-competitive effect) law require those seeking IP protection to obey strict rules -ex. deadlines, protecting their IP rights etc. -without IP protection- rights are lost to "public domain" to benefit all

maintaining confidentiality

-employees often leave a business with TS's; high risk of losing them to competitors -private legal means to protect from terminated/resigned employees: -confidentiality agreement

civil remedies & criminal enforcement for appropriation of trade secrets (3)

-injunction -damages -criminal enforcement

health and safety at state level- workers compensation

-organized through state law- one of the first employee protections -system for compensating for injuries without determining fault -all accidental injuries suffered in the "course and scope" of work -use of system generally precludes litigation -issues that may remain: was it in course and scope? was it accidental or intentional?

Word bank

-promotes economic development in poor countries by making loans to finance necessary development projects and programs -allows members to draw on lines of credit to stabilize currency exchange rates *(development institution)* -ex. When nation's currency, signaling a possible collapse, World Bank will prop it up, but with conditions

computer software programs

-protected since 1980 -language: anything that can be "perceived, reproduced, or otherwise communicated, either directly or with aid of a machine or device" -includes operating systems

1.disparate treatment doctrine

-proves employer's intent to discriminate -provide plaintiff with lesser burden of proof than normally applies in civil cases -called PRIMA FACIE case (less than a preponderance of evidence)

Civil Rights Act of 1991 (amended CRA of 1964)

-provides enhanced damages (tort-like compensatory & punitive) for intentional discrimination -protected: race, color, sex, national origin, religion, and disability -previously: only economic (contract) damages (back pay etc.) & reinstatement -damages capped by company size: 15-100: $50,000 101-200: $100,000 201-500: $200,000 and over 500: $300,000

fair use factors (4)

-purpose and character of the use is for commercial or nonprofit educational purposes -nature of the copyrighted work -amount and substantiality of the portion used in relation to the copyrighted work as a whole -effect of the use upon the potential market for the copyrighted work

protected trade secret (TS) rights

-reasons: to prevent or penalize those who may misappropriate a qualifying secret

affirmative action

-requirement means that federally contracting employers must actively recruit members of minority groups being underused in the workforce -

remedies under the ADEA

-willful violations of the act permit discrimination victims to be awarded double damages -a plaintiff cannot recover money damages against a state entity but remedies for age discrimination perpetrated by a state

what laws pertain to an international transaction? (4)

1. *national laws and regulations*: each country in transactions law is involved 2. *private international law*: how will law of one country be respected by another?- recognition of foreign contracts, judgements 3. *public international law*: treaties and commercial customs 4. *international organizations*: U.N., European Union, etc.

reverse discrimination

when minorities or women with lower qualifications or less seniority than white males are given preference in employment or training

IP Rights When Recording a Concert

(1) Copyright-musical composition (licensed to publisher) (2) Copyright-lyrics (publisher) (3) Copyright- performance (label) (4) Band's right of publicity (5) Trademarks owned by band

employee income security act (ERISA)

-1974 Nixon signed this law to protect employees whose employers have voluntary pension plans

Mitsubishi Motors v. Soler Chrysler-Plymouth (1985)

-Arbitration Clause upheld even when it meant applying federal antitrust law (exclusive subject matter jurisdiction to federal courts/can only use federal courts)

minimum wage fun facts

-Highest minimum wage in country is Seattle, Washington. Gradually moving to $15 an hour. -US is one of the lowest minimum wage for developed economies

UN convention on the recognition and enforcement of foreign arbitral awards (1958)

-adopted by 156 nations -signatories agree to enforce arbitrations -limited defenses: ex. lack of notice, violates a nation's public policy *end of ch. 12 part 2*

criminal enforcement

-federal crime under economic espionage act -party appropriating- fines and imprisonment

Names?

-if it acquires a secondary meaning AND on the PRO's supplementary register for 5 years -ex. Edward Jones (securities), Ford (cars), Disney (theme parks, movies)

damages (legal)

-monetary loss from losing TS

reforms?

-must license a patent to another (at a reasonable fee) if you do not produce -encourage formation of a market for selling rights for those who can't produce the invention

trade potential today is the best ever because: (3)

1. growth of democracy 2. resurgence of market-oriented economics 3. decline of socialism

ex. of enforceable only in area of business

Ex. X uses a trademark for his small business in State College called "Lawn Express". Z uses the name in California and registers with PTO. X would only preempt Z's use in State College.

limitations on copyrights

First Sale Doctrine: Owner of a copy has a right to redistribute or display it. -but cannot make new copies or excessive copying of original -must actually BUY it -by license or lease normally not governed by first sale doctrine

Ex. Bangladeshi Building collapse that killed 1,129 and injured 2,515 in April, 2013

Some blame: managers sent workers back in the factories despite warnings of structural problems Pressure to complete the orders for the Brands on time. Short production deadlines imposed by Western buyers

uniform trade secrets act (UTSA)

a successful trade secret case consists of 2 primary elements 1. establishing that a trade secret exists 2. demonstrating misappropriation

trade secret

any form of knowledge or information that has economic value from not being generally known to others, or ascertainable by proper means and has been the subject of reasonable efforts by the owner to maintain secrecy

UN encourages the use of _____ in commercial agreements made by companies in the signatory countries

arbitration

the employer can beat the plaintiff's claim by proving the ________

business necessity defense -this defense requires that the employer prove that the practices or policies used are job related and consistent with a business necessity

electronic communications privacy act of 1986

current employees may not be tested randomly, but may be tested as a result of a specific incident or activity that causes economic injury or loss to an employers business.

sexual harassment- hostile environment (4 elements)

elements: 1. alleged victim must be in a protected group 2. alleged victim must be the subject of unwanted sexual harassment (subjective element) 3. harassment must be based on alleged victim's sex 4. harassment must affect the "terms, conditions or privileges" of the alleged victims employment (objective element)

central America-Dominican Republic free trade agreement (CAFTA-DR)

eliminate the barriers on products trade between member countries

sanctions:

essentially damages paid to US for economic losses suffered from violation

how far does protection for knowledge based assets extend?

ex. employee skills and talents, designs, inventions, technologies, processes and methods of business operation, reports, manuals, databases, customer and supplier lists, brand identity, software, new products research, marketing plans. -if you have property, you have to use it -all these may be protected by IP as patents, copyrights, or trade secrets

SCOTUS decision of Griggs v. Duke

if hiring practices have disparate impact then employer must demonstrate that selection criterion has BUSINESS NECESSITY & alternate measures not available

EEOC definition of disparate impact:

selecting workers in protected group, such as blacks, at less than 4/5ths the rate for whites

SCOTUS in Alberto-Culver:

-"Whatever recognition the courts of this country might ultimately have granted to the order of the foreign court, the dicey atmosphere of such a legal no-man's land would surely damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements..."

what info can you use to hire a new employee?

-CRA of 1964: protects from intentional discrimination and the effect on discrimination on protected groups -question of effect: can you automatically excludes or even convictions of felonies? -can you automatically exclude high school dropouts? -how about personality, looks, "chemistry" with applicant?

what isn't fixed in tangible medium

-Content in lectures, sporting events, comedy acts etc. -However, once recorded, written down etc. they are fixed and protected.

ex. of PIL

-Custom-respect for commericial shipping in international waters, respect for another's embassy -private involvement: international monetary fund (IMF) world bank, etc. important for creating international customs that nations voluntarily follow

ex. of private/public law- contract or tort law

-UCC? CISG? states common law? -when exporting goods to and from a foreign country

patents

-US law: offers incentives to inventors to invest time/money to create new inventions -incentive: right to exclude others from competition for a specific time- a government granted right to monopolize -patent law (both procedural/substantive) government by federal law

america invents act (AIA)- new law in 2011

-a big change from first-to-invent to first-to-file system

legal justification for IP: 5th ammendment

-cannot depriving someone of life, liberty, and property without due process -just compensation for taking land from someone (eminent domain) -US can take away property, but they have to compensate for it

exceptions to what can be copyrighted

-cannot protect cloverleafs, tents, bridges, roads, etc. -if it can be seen in, cannot prevent pictures

misappropriation

-cause of action- what you sue people for -disclosing information you promised to keep secret (duty breach under contract) -ex. employee signs a contract promising to keep trade secrets a secret -receiving information from someone who promised to keep it secret (one who gives secret has duty under contract) -stealing information from another

infringement

-civil violation of a trademark -violator infringes on the trademarks property right through an unintentional or a willful unauthorized use, misappropriating the goodwill and reputation that the trademark represents and confusing the public about the identity of the user

trade dress

-color or shape associated with a product or service -ex. red color scheme of Coca-Cola -prevents Coca-cola competitors from designing a shape that resembles a coke bottle and attaching the characteristic coke red to the design -also includes distinctive store decorating motifs (McDonalds) or package shapes and colors

other ways to lose a trademark- abandonment

-federal law: trademark owner ceases use of trademark without intent to resume use in future -non-use of trademark for 3 consecutive years creates rebuttable presumption of abandonment (whether registered or at common law) -temporary or seasonal non-use of trademark (particularly when industry is cyclical) does not constitute abandonment- ex. Xmas, holiday sales

tarnishment

-firm uses a trademark in a way that creates a negative impression about the famous company -ex. Ben & Jerry's sued a distributer of adult films who wished to use the name Ben & Cherry's

PTO will deny registration in the following circumstances:

-if the mark is the same or similar to a mark currently used on similar related goods -if the mark contains certain prohibited or reserved names or designs including the US flag, gov't symbols, a deceased person, persons name without consent etc. -if the mark merely describes a product or service for example "Fast Food" for a restaurant franchise -if the mark is generic and represents a product or service like "cell phone" for a wireless communication company

civil acts right of 1964 (CRA) title VII

-illegal to discriminate in any employment practice (hiring, firing, promotion, benefits, etc.) based on FIVE projected classifications: -race, color, sex, national origin, religion -can be enforced both privately and by EEOC -applies to private sector (15 or more employees) and public sector -age (age discrimination in employment act- ADEA) disability (americans with disabilities act- ADA), and certain leaves of absence (family medical leave act- FMLA) are also protected, but by different federal statutes

north american free trade agreement (NAFTA)

-increased foreign investment and opportunities for economic growth in the US, Mexico, and Canada -free trade is at the core

subject matter:

-most common attack on patent's validity: -although not eliminated the subject matter for potential patent is quite broad -particulary true for utility patents -ex. is a genetically modified bacterium patentable subject matter? yes

licensing or franchising agreements

-owner of franchise/holder of intellectual property (e.g. trademark) grants trademark/franchise to foreign firm -franchisor- grant a trademark (golden arches of McDonalds) -sets time/period contractual conditions -charges licensing fee -allows the international business to enter a foreign market without any direct foreign inventment -franchise model- protects contractually franchisors intellectual propety

sexual harassment typical case & what is it called

-plaintiff who has been promised benefits or threatened with loss if she or she does not give sexual favors to an employment supervisor -called quid pro quo

specialists export trading companies (ETC's) export managing companies (EMC's)

-take part of your company and take on the risks -exempted from anti-trust laws -other countries use them too to penetrate the American market

expropriation

-the seizure of foreign-owned property by a government to benefit public -when the owners are not fairly compensated, the expropriation is also considered to be a confiscation of property

novelty, non-obviousness & utility

-to establish novelty- must be first to come up with invention -came up with something that has never been created before

generic

-trademark owners must be vigilant in protecting their marks because a trademark becomes generic if it loses its distinctiveness, it also loses its status a projected trademark *end trademarks-post*

registration and use

-trademark protection: generally based initially on USE -USING trademark prevents others from using it -registration creates better rights after its use in commerce -use in commerce is pre-requisite to federal registration (intent to use)

generfication

-trademarked products can be LOST IF they become generic -ex. Aspirin, cellophane, cola, margarine, refrigerator, videotape, escalator, linoleum, zipper, heroin -How?: Improper/sloppy advertising, labeling causes consumers to use mark as "name" of the product/service; trademark loses distinctiveness

joint ventures

-two companies join to create another company to share expertise -ex. Ford creates joint venture with German batter company to create electric cars -some countries, particularly developing countries by law: joint venture with local company- local participation -gov't has to have some part in it -often rejected: US companies won't share technology and trade secrets

Japanese ETCs

-used successfully to penetrate world markets (would represent Toyota, Nissan, etc.)

1970s embassy takeover

-violated international law -"students" from Iran went over embassy walls and took Americans as prisoners -Jimmy carter couldn't get them out, and they were there for 300+ days

2. public policy tort (43 states)

-when employer undermines a state's public policy when terminating an employee -Some protections codified (in statute) in some states for whistleblowers especially in certain industries. If you blow the whistle on a nursing home abusing the elderly, then you are protected -(Ex.: jury duty, workers compensation, taking time off to vote, filing a domestic violence claim, failing to work where there were significant health and safety risks) -ex. A guy from California got called for jury duty and he got selected and was on a long trial. When he returned he was fired for that. There was no law against that at that time. If people get fired for going on jury duty, then no one will show up for jury duty. So they created this exception, you can't fire someone for serving on a jury. -Ex. Guy in Nevada filed for workers compensation because he was hurt on the job. He got fired for that. Ramifications of that are people won't file because they don't want to lose their job. So they ruled this a public policy tort. -employer retaliation for employee refusing to violate state criminal statue for employer's benefit- ex. refusing to dump dangerous chemicals in a river

four factors to balance:

1. Purpose and character of the use (parody?) 2. Nature of the copyright work (in public interest?) 3. Amount used (what is necessary to achieve purpose) 4 Effect of use on potential market (economic impact on owner)

establishing PRIMA FACIE case: (based on first impression)

1. alleged victim belongs in a protected group 2. person applied, was qualified, but didn't get job 3. employer continued to look for another for the job -creates presumption of illegal discrimination -employer- defendant bears burden of rebutting presumption -called burden- shifting, rare but used in civil rights cases

common law provided the employer with the means of escaping this tort liability of workers comp in most cases through three defenses:

1. assumption of the risk 2. contributory negligence 3. the fellow-servant rule

CRA-1964: Proving Hiring Discrimination-Disparate Treatment 2 methods of proving intent to discriminate:

1. disparate treatment doctrine 2. pattern or practice of discrimination

two scenarios of employer liability:

1. if victim suffers either actual economic loss (fired, no raise) or tangible employment benefit (promotion even with no raise) employer is strictly liable- no defenses 2. no tangible loss (e.g. hostile environment cases) employer liable, but has 2-prong defense: -a. employer must show it exercised reasonable care to prevent & correct promptly any sexually harassing behavior AND -b. victim unreasonably failed to take advantage of any opportunities provided by employer to correct harm (victim has to mitigate)

to win a trademark infringement lawsuit a defendant will usually present one of three basic defenses:

1. mark is not distinctive 2. there is a little chance of the public being confused by use of a term trademarked by someone else 3. the use is a "fair use"- allowed by Lanham Act & relates to a discussion, criticism, or parody of the trademark in the news, media, internet, textbook

new system

1. must file first (have grace period #3) -means inventory cannot steal from another, no prior art or patent 2. AND, inventor must be first to disclose invention before filing -disclosure: publication (a writing in magazine, internet) slides, posters, ads: must "teach" or "enable" others in how to duplicate invention 3. have one year from disclosure to file or lose right to patent (grace period) -lenient approach: in Europe if you disclose before you file you lose right to patent invention. Must keep it secret.

generally international law is classified as either

1. public international law 2. private international law

copyright infringement means violated one of the owners exclusive rights: (5)

1. reproduction 2. creation of derivative works 3. distribution 4. performance in the case of literary, musical, or audiovisual works 5. display, in the case of literary, musical, or audiovisual works

types of hostile environment sexual harassment: (4)

1. supervisor on subordinate employee 2. employee on employee- theres no power here, so they are always hostile environment situations 3. harassment by 3rd parties- patients, customers, vendors, and suppliers 4. perception of harassment- preferential treatment was perceived to have been given to supervisor's paramours (3) due to their relationship

4 necessities for managers:

1. understanding other currencies 2. overcome language/cultural barriers 3. recognition of managing those with religious/ethnic differences- be tolerant and adjust to change 4. learning to do business with foreign legal systems, with foreign regulators, etc.- rest of world uses mainly civil law legal system

3 types of patents

1. utility patent 2. design patent 3. plant patent

three business models: FDI/transnationals engaged in foreign countries:

1. wholly owned subsidiary 2. joint ventures 3. expansion

copyleft

practice of offering people the right to freely distribute copies/modified versions of the work with stipulation that same rights (free distribution) be preserved down the line

ADA

prohibits employer discrimination against job applicants or employees based on: 1. their having a disability 2. their having a disability in the past 3. their being regarded as having a disability

legal justification for IP: US constitution

property rights in general protected

the system

state workers' compensation statutes provide a system to pay workers or their families if the worker is accidentally killed or injured incurs an occupational disease while employed.

treaties:

like contracts between nations; can be bilateral and multi-lateral (many nations)

issue: can you use foreign nationals as agents to bribe. Can they pass money on legally?

no, and companies must use due diligence (detailed explanations) in justifying their hiring

in many instances, the only legal or political means a firm has to invest directly in a foreign country is to engage in a ____

-joint venture with an entity from that host company

tenured professors and teachers

-given special protection after probationary period (7 years) -hard to prove someone is a bad teacher mainly to protect against academic integrity and freedom

Ex. of ATS

- Chiquita sued for "aiding" (protection $) Colombian death squads. Court would not dismiss (see Sidebar 12.10 in book) Chiquita violated law of nations

who are not employees at will? (5)

-government workers (after probationary period) -contractual workers with an expressed term -independent contractors -unionized workers -tenured professors and teachers

additional facts about workers compensation

-Got idea from Germany- 1880s -strict liability scenario- pretty much have to pay for anything that happens on the job even if the employee was acting negligent -always available for workers -worker has to prove it happened on the job and was unintentional

brands vs. trademarks

-branding: historically-burning symbol on cattle to associate ownership -symbol was like trademark today -all brands have trademarks (ex. General Motors- a family of cars) but not all trademarks are brands (Corvette- a car in the GM family also has a trademark) -trademark identifies source of good

can a trademark be cancelled

-Lanham Act 2(a) allows cancellation of marks that "disparage...persons, institutions, beliefs, contempt, disrepute of a group" etc. -Ex: Washington Redskins- 6 Trademarks cancelled in June 2014 PTO ruling -Upheld in July 2015 by Federal District Court -Court: was "contemptuous 70 years before first mark in 1898 -can still USE marks -but no federal registration projections- preemption, presumption, statutory damages, etc.

prevention of generfication

-"kleenex" plus word "tissue" in context (so word kleenex doesn't replace the word tissue) -use word "photocopying" not "xeroxing" through PR campaign -TM symbol (unregistered trademark) -R (registered trademark)

misappropriation can occur when one improperly acquires secret information through

-burglary, espionage, or computer hacking -also occurs when one discloses info that one had a duty to keep secret

providing business necessity- validation of means of selection: examples of validated tests that may have disparate impact on protected groups:

-*criterion validity*: intelligence tests which statistically correlate with performance. Ex. nursing exam & license, bar exam -*content validity*: physical or manual tests required for job. Ex. typing tests for secretary, physical endurance tests for firefighters -*construct validity*: psychological tests required for certain jobs. ex. police, firefighters, CIA, FBI -bottom line: even if greater than 4/5ths result indicates test disparately impacts protected group, it would still be legal if test was validated

employment at will (EAW) doctrine

-*employment at will*: presumptive rule of employment in all US states (except Montana by statue) -70% of American workers -created by common law precedent or state statute -*employee*: -can be fired for: a good reason, bad reason, or no stated reason at all -as long as its not an illegal reason -*employee at will:* no specified length or term of employment expressed contractually- stating no reason- not required y law to tell them why they were fired

multiple terms- all protected: (4)

-*trademark*: mark, work, picture associated with goods indicating source- ex. Ford, Tide -*service mark*: mark associated with service- ex. Google -*certification mark*: mark used (other than owner) to certify quality of good/services ex. Good Housekeeping Seal of Approval -*collective mark*: mark representing an organization ex. Big Ten

1. implied contract exception (39 states)

-.Under the implied contract exception, an employer may not fire an employee in a situation where an implied contract has formed between an employer and employee -comes from: employee handbooks and/or statements -handbook ex.: if we terminate you, we will tell you why, and give you the opportunity to defend yourself. Giving you due process. -ex. A woman was terminated in Nevada and they didn't tell her why, so she went to a good lawyer. The lawyer agued that she was an employee at cause, not at will. -Statement: oral statement that if you did a good job you would have a job for life. Transformed person from being an employee at will to an employee at cause.

selected and important federal exceptions to employment at will: *title VII civil rights act of 1964*

-15 employees or more in private sector -no terminations based on race, color, national origin, religion, and gender

selected and important federal exceptions to employment at will: *americans with disabilities act of 1990 (ADA)*

-15 employees or more in private sectors -protects the disabled in employment -worker can't fire disabled employee who can perform the "essential functions" of job (otherwise qualified) -as long as they are performing at an adequate level, you can't fire them -you also have to accommodate for their new disability -"reasonable" is determined by an organization's resources: can't be an "undue burden"- example if making the accommodations makes the company go bankrupt

selected and important federal exceptions to employment at will: *labor management relations act (LMRA)*

-1936 -no terminations for normal union organizational activities (striking and picketing) -all employees in interstate commerce (very broad)

selected and important federal exceptions to employment at will: *age discrimination in employment act (ADEA)*

-1967 -20 employees or more- 40-70; amended to 40+ -exception: safety, high ranking management (people like police, pilot- 65 is the termination age) -40+ came from a Floridian who was very old -you can go up to a 39 year old and say you're fired because you're too old, but once they turn 40 it's illegal

the "Hooters Legal Saga"

-1995: EEOC alleged Hooters' hiring practices discriminated against men & conducted extensive, four-year investigation -Hooters: responded by waging public campaign challenging EEOC's allegations; centered campaign on phrase- "Washington Get a Grip" -EEOC: eventually dropped investigation -Hooter' private challengers (the men) brought class action lawsuit against it- continued to sue privately -1997: company settled lawsuit for $3.75 million. Under the terms of settlement, company allowed males to work as bartenders and hosts, but continued to hire only women as servers

CRA-1964:Proving Hiring Discrimination-Disparate Impact

-2nd main method: disparate impact doctrine (does not require proof of intent) -employer uses facially neutral criteria that may disparately (differentially) impact applicants in protected classifications (e.g. race, etc.) causing discriminatory effect. -plaintiff must prove that the employer's practives or policies had a discriminatory effect on a group protected by Title VII. -developed in Griggs v. Duke Power Co. (1971) in North Carolina

the role of state law- exceptions to employment at will

-3 main exceptions under some states' common law: can't do it through legislature, but can do it through courts 1. implied contract 2. public policy tort 3. implied covenant of good faith and fair dealing

civil rights act of 1866 section 1981

-bans racial discrimination in -give a private plaintiff most of the same protections against racial discrimination that the 1964 civil rights act provides -there are no capped damages under this -does not cover discrimination based on sex, religion, nat origin, age, handicap- only racial

selected and important federal exceptions to employment at will: *family medical leave act of 1993 (FMLA)*

-50 or more employees -can't fire employee for taking leave for "serious health condition" (SHC) for self or family members -something that will take a normal person out of work for more than 3 days -ex. pushback from all the single mothers- were working a crappy job and not getting money from partner. They would take off days when their kids would get sick, and then get fired. -it's UNPAID, just ensures your job -employee: receives up to 12 weeks of unpaid leave a year -employee: required to take FMLA concurrently with existing company sick leave

AMA v. Martin

-Al minor & Assoc.-actuarial firm -about 500 clients- a client list developed by Al Minor & Assoc. since 1983 -2003: Martin formed company -solicited 15 clients from Al Minor & Assoc. -AMA sued for trade secret misappropriation under state law -list: secret and kept secret -court: -client list: meets definition of trade secret (value of being protected & not readily ascertainable AND kept secret -Martin found liable

current international law issue- Spratly Islands/South China Sea

-Chinese are building these islands and putting military -establishing a huge economic zone- can exclude shipping -US sent naval close to these islands trying to get rights for the Philippines because it is their land

2007 case of stealing Coke's formulas in development to sell to pepsi for $1.5 million

-Coca-cola possess protectable trade secrets on newer products -2007 a jury convicted a former secretary for conspiring with others to steal secrets for products in development and sell them to rival Peps for $1.5 million *end of ch.11 trade secrets*

recent private international law issue: Amanda Knox

-Convicted, won an appeal, appeal vacated, tried again and won, appeal by state reinstated her as guilty -wouldn't see this in US because of double jeopardy -highest appeal overturned guilty verdict- if they had used treaties to get her back to Italy this would create a huge problem with the US

many state/local: created additional protected classifications or augmented existing federal employment laws:

-D.C., Iowa, Kansas, New Jersey protect age at 18 -32 states and DC and many local gov't now have sexual orientation as a protected classification for hiring: -PA -1975: first to ban sexual orientation discrimination; only in public sector -WI -1982: first to ban sexual orientation discrimination-both sectors -Public employees of federal government, does not cover private workers -18 protect transgender discrimination in hiring -Michigan, Santa Cruz, CA, San Fran, D.C., protect weight as protected classification -Michigan also protects height -22 states: protect material status in employment & other discrimination like housing (whether single or married) *end of ch. 20 discrimination*

Griggs v. Duke Power Co.

-Duke Power Co. was segregated workplace -blacks allowed to work as low level laborers at much lower pay -after 1964, blacks could apply for better positions, but must have high school diploma or certain IQ -had the effect of excluding blacks- high school dropout rate- three times higher for blacks than whites in that area -issue: can high diploma be required for job as janitor when it disparately impacts people in protected classification?

the "naughty nurse case"- Wagenseller v. Scottsdale Memorial Hospital: A public policy tort?

-Employee (Wagenseller): staff nurse, "at-will" employee -claimed her refusal to engage in acts of public indecency on rafting trip was proximate cause of her termination -claimed boss harassed her, used abusive language, embarrassed her in front of company staff -brought suit vs. hospital asserting termination was wrongful under public policy tort -hospital: argued "at-will" employee -how did court decide?

grace period in AIA

-Example: Ira invents a jacket using a new Velcro closing mechanism in Jan. 2014 and discloses it on a website. -Bill invents a mechanism like it in March 2014. -Bill files with PTO in April 2014. -Ira files his patent with PTO in June 2014. -Ira, in fact, has until Jan. 2015 to file because of the one (1) year grace period. -Ira would gain patent since he disclosed first AND files within one year of disclosure. -Bottom Line: File as quickly as possible, but if not, adequately disclose before anyone else too. -Remember: Ira's invention can still be attacked for not being obvious, but appears to have utility.

foreign direct investment & multinational corporations (transnational companies)

-FDI/transnational: firms with significant foreign investments, assets, or operations -move technology, factories, capital to countries with most favorable economic conditions -do business/create alliances with each other with contracts -encounter less government interference -political influence: local jobs, access to political power, bribery issues, etc.

sovereign immunities act (FSIA) immunity- can you sue a foreign state?

-FSIA or sovereign immunity doctrine: US citizen cannot generally sue a foreign state (common law) -absolute until 1952- then courts adopted "restrictive theory" -codified: 1976: no suit allowed for public acts of foreign state; but can sue for commercial (make profit) acts of foreign states in the US or directly affecting US -called *commercial activity exception*

LSU v. Smack apparel Co. (5th CIR. 2008)- A case of confusion

-Facts: LSU et al. alleged that Smack's t-shirts create likelihood of confusion among consumers. -Smack produced t-shirts bore distinctive color schemes of various universities (like LSU) with sarcasm or puns relating to the school or team. -LSU's color scheme was not trademark protected by registration

Dayan v. McDonald's (1984)

-French franchisee allegedly violated McDonald's "Quality, service, & cleanliness" (QSC) requirements in the franchise agreement -regulate more in Europe- have to try and adapt to the local customs -"Grease dripping from vents ... dogs defecated where food was stored, and insecticide was blended with chicken breading..." -court- McDonald's could revoke from franchisee its name and trademark

Kiobel v. Royal Dutch Shell (2013) (in book p. 269)

-Shell accused of acting with Nigerian government of killing, torturing, suppressing Ogoni people -SCOTUS: ATS should not be applied to extraterritorial disputes involving corporations in U.S. or doing business in U.S. -ATS was not uniquely created to be a forum for enforcement of international matters. -Important change in ATS interpretation-narrower application -ATS only applies to conduct within the US or on the high seas,h however if a substantial aspect of the "revenant conduct" occurs with in the US along with acts outside of the US, a claim may be sustainable

PTO process:

-Takes about 16-18 weeks -Examined for conflict (confusion with other trademarks) -No scandalous, disparaging marks (Lanham Act 2(a) -No living or deceased persons without permission (right of publicity)- ex. McJager's tongue, Elvis impersonators have to give his heirs money or else they'll be sued -Distinctiveness (names: "Fast Food", "Cell Phone" not distinct)

US and public international law historical example: Bush Doctrine

-This duty obligates the government to anticipate and counter threats using all elements of national power. -Allows us to go anywhere in the world and suppress terrorism against the United States -Act preemptively in exercising our inherent right of defense

IP & founding fathers

-Thomas Jefferson: new designs for plow, clock, dumb waiter, macaroni machine, gunknife, autopen -Ben Franklin: bifocals, electricity, lightning rod, etc

FMLA US vs. Norway- a contrast of policies on leave

-U.S., Liberia, Papua New Guinea & Swaziland - only countries without paid maternity leave (paid leave in Calif., Conn.) -Norway: -56 weeks (13 months) (80% of pay) or 46 weeks (10.5 months) (100% of pay) -paid by gov't, not company -mother must by law take at least 3 weeks immediately before birth and 6 weeks immediately after birth -reason it's by law is because they are worried people wouldn't take it because they didn't want to hurt their career -father must by law take at least 12 weeks (the so called "daddy quota")- the rest can be shared between mother and father

Monroe Doctrine

-US and Public international law historical example: -Monroe Doctrine: become customary law that is respected -"The occasion has been judged proper for asserting, as a principle in which the rights and interests of the United States are involved, that the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European Powers." -We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power we have not interfered and shall not interfere.

the WTO has the power to hear disputes involving member states example

-US brought an action against the EU claiming that the European wide restrictions on genetically modified food violated WTO rules -US & Mexico: WTO held that Mexico's beverage tax on soft drinks made with imported sweeteners is discriminatory. Under beverage tax, soft drinks made with cane sugar are tax exempt. Because the beverage tax discriminates against US products, it is contrary to WTO rules

the world trade organization (WTO)

-WTO established in 1994 after years of multi-lateral conventions (since WWII) *aimed at lowering trade barriers* -came after GATT (general agreement on tariffs and trade) talks -excpects nations to avoid unilateral trade wars and rely on GATT to dispute settlement procedures to avert conflit -WTO: over 157 member including the US situated in Switzerland -WTO: administers GATT goals of lowering trade barriers incrementally

diamond v. Chakrabarty (SCOTUS 1980)

-Yes. Inventor Chakrabarty won. -These organisms eat oil- helps prevent pollution & cleans up oil spills -Court: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent ..." -Dissent: Majority too broadly construed statute (Sec. 101) in calling a new kind of living organism, a composition of matter. -Allow Congress to do this.

multinationals characteristics

-account for 1/3 of world trade and employ 77 million workers, 80% of world industrial production. -proponents: create jobs, wealth, spawn technology, improve quality of life -critics: corporate subversion of national interests, corruption control over gov't, pollution, destruction of natural resources, "sweatshops", in developing countries

selected and important federal exceptions to employment at will: *uniformed services employment and reemployment rights act (1994)* (USERRA)

-all employers in interstate commerce -ex. 2003 a bunch of reserves were called in to Iraq war, so employers could temporarily fill that job, but had to give it back to the vet once he came back (unless it was more than 5 years)

arbitration- the favored route to resolving conflict internationally

-american courts and international arbitration -in Scherk v. Alberto-Culver (US supreme ct. 1974) -Alberto-Culver: signed contract, should there be a dispute, will be decided by arbitration -later: Alberto-Culver discovered Scherk, a German, sold trademarks-sued him in American federal court -US supreme court: ruled arbitration clause should be enforced

government workers

-among 30% who aren't employees at will -try to get away from patronage- each term someone would come into office, every 4 years, they would fire and hire all new gov't workers. -experience is good, so that is why gov't workers are not at will

civil rates act of 1991 also applies extraterritorially (being exempted from the jurisdiction of local law)

-applies only to american citizens overseas, not to nationals -exception: if the job violates host country's laws: ex. woman truck driver in Saudi Arabia

foreign direct investment (FDI)

-as a business increases its level of international trade, it may find that creation of a foreign subsidiary is necessary. -US: 1st in world in foreign direct investment (nearly $3 trillion) -FDI- best penetration into country, but greater risks -advantages: avoid quotas, tariffs, currency fluctuations, better service/spare parts, quicker adaptation to local tastes/trends -really easy to be globalized now -quotas, tariffs are the lowest ever now -risks: uncontrollable- political (nationalization, changes in gov't policies, etc.) -you don't know who is going to be in power and change. Russia is a good example. -Worst thing that could happen to you overseas is being nationalized. They literally take your company away from you and you lose everything. Not likely nowadays.

foreign corrupt practices act (FCPA)

-business with principle place of business in the US- bound by FCP act 1977 -prohibits bribery, calls for accounting controls -violators: Any company trading on a US stock exchange: Walmart, Avon products, KBR, etc. -prohibits "the making, authorizing, or promising payments or gifts of money of anything of value to governments (or NGO officials-e.g. Olympics, IMF) with the intent to corrupt for the purpose of obtaining or retaining business for or with, or directing business."

Office of federal contract compliance programs (OFCCP)

-can terminate federal contracts with employers who do not comply with its guidelines and can make them ineligible for any future federal business

legal justification for IP: Article 1, Sec. 8

-congress was granted the enumerated power (dish out power to 3 branches of congress) to issue IP rights for the "progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries"

patent examiner

-considers the application and there is usually a great deal of communication between the examiner and the applicant over the adequacy of the application's explanations, the scope of the proposed patent, and whether the invention even qualifies for a patent

3. implied covenant of good faith & fair dealing (11 states)

-contract creating a long relationship of trust (often analogized to insurance contract) -employer conduct that "shocks the conscience" (tort-like in nature) -ex. trumping up shocking charges to fire at will employee with company for long period of time

In 1986 the Supreme Court made hostile environment sexual harassment the law of the land in Meritor Bank v. Vinson.

-court adopted elements of Henson case from 11th circuit -court admitted would be difficult in particular to prove what affects "terms, conditions and privileges" or employment -Supreme Court recognized sexual harassment as a violation of Civil Rights Act of 1964 Title VII.

County of Washington v. Gunther

-court decided plaintiffs can use evidence such as pay differences to help prove intentional sex discrimination -court ruled Washington discriminated against secretaries by paying them less than maintenance and other personnel

Horace Wood-19th Century jurist (Wood's Rule)

-created rule to confirm to rapid industrialization -prior to Wood's rule: agricultural workers had 1 year contracts -justification: symmetrical rule- worker could leave at any time; employer could terminate worker at any time -cannot make anyone work -"Organizational equivalent to capital punishment" : Termination: Loss of income, pension, seniority, benefits, identity with one's work etc.

WTO: a country admitted receives "most favorable nation" (MFN) status

-creates a level/predictable playing field -MFN country will be treated same as all other MFN nations for tariffs -ex. if US charges 2% tariff on importation of sugar cane, then all MFN's will be changed that amount

digital millennium copyright act of 1998

-criminalizes software infringement (copying, sales, etc.) -ISP's generally exempt when users violate act

international dispute resolution

-cultural attitudes toward disputes -old American advantage "hope for the best, but plan for the worst" -assume something is going to go bad, so Americans are very proactive -Americans see "win or lose" in business; view negotiation as a means to an end to close the deal -Asians: seek amicable settlements -many cultures: negotiations as time to build relationships/trust

subject matter since Chakrabarty:

-debate on subject matter: -those supporting not patenting certain processes (for public good, harms public/ stifles others from activities) VS. patents for private enrichment (to encourage innovation, investment/rewards) ex. Challenges to those seeking patents: Naturally occurring biological material, genetic sequences, stem cells, computer programs, business methods

WTO: dispute settlement body (DSB)

-decides through arbitration all tariff disputes -makes decisions on trade disputes between governments that are adjudicated by the Organization -ex. US alleges Japan uses overly harsh inspection standards for importation of American beef -Japan countries: needs the inspections; they are reasonable -dispute: taken to WTO for arbitration -if Japan in violation- WTO imposed trade sanctions

limitations fair use exception

-defense of infringement (excuse liability) -allows the legal, unlicensed citation or incorporation of copyrighted material in another author's work -.ex. Copying commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving, scholarship.

Spector v. Norwegian Cruise Lines (2005)

-determined that the Americans with Disabilities Act applies to foreign cruise ships in American waters -cruise industry is one of the biggest growing industries- -none have American flags on them- Why? They have labor laws that are un-intrusive and don't have to worry about laws that America does. -usually Bahamas flag -once they're in port they have to adhere to physical requirements of the port, however their labors are only subject to the law they fly

methods of transacting international business (3)

-direct foreign sales -licensing and franchising agreements -direct foreign investment

European union

-economic and political partnership among 28 democratic European countries

employer liability for sexual harassment

-employer (corporation, LLC)- not a single person -statue says employer is the harasser, so you sue the corporation and then you sue the actual employee and this is good for the victims because it adds to the damages -Note: Actual harasser is not liable under Title VII, but can be sued personally e.g.: battery under state tort law

doctrine of sex-plus

-employer cannot impose on one sex constraints or requirements that it does not impose on the other sex- ex. airline rules for flight attendants -think of men and women as similar -ex. One of first places where this was applied was airline flight attendants. Before all attendants were attractive women because business men were most important flyers. So, some men applied to be a flight attendant and they said no it would undermine the business of travel, but they had to give in and hire men. But, they just hired men and didn't have rules for appearance lie they had for women. So, women sued airlines because it wasn't fair they had all these appearance rules.

employment eligibility verifcation

-employer is required to examine the employment eligibility and identify documents an employee presents to determine whether the documents reasonably appear to be "genuine" -acceptable documents that establish both identity and employment authorization include: -passport, permanent resident card or alien registration receipt card, foreign passport, employment authorization document *end of ch. 21 employment law*

pregnancy discrimination act

-employers can no longer discriminate against women workers who become pregnant or give birth -employers with health or disability plans must cover pregnancy, childbirth, and related medical conditions in the same manner as other conditions are covered

international monetary fund (IMF)

-encourages international trade by maintaing foreign exchange rates and works closely with commercial banks to promote orderly exchange policies with members -fosters international trade through currency stability *(cooperative institution)*

injunction (equitable)

-enjoin party from using TS or telling people about it -often former employee, can be another company or hacker -former employee cannot work for party it's revealing TS

Civil rights act created the EEOC

-equal employment opportunity commission -primary responsibility of enforcing the provisions of the act -composed of 5 members not more than 3 of whom may be members of the same political party -serve a 5 year term -imposes record keeping requirements on business -did not intend to preempt states' fair employment laws, so where state agencies begin discrimination proceedings, the EEOC must wait 60 days before it starts action -an employee must file charges of illegal discrimination with the EEOC within 180 days after notice of the unlawful practice

wholly owned subsidiary

-ex. Ford incorporates in Germany under German laws -all the stocks is totally owned by Ford but completely under German laws- much stricter than US -Ford would own all of the subsidiary's stock

contractual workers with an expressed term

-ex. professional athletes, coaches, entertainers and those with in-demand skills -private or public sector -can negotiate and demand a contract for an amount of time and money ex. atheletes

3. public international law: judgements and treaties

-examines relationships between nations and uses rules that are binding on all countries in the international community -if two countries sign treaties recognizing each other's judgements -has effect of *Full Faith and Credit*: have to respect and apply each others laws -becomes part of public international law -treaties create legal reciprocity (better than comity- voluntary cooperation)

2. private international (transnational law)

-examines relationships created by commercial transactions and utilizes international agreements, as well as the laws of nations to resolve business disputes -effect of ones country's laws over another- "conflicts of law" -law of which country governs a transaction, e.g. tort etc? -these laws often in conflict with each other -business managers are primarily concerned with private international law issues

IP and competition: exclusivity

-exclusivity (e.g. monopoly) creates incentives -can charge higher prices, create branding advantages- get rich! -without advantage: would not take risk- time, investment (research & development- RD) -

association for molecular pathology (AMP) v. myriad genetics (SCOTUS 2013)

-facts: myriad genetics owns number of patents that cover DNA for breast cancer genes (BRCA) -DNA is isolated to identify mutated sequences in DNA- useful for testing for cancer/drug development -AMP/ACLU challenge: gene patents: products of nature, longstanding acceptance by courts -SCOTUS: isolated DNA is product of nature so Myriad genetics loses- if its natural you can't patent it -BUT: modified DNA is patentable Naturally occurring DNA sequences, even when isolated from the body, cannot be patented, but artificially created DNA is patent eligible because it is not naturally occurring.

Bilski v. Kappos (SCOTUS 2010) important subject matter case- trend towards public goods

-facts: patent claim related to interaction of buyers/sellers of commodities in energy market/hedging against risk -SCOTUS: process involves mental steps that do not transform an abstract idea (hedging etc.) so not patentable

Feist v. rural telephone (SCOTUS 1991)

-facts: rural telephone created white pages based on local subscribers -Feist wanted rural's info to create regional directories -was a decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright. ... Rural sued for copyright infringement. -rural did not arrange facts in a copyrightable way by only putting them in alphabetical order (not original enough)

ownership of trademark-federal

-federal: governed by Lanham act -acquired by first use -US patent and trademark office (PTO) -proposals put in official gazette- existing mark owners may object, hearing is held to resolve challenges -accepted marks- in principal register -creates nation-wide preemption & presumption of first use (foreign protection if under treaty)

patent

-firmly associated with an inventive act, and conveys a right to exclude others from making, using, selling, or importing the covered invention

must be renewed

-first renewal in 5 years after registration. -therefore every 10 years from registration period (grace period exists)

obviousness

-flexible standard for obviousness: would one of ordinary skill in the art find the invention obvious when filed?

expansion

-foreign company starts or greatly expands existing domestic company -"greenfield" investment -ex. Fiat acquisition of Chrysler- expansion -ex. Hyundai- major plant in Poland -developing countries: offer tax-breaks, subsidies, etc.

unionized workers (labor contract)

-gets protection and can only be fired for just cause -person firing has to prove why they are being fired -if dispute, it can't be solved, it goes to labor arbitration

copyright

-give those who have this property a monopoly over the right to exclude others from copying and marketing for a limited period of time -copyright deals only with original expression rather than invention

copyright law and 3 criteria

-grans property in certain creative expressions that keeps others from reproducing it without the owner's permission -original expression of an idea or facts -for copyright protection to occur: 1. must be original 2. must be fixed a tangible medium of expression like a book, canvas, disk, hard drive 3. show some creative expression

alien tort statute (alien tort claims act) 1789

-grants jurisdiction to US federal district courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the US" -issue: can an American or foreigner sue in a federal court for a tort committed in a foreign country that violates law of nations or a treaty with US? -yes, but important issue is what is "law of nations?"

implied covenant of good faith & fair dealing Ex. Ponsock case in Nevada

-guy working at K-mart for about 10 years. He was a forklift worker. -they wanted to fire him because he would vest in a pension after 10 years (works for x amount of years, the employer will put an equivalent amount of money in your investment fund and you will own their contribution) -they spied on him to try and find something he screwed up on, but couldn't find anything -found a rust spot on his forklift, so he went and found some sand paper and primer and fixed it -they fired him for stealing company property and defacing company property -he went and sued them and won

occupational safety and health administration (OSHA)

-has jurisdiction over complaints about hazardous conditions in the workplace -employers are required to comply with OSHA standards to furnish a workplace free from recognized hazards -employees can request an OSHA inspection if they believe that there are unsafe and unhealthful conditions in the workpalce

outcome of international court at the Hague (the Netherlands)

-headlines (July 2016) Beijing rejects tribunal's ruling in South China Sea case -one day after a UN tribunal ruled overwhelmingly against Chinese claims to huge swaths of the strategically important waterway, Beijing rebuffed the verdict calling ig: "a piece of paper that is destined to come to naught" -action brought by govt. of Philippines

sexual harassment- form of sex-plus

-imposes on one sex unwanted burdens & constraints that other sex does not have to endure -quid pro quo cases- victim suffers/potentially suffers economic loss based on sexual coercion (Barnes v. Costle, 1977) -hostile environment cases- based on one sex, usually women, enduring unwanted sexually hostile workplace imposed on them by a man or group of men (Meritor Bank v. Vinson, 1986) -can also be between same-sex employees (Oncale v. Sundowner, 1998) (taking a shower and 2 large men harassed him)

misappropriation exception

-independent creation or reverse engineering -unless a duty exists to keep secrete by employee etc.- must be by person independent of TS holder -management decision: if secret can be discovered, patent might be better; if not TS is better- perpetual

export management companies (EMC's)

-independent firms- assume export-related duties for manufacturer, producer, or other exporters -ex. EMC hired by a US company to perform specialized function, especially marketing -often located in the US, act as agent for US company overseas -companies that cannot afford own in-house specialists -narrower in role than ETC's- agent for salary vs. share in profit/risk- usually don't engage in risks

Ex. ETC's (export trading company)

-intermediaries specialize- storing, shipping, insuring billing etc. for client- takes cut profits/risk -can represent several manufacturers in foreign countries- antitrust exemption

private trade organizations (2)

-international monetary fund (IMF) -World Bank founded together in 1944 -don't want to invade our trading partner (ex. we wouldn't want to invade China)

issues and ruling of LSU v. Smack

-issue 1: was LSU's color scheme protected? It was protected as soon as they use it under state law. Gained secondary meaning through time: 100 years of color USE. $10 million in sales, why Smack appropriated colors (there's demand for it) -ruling: did smack's use of color create confusion? yes -ruling:

In Re Terrorist Attacks on Sep. 11 2001

-issue: can victims of the 9/11 terror attacks sue Kingdom of Saudi Arabia for alleged complicity in funding of al-Qaeda? -Sept. 29, 2015-Dismissed by Federal District Judge as not commercial -remember-If you sue another government and take them through American court, they might turn around and sue us, or treat our people traveling in theirs poorly

John v. Doe v. Holy See

-issue: does FSIA allow the US citizens to sue Holy See (vatican) for acts of US catholic clergy? -involving the sovereign immunity status of the Holy See in relation to the Catholic sexual abuse scandal in the United States. ... U.S. District Court Judge Michael Mosman has ruled that the Holy See cannot be held liable because there was no relationship of employment in the case. -US district court; no, no relationship of direct employment -dismissed in 2013

FCPA also prohibits corrupt payments through intermediaries:

-it is unlawful to make a payment to a third party, while knowing that all or a portion of the payment will go to a foreign official

if a patent is invalid

-it renders it invalid against all future defendants, essentially eliminating it

property rights provide exclusivity that can :

-lead to market advantages such as the ability to charge premium prices or utilize customer recognition -possibility of economic return on investment encourages firms and individuals to create more info than they otherwise would -information is disclosed to the public in exchange for exclusive rights, which supports, follow-on research efforts

public international law- effects on business

-legal problems: business activities do not fit neatly within national boundaries -international environmental problems -marketing practices of international corporations -oil exploration under arctic close to north pole -nuclear energy

public international law (PIL) history

-long history: rights of nations determined by war & diplomacy -from war/diplomacy: evolved body of widely recognized legal principles/customs -PIL: not enforceable unless parties choose to be bound -risk if ignored: military intervention -principles of civilized nations: Western, free-market oriented

4. harassment must affect the "terms, conditions or privileges" of the alleged victims employment

-look at how sever and persistent (e.g. dirty jokes, porn, physical touching, leering, etc.)- No one event would likely ever be sufficient to be harassment. -look at the "totality of the circumstances"- can include the behavior and dress of the alleged victim -harassment: verbal v. physical, how many participating, how many victims -ex. -Vincent developed a relationship with her supervisor & she broke it off -supervisor continued to approach her after they broke up -so she sued the bank and they applied the 4 elements

economic espionage act (EEA)

-makes it a crime to steal (intentionally misappropriate) trade secrets and provides for fines and up to 10 years imprisonment or individuals and up to a $5 million fine for organizations

business exploitation on ocean floor

-manganese nodules- full of nickel, manganese, and other valuable strategic elements -who owns these in the deep ocean? this will take international cooperation -united nations convention on the law of the sea (UNCLOS)- US hasn't signed this

novelty test

-met when no single piece of prior art meets all of the elements in inventions claim -under patent law, even if an invention is otherwise new, it fails the novelty test if it has been described in a publication, sold, or put to public use more than one year before a patent application on it is filed

fair labor standards act (FLSA)- 1938

-minimum wage (now $7.25/hour) exceptions for "tip" employees, disabled, full time students, youth under 20 -overtime pay (over 40 hrs.- time and 1/2) -classification issue: salaried vs. hourly; employee vs. independent contractor -people would get fired and register for unemployment -established child labor standards -states can regulate but in harmony with federal

Public international law and treaties

-much public international law derives from treaties (official, not customary PIL) -treaties established: UN conventions (CISG) and trade agreements like NAFTA and GATT

WARN (worker adjustment & retraining notification ACT) 1989

-must give workers 60 day notice prior to layoffs -must be given in writing to employees or their bargaining representatives, the state's dislocated worker unit, and the elected chief officer of the local gov't impacted -WARN notice must be provided even if the number in the preceding paragrpah are not satisifed if there are two or more plant closings or ass lay-offs in a 90 day period that when taken together satisfy the threshold members -a large layoff- factory -ex. carrier is giving 3 years notice and giving them training

IP and competition: counterargument

-must provide reasonable limits (consumer protection)- ex. full price of drugs vs. buying generics (time limits) -new competition is eliminated- ex. new drug maker could not afford entry into market or would be bought off by monopolist

traditionally excluded categories: cannot patent:

-natural phenomenon -lows of nature and mathematical algorithms -abstract ideas

court decision on Chakrabarty

-naturally occurring sequences of DNA isolated from the human body are not patent eligible, however, non-naturally occurring or manufactured DNA sequences can be patented -affects existing patent claims covering natural DNA- they are now invalid -reward invention, not investment per se

utility patent

-new, non obvious, useful processes, machines, compositions of matter or improvements thereof -term: 20 years from filing date

design patent

-new, original and ornamental design for an article of manufacture -apply to the appearance of an article of manufacture, unrelated to its function -cover subject matter similar to copyrights -term: 14 years from issue date

plant patent

-new, variety of plant that can be reproduced asexually -however, many inventions related to plants may be protected as utility patents -term: 20 years from filing date

patent trolls

-non-producing patent owners do not contribute as much to the innovation environment compared to the costs imposed by their enforcement -term is sometimes used by those to initiate bad faith infringement suits for a settlement -patent litigation is very expensive, possible high damages (so 97% settled) -multiple parties are sued (i.e. all cell phone makers- enhances chances to collect- settle so aren't the only one left) -trolls often pay only contingency fees (lawyers paid percentage of recovery) -trolls often demand percentage of successful products revenue

blurring

-occurs when firm uses another trademark in a way that blurs the distinctiveness of a famous mark -ex. if a reasonable person would know the company behind "Google lawn service" was different than Google would have a good argument that permitting the lawn service would blur or reduce its trademarks power

how do you get a copyright?

-old law: registration & notice required -all works AFTER 1978: -copyright attaches as soon as work is "fixed in a tangible medium" (book, magazine, website, etc.) federal law -registration with US copyright office not required but recommended -Why? Necessary to maintain infringement action, recover statutory damages and attorneys fees -To have better proof: with certification, in public record -author is the owner -exception: employee produces "works for hire" when done at work -company is the author

copyrightable subject matter

-original expressions: -not ideas or facts -not mathematical formulas -ex. X invents a new mousetrap, copyrights it. X could prevent another from copying a document describing it. Copyright would not prevent others from making, using, or selling the mousetrap-need patent -original: -must be your own (but not necessarily very distinctive) -very low standard to gain copyright

what can by copyrighted?

-originally (1790s): books, maps, charts -expanded to literary works, musical works, pictures, sculptures, movies -important change (1990): architectural works (e.g. building designs, art form owned by architect- not builder)

convention of international sale of goods (CISG)

-outlines standard international practices for the sale of goods -most countries have signed this treaty, so the answers are right there if there is ever a problem

once patent is granted- rights

-patentee can exclude others from: making, using, selling, or importing patented subject matter for 20 years, or 14 years, minus exam time -when exclusion ends- everyone can use it (public domain) -due to expense/lack of business know-how, investors license (a conveyance of rights to a manufacturer to commercially use an inventor's patent in exchange for royalties) -some products have multiple or overlapping rights- creates problems for companies making the product

prof's lectures copyrighted?

-power points are fixed, notes accompanying them are fixed- yes -are students taking notes and copying power points in class violating copyright law? no, see fair use exception -is fixing power points/notes in a booklet and selling them a copyright violation?

principal & agent

-principal interacts with someone for the purpose of obtaining that second party's assistance -the second party is the agent -principals hire agents to do tasks and represent them in transactions

confidentiality agreement (perpetual non disclosure agreement or NDA)

-promise not to reveal trade secretes -difficult burden on employer- protection not presumed -ex. unpublished patent applications, know-how, schema, financial information, verbal representations, customer lists, vendor lists, business practices/strategies -also typically includes a covenant not to compete- lessens impact of trade secrets revelation damaging employer

copyright owners rigts

-right to: reproduce, produce derivative rights (sequels), distribute, public performance, display -copyright term: life of author PLUS 70 years- Sonny Bono copyright extension act 1998 -120 after creation for 95 years from publication for a work created for a company (aka: Mickey mouse extension act) -right to seek civil remedies/criminal actions: injunctions, damage (actual and statutory)- gov't can seek criminal actions

united nations

-sets forth as its primary goal "to save succeeding generations from scourge of war" -authorizes "collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace"

patient protection affordable care act

-signed 2010 -goals: increasing the quality and affordability of health insurance -mandates most americans to purchase health insurance, offering subsidized coverage for qualifying individuals

Treaty of Rome (1957):

-signed by 6 European countries -created original common market -later created European Union or EU) -later new treaties- treaty of Maastrich, Treaty of Libson, continue to shape EU

trademarks

-source indicators identifying products/services -creates distinctiveness, recognizing the "real thing" -avoids confusion with other products/services

function information- trade secret rights important laws:

-state law- majority use uniform trade secrets act -federal espionage act (criminal activity) -no filing procedure -perpetual if kept secret

state anti-discrimination laws

-state/local gov't: generally may bestow greater rights to workers than provided under federal law -state/local gov't: generally unconstitutional to take away rights provided to employees under federal law -ex. many state/local have lowered number of workers necessary for anti discrimination laws to apply to less than 15 employees

ownership of trademarks- state law: gaining trademark

-state: acquired by first use-common law of state -user gains a trademark right by simply using a brand name or logo in normal course of commerce -use of TM symbolizes use but doesn't have to exist to have an enforceable trademark -enforceable only in area of business -Subsequent federal registration by a competitor of similar or same mark preempts in area outside where business was conducted only -also can be registered with the state's secretary of state enforceable only in state- no symbol for this registration, Often occurs when registrant is applying to be a business entity: e.g., corporate or limited liability company status.

exclusive remedy rule

-states that an employee's sole remedy against an employer for workplace injury or illness shall be workers' compensation

2. pattern or practice of discrimination

-statistical analysis to discover a general policy of discrimination- infers general intent vs. specific intent -once inference established: plaintiff examines employer's reputation, relative use of protected group members, pay differences, hiring practices, etc. -EEOC v. Mitsubishi (1996), Dukes v. Walmart (2010)

justice against sponsors of terrorism act (JASTA)

-statute passed by congress in sept. 2016- amends FSIA -Allows civil lawsuits in U.S. federal courts (subject matter jurisdiction) against any sovereign nations that "knowingly or recklessly contribute material support or resources, directly or indirectly, to persons or organizations that pose a significant risk of committing acts of terrorism..." -will be used by 9/11 families to sue Saudi Arabia for possible collusion with terrorists -implications? Saudis say they will liquidate billions of $ to take it out of US and reach of litigants

nature of copyrights

-to gain copyright- federal law -promote creative works -issue: protects creativity; property protection can collide with free speech protections -must be balance because of important demand for original works -reason for "fair use" exception

article 38 of statute of international court justice (ICJ)

-traditional place for ascertaining what is public international law -however, decisions made by ICJ, the world court, do not create binding rules of law or precedent in future cases -applies: international conventions establishing rules expressly recognized by contesting states

patent "trolls"- the problem with overlapping rights

-trolls (also called patent assertion entity) are usually patent holders or buyers of patents who do not sell anything, but merely assert rights in order to collect licensing fees (they invent, own, but don't produce) -wait to attack those who use them, then attack from a leveraged position of power (royalties decided after the fact)

protecting functional property- utility patents

-useful inventions- solves a problem (distinguish from design patent) -submitted to patent & trademark office (PTO) -long/complex process (applications-520,000/year) -assigned to patent examiner (6500 examiners)

FCPA issue grease payments

-usually a much smaller payment opposed to a huge bribe- facilitate -provided to a low-level government official or business person, in order to expedite a business decision, shipment, or other transaction, especially in a country -US companies: allowed to make payments to "facilitate" government officials normal duties -examples: licenses, visas, work orders, police protection, mail pickup, phone service, power, water, loading or unloading cargo, protecting perishable goods, scheduling inspections -recent developments: Obama Justice Department has increased enforcement

patent infringement

-violation of a patentee's rights to exclude from making, selling, using, etc. -damages (triple for willful) -injunction (not automatic, must prove the need to stop infringer) *end ch. 11 patents*

Mayo collaborative services v. Prometheus (SCOTUS 2012) important subject matter case- trend towards public goods

-weighing public good a lot here- if other hospitals want to do this they would have to pay a lot of patents, patients would get billed -facts: patent claim for a 3 step process for administering drugs to increase efficacy/safety -SCOTUS: "adds nothing specific to the law of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field"

risks involved in international trade

-what US laws have "extraterritorial" reach -are property rights enforced?

ex. of US public law- Italian suits

-what goods come in and how much, technology/resource exports, taxation, tariffs -ex. Italian suits- if local suit makers are struggling from all the imported suits, a tariff is placed on them to make them more expensive and in result local suit shops can price their suits higher as well -exporting something high in technology- they might not let you export it -ex. Foreign corrupt practices act (FCPA): outlaws bribing in foreign business transactions

4.international organizations

-what most think is international law 1. governs relationships: 2. between/among countries and international organizations (UN) -through customary/official agreements -avoids applying conflicts of national laws (private international law) 3. war, peace, human rights, and territorial rights

trademark dilution

-where non famous (junior) trademark dilutes famous (senior) trademark of its significance, reputation, and goodwill -do not have to prove "confusion" -2 types: blurring and tarnishment

nature of trademarks- what they can be

-words, numbers, letters -slogans -pictures: ex. Mikey Mouse is trademark to represent Disney -colors, sounds, symbols, and shapes- trade dress, package shapes, decorating motifs- all must be distinctive

Can US citizen sue foreign company in US?

-yes but need "minimum contacts" -ex. if you want to bring guy from Ohio to PA- he committed a tort in PA so that was his minimum contact -ex. you can sue a foreign country if they have presence in the US -Is foreign flagged ship using U.S. ports bound to use ADA, Title III? yes

independent contractors

-you have a contract with them and have to perform that contract -ex. a principal may hire an independent contractor to perform a task -principals do not control independent contractors and independent contractors generally work for more than one principal

property

1. -ability to exclude form others- something of value -tangible: land, personal property- trespass (to land, chattel), conversion (stealing), criminal enforcement -intangible: patents, copyrights, trade secrets- misappropriation, infringement etc., criminal enforcement 2. exclusion of others must be reasonable: -ex. land vs. air rights -ex. copyrights vs. fair use exceptions -When you own rights of a property you used to have all the way from the ground to the sky. Airplanes would fly through peoples land and get sued for "trespassing". So they started creating reasonable limits. Now there's a certain amount of feet they can fly above you.

information of a trade secret can be protected if:

1. TS's value: not being known or ascertainable by normal means 2. owner: must make reasonable efforts to maintain its secrecy

1. National Law has 2 parts

1. US: A state's (e.g. PA) private/public law-contract or tort law 2. US public law -all these laws and you have to figure out which one to apply

to obtain a patent in the case of a utility patent inventor must

1. explain how to make/use invention (usefulness) 2. show invention is different from prior inventions or knowledge (novel, non-obvious, different from "prior art") 3. precisely detail subject matter that is invention (aka "claims", kind of subject matter that is patentable)

FCPA has two principle requirements:

1. financial records and accounts must be kept "which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets" of the business 2. the business must "devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances"

intellectual property economic reasons (2)

1. gives you an incentive to create or invest 2. gives others incentive to distribute -ex. a franchise- a brand everyone can recognize. Ex. McDonalds- you can license out parts of the brand so people can make money

International business law- 2 parts

1. nations must *trade* to acquire wealth 2. a nation or region must have *comparative advantage* to trade -ex. physical (climate), infrastructure, education/technological, cultural, political/legal system, economic system/diversity of economy, world view, relative location, etc.

3 GATT (general agreement on tariffs and trade) principles

1. nondiscrimination 2. national treatment (countries not favoring their domestic products over imported products) 3. elimination of trade barriers

Microsoft unemployment example

Microsoft hired around 1000 "computer nerds", they didn't control them much they just did their own thing. -They were calling them independent contractors. -Later some of them got fired, and they had to pay a lot of money in unemployment.

employment at will doctrine definition

unless employees contracted for a definite period of employment, employers were able to discharge them without cause at any time