California Renters – Can’t Pay Rent Due to COVID-19 Pandemic?

© Frederic M. Douglas, 2020. All Rights Reserved

The public response to the COVID-19 Pandemic requires non-essential places of business to close or at least severely curtail their operations. Millions across the U.S. are now unemployed or under-employed. Recognizing the financial situation of many renters in California, Governor Newsom issued an executive order on March 27, 2020 to impose a statewide moratorium on evictions.
You are supposed to stay home, but without income, how are you supposed to pay your rent?

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If you cannot pay your usual rent, the good news is that you cannot be evicted for now for not being able to pay. The reality remains that you will have to pay that rent later, so no, you are not getting free rent.
You have to follow the rules of the Governor’s executive order to benefit from avoiding eviction. You must notify the landlord in writing no later than seven days after the rent is due that you cannot pay the total amount due. As your landlord is permitted to give you a three-day notice to pay rent or quit as soon as you miss the usual rent payment on the first of the month, it is better for you to provide that written notice before the due date.
The Governor’s order provides some examples of situations that qualify as not being able to pay due to COVID-19. If you got sick with the virus or had to stay home to care for someone who has the virus, such that you could not work, you should qualify. If you were had a lay-off, lost hours, or otherwise lost income from the COVID-19 situation, you should qualify. If you had to miss work because your child’s school was closed due to COVID-19, you also should qualify.
The eviction moratorium requires you to pay what amount of the rent you can afford now. You must keep proof of your qualifications for the eviction moratorium, such as a notice of job loss, payroll check stubs, bank statements, medical bills, or other documents to show that you cannot pay the full amount of rent. You must give those documents to the landlord when you end up paying the back rent.
I am providing a sample form for you to use to provide written notice to your landlord. https://www.dropbox.com/sh/zpjctdvclpy5z1m/AABWRo4NiR5HZNLDJ_qg-EQBa?dl=0

Make sure to keep your own copy of the letter that you send. Send a copy of the Governor’s order with the notice. https://www.dropbox.com/sh/zpjctdvclpy5z1m/AABWRo4NiR5HZNLDJ_qg-EQBa?dl=0

DISCLAIMER
The author of this article and the accompanying form is providing these materials for informational purposes only and are intended to be used as a guide before consultation with an attorney familiar with your specific legal situation. The author of the article and form is not providing legal advice here and this form is not a substitute for the advice of an attorney. If you need legal advice, seek the services of a local, competent, available attorney.

      Frederic M. Douglas is a solo practitioner specializing in litigation involving intellectual property (patents, trademarks, trade secrets, copyright, and more). Mr. Douglas has been registered with the U.S. Patent and Trademark Office for over 18 years. Before college, he drove a taxi for eight years in Ventura County California.

Tips For Patentability Searching

Tips for Patentability Searching

By Frederic M. Douglas

© 2012, Frederic M. Douglas, All Rights Reserved.

Persons new to filing patent applications often have basic questions regarding patent searches. Should an inventor do a patent search? Is a patent search required? Does it matter when a patent search is done? What happens when nothing is found? What should be done when the inventor finds out that the invention is not patentable?

Patent searches are optional. There is no requirement in the U.S. that an inventor performs a patentability search before filing a patent application. Some rookie inventors are confused by the requirement that IF a search is done and relevant prior art is discovered, that relevant prior art should usually be disclosed to the patent examiner or the inventor may be accused of fraud. Note that still, a prior art search is not required, just passing on known relevant prior art from an optional search is required.

Some inventors take the position that they do not want a search so that they don’t find out any bad news. If they find out no bad news, there is nothing withheld from the patent office, as the inventor never had the bad news to reveal. Also, waiting for patent search results and later making needed invention changes, can delay a race to the patent office. Certainly, when the U.S. Patent Office switches to a first-to-file system on March 16, 2013, promptly filing patent applications will become more important.

However, the patent office does do its own patentability searches. So, at some point the inventor may find out the bad news that prior art bars getting a patent issued. By the time that the patent examiner conveys the bad news, the inventor has spent a considerable amount to prepare and file the patent application, waited several years for the first notice from the examiner, and invested funds on manufacturing and marketing the invention with an expectation of exclusivity. By the time that the inventor finds out that no patent will issue, the original patent application issues, telling the inventor’s competitors how to make and use the invention. Once the competitor finds out that no patent will issue, then they can exploit the technology with impunity without paying one dime.

Certainly, an inventor should consider the patentability search as similar to having a mechanic review a used car before purchase. While the mechanic will not guarantee that the car will not break down, you will surely find out if there are any clear mechanical problems before you commit to buying the car, registering it, and maintaining it throughout its lifetime. In the same way, an inventor should want to know if there are any clear defects in the idea of patenting an invention before committing to filing a patent application (registering) and paying thousands of dollars in maintenance fees to maintain the life of the issued patent.

Just like the reviewing mechanic cannot guarantee that the car will last forever, a patent searcher cannot guarantee that no prior art exists that could block getting a patent. The mechanic looks for bad news that can be discovered without taking every bolt and washer apart on the car. The patent searcher can look for prior art, in the searcher’s native language, on computer databases throughout the world. However, the patent searcher is not likely to be aware of a single copy of a Swahili-language doctoral thesis sitting on a library shelf in Tajikistan. Thus, care should be taken to have a very good searcher involved with an understanding that searching must reach as far as feasible but at some point must reach a limit.

Rookie inventors sometimes do their own patent search and claim that they found “nothing like it” regarding their invention. The reality that they are missing is that their search was not competent. While there is no way to find every single piece of prior art throughout the universe, there also is no way to search adequately and not find at least some things that are related to the invention.

Another issue for novice inventors is finding barring prior art after performing an adequate search before filing a patent application. The fact is that a patent searcher can only find what is publicly available. If a search is performed on February 1st and the patent application is filed on April 30th, the patent office examiner may come up with prior art that only published on February 2nd.

Unfortunately, it is rather common that a patentability search comes up with a ton of prior art such that there is no way to get a patent for the invention. The good news is that the bad news is discovered before spending time and money on preparing and filing the patent invention that would have been rejected promptly. The take home message for the inventor losing out on a patent search is that the inventor now has a thorough review of the prior art, which should be helpful to learn further aspects that can be incorporated into improving the invention. The inventor can now brainstorm with a focus on significant novel aspects of the invention above the prior art.

After further consideration of the unforeseen aspects of the prior art, the inventor should focus on noting what aspects are missing from the prior art so that the invention can contain several inventive steps above the general state of the prior art. To put it more bluntly, the inventor needs to get back to the drawing board and put more meat onto the present skeleton. The discovered pieces of prior art will help the inventor make progress.

Can You Rescind Your Mortgage Under Federal Law?

Can You Rescind Your Mortgage Under Federal Law?

By Frederic M. Douglas

© 2012, Frederic M. Douglas, All Rights Reserved.

Often homeowners look for technicalities in their lending documents to seek to defend themselves against foreclosure. Often, such efforts are unsuccessful, in part, because of the complicated procedures and the uneven playing field when fighting a bank. Still, a little knowledge of the Truth In Lending Act can help avoid mistakes and provide a better understanding of a homeowner’s rights.

The Truth In Lending Act (TILA) is a federal consumer protection statute designed to provide informed use of credit and to make sure that consumers are clear on the loan terms.  For example, the TILA requires that the original lender for the home make certain disclosures. These disclosures include informing the homebuyer of a three-day right to cancel the loan agreement. If the lender fails to make the proper disclosure, the lender may have violated the TILA.

TILA allows rescission (cancellation) of predatory loans in some situations. For any reason, the homebuyer can cancel the loan agreement up to three days after signing. If the lender fails to provide the required disclosures at the time of signing, then the homeowner may rescind the agreement up to three years after signing. Filing bankruptcy may extend the three-year rescission deadline.

The homeowner must formally provide the lender written notice of an intent to rescind the loan. However, the notice does not work to automatically rescind your loan agreement. If the bank does not rescind the agreement as requested (which is very likely), the homeowner still must sue the bank to get the agreement rescinded by a court. Such a lawsuit must also be filed within three years from the document signing date. Thus, one cannot expect to send the written notice to the bank and sue the bank on the last day of the three-year period.

Another concern is that a suit for money damages for a lender’s violation of TILA must be filed within one year of the violation (e.g., when signing the loan documents).

The Real Estate Settlement Procedures Act (RESPA) is another federal law to regulate lending. RESPA is designed to ensure that the borrower participates in fair settlement proceedings through early disclosure of settlement costs. RESPA also acts to prevent “kickbacks” and “illegal referral fees” that increase borrowing costs to the consumer.

Unfortunately, in California resorting to such mortgage consumer protection laws is nearly impossible as California courts usually require a homeowner to pay back the amount borrowed, and almost always at least require payment of all past due amounts to assert your rights in  court. It is little surprise that most homeowners that are current in their mortgage payments are not very motivated to assert their rights to tear up the mortgage agreement.

Developing A Discovery Plan For A Patent Infringement Defendant

Frederic M. Douglas On IP Litigation

© Frederic M. Douglas 2010.  All Rights Reserved.

 (A) Review Jury Instructions and Prepare a Proof Rubric

       Determine what the plaintiff needs to prove and what the defendant would like to prove.  Prepare a list of documents and testimony needed to support your case and refute the plaintiff’s case.  From this list, you now know what type of evidence to gather.

 (B) Propound a First Set of Written Discovery Requests

       Ask questions to identify witnesses and to find out what documents exist.   Seek information on inventorship (conception and reduction to practice), prior art, patent prosecution, and persons knowledgeable about these topics.  Propound requests for admission to exclude factual issues for trial.  Propound a global request for documents early, as you undoubtedly will encounter resistance requiring efforts to pry documents from the plaintiff.

 (C) Depose the Patent Prosecutor

       In some jurisdictions, you may encounter resistance on deposing the…

View original post 405 more words

Developing Interrogatories to a Patentee Plaintiff

Frederic M. Douglas On IP Litigation

© Frederic M. Douglas 2010.  All Rights Reserved.

Patent litigation is discovery-intensive.  However, the maximum number of interrogatories propounded is twenty-five unless you get court approval.  So ask efficiently.  Each case is different; there is no routine case.  In that direction, an accused infringer should consider the following topics for propounding interrogatories to a plaintiff patent owner.

(A) Which claims are being asserted?

       Most well-drafted patents contain several claims, each one potentially asserted by the patent owner.  The amount of discovery, expert analysis, and trial presentation is directly affected by the number of claims in dispute.

(B) Provide a claim chart

       Ask for an element-by-element analysis of the plaintiff’s infringement contentions, proposed claim construction and the intrinsic and extrinsic evidence supporting the proposed claim construction.  With this information, you can identify which claim constructions you can agree to, which ones to fight, and which ones you may need…

View original post 254 more words

“US Patent Office Cancels Redskins Trademark”: What Does It Mean?

“US Patent Office Cancels Redskins Trademark”: What Does It Mean?   © Frederic M. Douglas, 2014. All Rights Reserved

Today the news media is abuzz with discussion of the cancellation of the “Redskins trademarks” belonging to a U.S. football team, the Washington Redskins. News anchors are reporting to their audiences statements like, “U.S. Patent Office Cancels Redskins Trademarks” and that the team “cannot have trademarks for its name.” There are comments by “legal analysts” (supposedly knowledgeable about the legal issues discussed) saying that the Redskins “now have been deprived of the ability, really, to use that name in a commercial context.” Such statements can be seen here –

 http://money.cnn.com/video/news/2014/06/18/washington-redskins-trademarks-cancelled.cnnmoney

Despite the comments by television talking heads on the ruling, the fact is that the name “Redskins” has not been taken away from the team. The ruling by the Trademark Trial and Appeal Board (“TTAB”), Blackhorse v. Pro Football, Inc., affected the registration of the team’s trademarks. Five Native Americans brought a petition to the TTAB to cancel six federal registrations for trademarks containing the word “Redskins.” The TTAB found that the petitioners proved by a “preponderance of the evidence” that “Redskins” disparaged Native Americans when used for football. Note, you can still buy red-skinned potatoes. Federal law does not allow registration of trademarks that disparage persons, institutions, beliefs, or national symbols.

One of the registered trademarks.

One of the registered trademarks.

A trademark, like the Redskins’ trademarks, tells you that they are not other football teams, such as the Minnesota Vikings or the Green Bay Packers. The trademark is owned by the team and the team may choose to register a trademark. For example, you may own a house and you should register the deed with the government. If you do not register the deed to your house or your ownership of your car, you will be at a disadvantage. The system is set up so that it is better to be registered. If you do not register, you still own your property, such as a house, car, or a trademark, but you miss out on the benefits of registration.

For trademarks, registration is optional. The benefits of registration include a legal presumption of ownership, blocking imports of counterfeit foreign products, and using the well-known federal registration ® symbol.

So, what did the Redskins lose today when they lost their trademark registrations? They can still sue someone for infringing their trademarks, but anyone they sue may have additional defenses that would not exist for a registered trademark. So, I do not advise you to run to a screen printer and make a bunch of T-shirts with this logo on them.

The team is not required to change its name and they do not have to stop using the trademarks involved in today’s decision.

The ruling said that although the Redskins’ trademarks are canceled, the Trademark Office records will not show “canceled” until all appeals and other proceedings are exhausted. The Redskins are allowed to appeal today’s cancellation and they have already indicated that they will appeal. The team can take the issue to a federal court to attempt for an independent judge to review the ruling. The Redskins also may consider appealing the decision to a federal appellate court. The team may also choose to pursue trademark registration in individual states or in the District of Columbia, where the state authorities may not see the issues the same way as the TTAB.

So, despite what you may hear from the boob tube, the Redskins did suffer a loss today, but they still own their trademarks and can sue anyone that infringes those trademarks. If the TTAB decision is reversed, then their trademarks will not be taken off the registration list. You can read the TTAB opinion here – http://ttabvue.uspto.gov/ttabvue/v?pno=92046185&pty=CAN&eno=199

Frederic M. Douglas is a solo practitioner specializing in litigation involving intellectual property (patents, trademarks, trade secrets, copyright, and more). Mr. Douglas has been registered with the U.S. Patent and Trademark Office for over 12 years. Before college, he drove a taxi for eight years in Ventura County, California.

Patent Infringement Under the Doctrine of Equivalents

Introduction to Infringement Under the Doctrine of Equivalents

The Doctrine of Equivalents allows infringement to be found in some cases where the elements of the accused device are substantially equivalent to the corresponding elements of the asserted claim. K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1366, 52 USPQ2d 1001 (Fed. Cir. 1999). The Doctrine of Equivalents prevents an accused infringer from avoiding infringement by changing only minor or insubstantial details of a claimed invention while retaining the essential functionality of each of those details. Thus, a device that does not literally infringe a claim may nonetheless infringe under the Doctrine of Equivalents if every limitation in the claim is literally or equivalently present in the accused device or method. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 41 USPQ2d 1865, 1876 (1997). This “all elements” rule of the Doctrine of Equivalents requires that an alleged infringing device have an identical or equivalent element for each limitation contained in the claim of the alleged infringed patent. Loral Fairchild Corp. v. Sony Corp., 50 USPQ2d 1865, 181 F.3d 1313, 1327.

2

Analyze Individual Elements of the Claim

In analyzing a claim under the Doctrine of Equivalents, it is fundamental that the text of the claim must be closely followed and each element contained in the claim is deemed material to defining the scope of the alleged infringed patent. Thus the Doctrine of Equivalents must be applied to the individual elements of the claim, not to the patent as a whole. K-2 Corp. v. Salomon S.A., 191 F.3d at 1367. Additionally, any claim placed element limitation must be applied because the Doctrine of Equivalents cannot be used to vitiate the limitation of the element from the claim in its entirety. K-2 Corp. v. Salomon S.A., 191 F.3d at 1367.

3

Forseeable Changes to Claim Limitations

Second, foreseeable changes to claim limitations cannot be reached by the Doctrine of Equivalents. Sage Products, Inc. v. Devon Industries, Inc., 44 USPQ2d 1103, 1107 (Fed. Cir. 1997). In particular, the Federal Circuit has said that “as between the patentee who had a clear opportunity to negotiate broader claims but did not do so, and the public at large, it is the patentee who must bear the costs of its failure to seek protection for this foreseeable alteration of its claimed structure.”

4

Subject Matter Surrender

Third, the Doctrine of Equivalents cannot be used to reach subject matter surrendered by the patent applicant during prosecution of the patent application, “when there was a substantial reason related to patentability for” making that surrender. Warner-Jenkinson, 41 USPQ2d at 1873. This is generally referred to as the “doctrine of prosecution history estoppel.” There is a rebuttable presumption that the Patent Office had a substantial reason related to patentability for including the limiting element added by amendment. Warner-Jenkinson, 41 USPQ2d at 1873.

5

Prior Art Limitations

Fourth, the Doctrine of Equivalents cannot be used to reach a claim scope that could not have been obtained literally during prosecution before the Patent Office due to the existence of prior art. Wilson Sporting Goods Co. v. David Geoffrey & Assoc., 14 USPQ2d 1942, 1948 (Fed. Cir. 1990).

Eight Tips For Inventors Planning To File A Patent Application

Eight Tips For Inventors Planning To File A

Patent Application

© Frederic M. Douglas, 2010. All Rights Reserved

1. When you get your stroke of genius and come up with an idea, WRITE IT DOWN! You need to create a record of your invention before going any further.

You should list:

(a) A full and complete description of your idea;

(b) The date (very important);

(c) Your signature; and

(d) Dates and signatures of at least two people to witness and understand your having invented your invention.

2. Don’t blab about your invention to anyone without a written confidentiality agreement.

3. Keep written records of your progress in developing the invention:

(a) Write down all modifications, experiments, alternatives, and other details.

(b) Keep copies of any emails, notes, letters, text messages or anything documenting discussions with others.

(c) Keep receipts for anything that you buy for your invention, including parts, software,

consultant costs, marketing costs, advertisements, or anything having to do with your invention.

(d) Yes, these records must be in writing and dated.

4. Assess the marketability of your invention.

A suggested rule of thumb to determine whether your invention will sell well is that the total sales will be at least twenty times the cost of inventing and patenting it.

5. Do a patent search:

(a) Is your invention novel?

(b) What is the prior art?

(c) If you are improving on something that has already been patented, is your invention a new physical feature, a combination of prior separate features, or a new use of a prior feature?

(d) If you are improving something that has already been patented, is your invention not

obvious (e.g., does it have an inventive step)?

(e) Does your invention produce a new and unexpected result?

6. Plan on filing your patent application sooner rather than later.

(a) Mostly, there no longer is a one year grace period after public disclosure in U.S. There are some exceptions, but it is too complicated to explain in the limited space here. It is better to operate as if there is no grace period as the U.S. is now on a “first inventor-to-file” system;

(b) Only 6 months in Japan; and

(c) No grace period in Europe.

7. Consider the pros and cons of filing a provisional patent application:

(a) First things first – it is not a “provisional patent.” It is a “provisional patent application.” Do not trust anyone that does not bring up the fact that the provisional patent application never automatically becomes a regular patent application without doing something extra. There is no such thing as a provisional patent. Remember this; the patent office doesn’t even read your provisional application. They just take your money and stamp it with a date;

(b) Pro: Save money and time. Saves your place in line before competitors, while you can work on marketing, developing technology, and deciding whether to expend additional funds. Big companies often file provisional patent applications; and

(c) Con: Why wait? If a competitor files a regular patent application while you have only filed a provisional patent application, then the competitor will probably beat you in getting a patent first. If your place is saved in line, but the other person is ready to buy their ticket now, you’re out of luck. To prepare a quality patent application, you have to spend a great deal of time stressing over many details. If you spend the time to do it right for a provisional, you lose nothing by filing a real application now.

8. Work with an experienced lawyer who is registered with the Patent and Trademark Office and who does patent work for a living.

Frederic M. Douglas is an IP litigator, dedicated to pursuing practical resolution of problems concerning patents, trademarks, copyrights, trade secrets, and other areas of law.
fdouglas@cox.net
(949) 293-0442
http://DouglasPatents.wordpress.com
http://www.linkedin.com/pub/frederic-douglas/17/37b/7a1

Sync Licensing Income for Songwriters

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Songwriters may make money from public performance fees (such as when someone does the song at a concert) and mechanical licenses (such as when a record company pays the publisher for using the song on a CD sold to the public). Another source of income for songwriters can come from synchronization licenses.

The formal name used is “synchronization license fees” but I will use the shorthand term of “sync fees.” When a third party wants to synchronized visual images with a musical composition, the copyright owner may agree to permit the use in exchange for sync fees.

The syncing does not need to involve precise synchronization of the music to video images, such as when lip-syncing. Syncing in this context merely means that the music coincides with the visual images in some way.

Examples of syncing include music videos, songs in movie soundtracks, and instrumental background scores for movies and television.

The music publishers often split sync fees with songwriters on a 50% basis.

The copyright owner has the right to refusal, unlike compulsory mechanical licenses. Thus sync fees depend on how much the copyright owner wants to get and how much the user wants to pay.

Public Performance Fees for Songwriters

By Frederic M. Douglas

© 2012, Frederic M. Douglas, All Rights Reserved.

Songwriting income usually comes from mechanical license fees and public performance fees.

Mechanical License Fees – Mechanical license fees are paid by a record company to the publisher for using the musical composition in recordings sold to the public.

Public Performance Fees – fees paid to the songwriter and the publisher by performance societies for “public performance for a profit.”

Money From Live Performances

                      Regarding music, you can consider “public performances” to be such things as playing the music on the radio or TV, live performances in a club or at a concert, music played during breaks at a sport in event, or even music played in stores.

Except for a few exceptions, the copyright holder controls whether the music gets played. The publisher has the right to grant grand performance rights and small performance rights. Grand performance rights are for performances such as performing the music in an opera or a musical. Small performance rights are basically anything that is not grand performance rights, such as the right to play a song on the radio.

Users of copyrighted music need to obtain a license to publicly perform the music. Without the proper license, there is the possibility of being sued for violating a copyright owner’s performance rights. Section §504 of the 1976 Copyright Act gives the copyright owner or author a choice of recovering:

(1) actual damages and any additional profits of the defendant; or

(2) “statutory damages.”

If one is found to be an “innocent infringer” it can run from $200 to $30,000 per tune. If one is found to be a “willful infringer,” then the statutory damages can run up to $150,000 per tune.

Officially, a publisher may individually contact every radio station, bar, nightclub, hotel, concert venue, and coffee shop to police its copyrights and demand payment of royalties. To address the impracticality involved in directly controlling the public performances of each song, public performing rights organizations (PROs) exist to do the leg work. The performing rights societies in the U.S. are BMI, ASCAP, and SESAC.

Performing Rights Organizations police copyright violations by litigating against alleged copyright violators. In the U.S., PROs can also assert copyright claims before the Library of Congress’s Copyright Royalty Board.

A songwriter signs up with one of the three PROs that the songwriter chooses for collection of performance fees. Like many aspects of the music business, none used to flow more freely than today. Songwriters used to get advances from PROs to induce them to sign on the dotted line. However, advances are not offered anymore.

Usually, the PRO first deducts its cut of the proceeds and then sends one check to the publisher and another check to the songwriter for the performance fees collected.

 

Frederic M. Douglas (fdouglas@cox.net) is a solo practitioner specializing in litigation involving intellectual property (patents, trademarks, trade secrets, copyright, and more).

freddouglas.wordpress.com