Mary Siceloff, Author at Weintraub Tobin

More Ways to Overcome Obviousness

Published: December 31, 2020

by Audrey A. Millemann
The IP Law Blog

In my last column, I discussed the first argument that should be made in overcoming an obviousness rejection made by the patent examiner in a patent application. If possible, the applicant should argue that the examiner has failed to establish a prima facie case of obviousness because the examiner did not make the required factual findings. However, there are several additional arguments that may be applicable.

First, in relying on prior art references for the rejection, the examiner cannot pick and choose only one aspect of a prior art reference and exclude other aspects of the reference or ignore the central teaching of the reference. “It is impermissible within the framework of section 103 to pick and choose from any one reference only so much of it as will support a given position, to the exclusion of other parts necessary to the full appreciation of what such reference fairly suggests to one of ordinary skill in the art.” In re Wesslau, 353 F.2d 238 (CCPA 1965).

New Year, New Minimum Wage

Published: December 31, 2020

The Labor & Employment Law Blog

Effective January 1, 2021, California’s minimum wage rate increased to $14.00 per hour (from $13.00) for employers with 26 or more employees and $13.00 per hour (from $12.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2021.

Also note that effective January 1, 2021, the minimum salary threshold for exempt executive, administrative, and professional employees is as follows:

$58,240 per year (or $1,120 per week) for employers of 26 or more employees
$54,080 per year (or $1,040 per week) for employers of 25 or fewer employees

Further, in order to maintain their exempt status, commissioned inside salespeople will need to earn more than $21 per hour (for employers of 26 of more employees) or $19.50 per hour (for employers of 25 or fewer employees).

Election Results – What Could They Mean to You? Tax Updates for a Biden Presidency

Published: December 29, 2020

Trusts & Estates Legal Updates

2020 has been a year to remember for so many reasons: a global pandemic, the race to a vaccine, and an election with record-breaking voter turnout.

President-elect Joe Biden and his running mate Vice President-elect Kamala Harris campaigned on a platform of detailed proposals, including changes to certain areas of tax law. Here are some reforms that we might see during a Biden presidency, and the effects those changes might have:

It’s No “Fair Use” Trying to Parody Dr. Seuss

Published: December 24, 2020

by James Kachmar
The IP Law Blog

One of the last books written by Dr. Seuss, “Oh, The Places You’ll Go” is one of the bestselling books during graduation season each year. The copyright for this book, like all of the works of Dr. Seuss, belongs to Dr. Seuss Enterprises, LP, which issues licenses for the creation of new works under the Dr. Seuss brand. It also works closely to oversee licenses of its work, which it carefully vets. As any parent (and even non-parent) knows, there are tons of Dr. Seuss-licensed works such as toys, video games and books.

In 2016, a group attempted to produce and market a book that would be a “mash up” of Dr. Seuss’ “Oh, The Places” and Star Trek, in which the crew of the USS Enterprise would be sent through the world inhabited by the characters of “Oh, The Places You’ll Go!” A “mash up” is essentially a work that is created by combining “elements from two or more sources,” such as having specific movie characters inhabit a literary world, etc.

The plan was to create a new work called, “Oh The Places You’ll Boldly Go,” a play on words from the old Star Trek series that the crew was “boldly going where no man had gone before.”

Gary Bradus in the Sacramento Business Journal: Kru Owner Sues Business Partners, Accusing Them Of Siphoning Funds To Other Businesses

Published: December 23, 2020

In an article in the Sacramento Business Journal, Felicia Alvarez writes that the owner of popular local sushi restaurant Kru Contemporary Japanese Cuisine has filed a lawsuit against his business partners Madrow-Bazett, Inc. for alleged acts of misconduct and mismanagement of funds. Gary Bradus, who represents Madrow-Bazett, is quoted in the story:

Modrow-Bazett denies the allegations that are in the complaint,” he said. “There have been disagreements regarding the operations of the business.

You can read the full article here.

COVID Relief Bill: PPP-Paid Expenses Are Deductible (Updated 12/28/2020)

Published: December 23, 2020

This past Monday, December 21, a $900 billion pandemic relief bill came out of the U.S. House and Senate. It is called the Consolidated Appropriations Act, 2021. If President Trump signs it, it will become law. Weighing in at 5,593 pages in length, it addresses many areas, including vaccines, education, childcare, jobless benefits, energy, and national security.

Arguing Obviousness with the Patent Examiner

Published: December 18, 2020

by Audrey A. Millemann
The IP Law Blog

Most patent applications are initially rejected on obviousness grounds by the patent examiner in the US Patent and Trademark Office. That means that the examiner believes that the invention, as set forth in the claims in the application, would have been obvious to a person of ordinary skill in the art at the time the application was filed. Usually, the rejection is based on one or more prior art references – documents that are publicly available as of the application’s filing date. In making such a rejection, the examiner states that a person skilled in the art would have found it obvious to modify the teachings of the cited prior art references to achieve the claimed invention.

There are several ways to overcome this type of obviousness rejection. The applicant can argue that the examiner is incorrect in the interpretation of the prior art references, and that those references do not teach or disclose what the examiner contends. The applicant can also argue that, although the examiner may be correct in interpreting the prior art references, the examiner is incorrect in concluding that a person skilled in the art would have found the claimed invention obvious based on those references. Or, the applicant can amend the claims to add an element that is not taught or disclosed in the references.

Mandatory Vaccines in the Workplace? New EEOC Guidance Regarding What Employers Can Do

Published: December 18, 2020

by Ryan E. Abernethy
The Labor & Employment Law Blog

The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.

To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.

Newsom Signs Executive Order Modifying CalOSHA’s Emergency Temporary COVID-19 Regulations

Published: December 16, 2020

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On December 14, 2020, Governor Newsom issued Executive Order N-84-20 which, among other things, modified CalOSHA’s emergency COVID-19 regulations.

Background.

On November 30, 2020, CalOSHA’s emergency temporary regulations concerning COVID-19 prevention in places of employment (ETS) went into effect. Among other requirements, the ETS directed employers to exclude from the workplace for 14 days those employees who have been exposed to COVID-19, reflecting the then-current guidance of the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH) on quarantining after being exposed to COVID-19.

However, on December 14, 2020, the CDPH published updated COVID-19 Quarantine Guidance that sets forth new directives, based upon updated CDC guidelines, for when employees exposed to COVID-19 who are asymptomatic may discontinue quarantine. According to the CDPH’s updated COVID-19 Quarantine Guidance, the following timelines are applicable for quarantine for exposed employees:

All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing.
During critical staffing shortages when there are not enough staff to provide safe patient care, essential critical infrastructure workers in the following categories are not prohibited from returning after Day 7 from the date of last exposure if they have received a negative PCR test result from a specimen collected after Day 5:
- Exposed asymptomatic health care workers; and
- Exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities.
All exposed asymptomatic contacts permitted to reduce the quarantine period to less than 14 days must:
- Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings at all times, maintaining a distance of at least 6 feet from others, and the interventions required below, through Day 14.
- Use surgical face masks at all times during work for those returning after Day 7 and continue to use face coverings when outside the home through Day 14 after last exposure.
- Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.

Relevant Provisions of the Executive Order.

Because the public health recommendations and the requirements of the ETS should be consistent in order to protect public health, the Executive Order suspended (replaced) the quarantine/return to work periods for asymptomatic individuals as specified in the ETS with those contained in the CDPH’s COVID-19 Quarantine Guidance, or any applicable quarantine or isolation period recommended or ordered by a local health officer. However, the Executive Order expressly states that the suspension (replacement) shall not apply where an employer prevents a worker who returns to work earlier than permitted under the ETS from satisfying any of the conditions [upon return] specified by the CDPH or a local health officer.

Finally, the Executive Order directs Cal/OSHA to promptly provide public notice if it changes the quarantine or return to work periods in the emergency COVID-19 regulations.

A copy of the Executive Order can be obtained here.

COVID-19’s Impact on Leasing and Other Transactions

Published: December 16, 2020

Real Estate Legal Updates

By Louis Gonzalez, Jr., Josh Escovedo, and Mark Ellinghouse

California Real Property Journal

This article was first published in Volume 38, No. 4, 2020 of the California Real Property Journal, reprinted by permission.

The COVID-19 pandemic has strongly affected contractual relationships in the real estate industry. This article discusses the most important legal defenses for practitioners to be aware of, summarizes and evaluates the few recent cases considering how these defenses apply in the pandemic, and provides recommendations for limiting exposure during future pandemics.

I. INTRODUCTION

COVID-19 has disrupted commerce and life as we know it. It has resulted in the passing of various ordinances and issuance of executive orders that have shut down businesses, disrupted the labor force, and kept the population at home. This has severely impacted countless businesses, resulting in a massive decrease in revenue and causing numerous businesses to reduce their workforce, if they are even able to stay open. As a consequence, parties have been forced to evaluate the enforceability of their lease agreements, looking for ways to either enforce or excuse performance.

Welcome to the Weintraub Tobin Resources Page