Browse below for news, legal insights, information on presentations and events, and other resources from the Weintraub Tobin legal team.
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.
Published: December 18, 2020
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.
Published: December 18, 2020
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.
Published: December 16, 2020
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:
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.
Published: December 16, 2020
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.
Published: December 10, 2020
In 10x Genomics, Inc. v. Celsee, Inc., 1-19-cv-00862 (DDE 2020-12-04, Order) (Colm F. Connolly), the District Court ordered the defendant to produce documents and give testimony about communications between defendant and its new corporate owner concerning the litigation and the provisions in the acquisition agreement that concern the litigation.
Specifically, during the pendency of the litigation, nonparty Bio-Rad Laboratories had acquired 100 percent of Defendant Celsee, Inc.’s stock pursuant to an acquisition agreement. The acquisition agreement had disclosures and provisions related to the litigation. At two depositions, Celsee refused to let witnesses answer questions about documents Celsee disclosed to BioRad and communications it had with Bio-Rad during the negotiations that resulted in the acquisition agreement. The disclosures and communications occurred after Celsee and Bio-Rad had signed a non-binding letter of intent to engage in the acquisition negotiations. Celsee cited the common interest privilege and the attorney work product doctrine as the bases for its refusal to allow the witnesses to answer the questions posed to them.
Published: December 8, 2020
Weintraub Tobin’s 2021 Labor and Employment Virtual Seminar and Training schedule is now available. Click here for a copy of the schedule. If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact: Ramona Carrillo (916) 558-6046.
Published: December 7, 2020
As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.
The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year).
This blog summarizes and highlights some of the key provisions (other than the requirement that employers develop a written “COVID-19 Prevention Program” as discussed in our previous blog).
Published: December 4, 2020
In 2019, Carnival Corporation, the owner of the Carnival Cruise Line, attempted to register KING JAMES in connection with a wide variety of services, including retail store services, various retail goods, cruise-ship services, sports, entertainment, banquet services, beauty and health care, and much more. According to Carnival, it planned to name its newest ship King James, and the application seems to indicate that Carnival also planned to use the KING JAMES mark in connection with various other goods and services onboard the ship. As you can imagine, a prominent figure took issue with Carnival’s plan. That figure was none other than LeBron James, or as those in the sports world have known him for over a decade, King James.
On November 18, 2020, James filed an opposition proceeding before the Trademark Trial and Appeal Board seeking to preclude Carnival’s registration of KING JAMES with respect to “sport bags, gym bags, sports bags, . . . gymnastics and sporting articles . . .”, and “providing sports facilities; organizing of sports competitions and sports events; providing facilities for recreational activities; . . . providing facilities for recreation.” James’s attorneys argued that Carnival’s use of KING JAMES in connection with those goods and services would create a false suggestion of connection with LeBron James due to James’s “reputation as a world-famous basketball player, and [because] the use of ‘King James’ as an identification of LeBron James, [is] so well[-]known[.]” Eight days later, Carnival expressly abandoned its application with prejudice, presumably as a result of a settlement with LeBron James.
Published: December 3, 2020
On December 3, 2020, California announced a new Regional Stay Home Order (“Order”), which will take effect no later than December 5, 2020. The Order divides California into 5 regions, and mandates that once a particular region’s ICU capacity falls below 15%, residents of that region will be ordered to remain home or at their place of residence, except for permitted work, local shopping or other permitted errands, or as otherwise authorized. Specifically, the Order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and physical distancing in all others.
