Did you know that the test that determines whether an object infringes a design patent is the observer test? That's right! But what is even more unique is that this test has withstood the test of time in an area of law that is generally associated with innovation and ever changing standards of review. The observer test has been around for close to 150 years! It relies on an ordinary observer to differentiate between the infringing design and the patented design. An who is this ordinary observer? well to some extent it…

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 September 28, 2016 (updated November 18, 2020) 

The terms "temporary stay", "residence" and "domicile" refer to the same thing, namely, a person's physical presence at a certain location. The length of one's stay, as well as the intent, determines whether something is a stay, a residence or domicile. Applicability of a particular term has important consequences. For example, a landlord owes a duty to an occupant who is a resident, but not to a visitor Yaniveth R. v LTD Realty Co., 27 N.Y.3d 186 (N.Y. 2016). Another example, is an application for state Medicaid or Welfare benefits must be…

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 September 26, 2016 (updated November 18, 2020) 

Question: Can a Trustee bring a lawsuit against a party that dealt with the Trust, and who subsequently breached its tract with the trust. Answer: No, the trustee has no contractual relationships with the third party. Sentinel Trust Co. v. Universal Bonding Ins. Co., 316 F.3d 213 (3d Cir. N.J. 2003) In this case, a Trust had an agreement with a 3rd party. This 3rd party breached the agreement, thus causing the trust to incur a financial loss. As a result of this loss, the Trustee was removed, never got paid its…

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 September 23, 2016 (updated November 18, 2020) 

Basic Legal Concept:  Under Section 2(d) of the Lanham Act, the Patent and Trademark Office (PTO) may refuse to register a trademark that is so similar to a registered mark as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or to cause mistake, or to deceive. Whether a likelihood of confusion exists between an applied-for mark and a prior mark is determined on a case-by-case basis applying the thirteen non-exclusive factors set forth in DuPont. Not all of the DuPont factors are relevant to every case, and only factors of significance to the…

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 September 19, 2016 (updated November 18, 2020) 

Question:  If an employee comes up with an invention while working for the employer, or while employee’s research giving rise to the invention was funded by employer, who owns the patent for the invention? Answer: The inventor of course! Furthermore, absent an agreement to assign rights to an invention, the invention belongs to the inventor not his/her employer. The employer is only entitled to a non-exclusive license to use the invention “shop license”. United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).

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 September 16, 2016 (updated November 18, 2020)