A California judge recently decided that a spouse of someone who is on life support, has the ability to make their end-of-life decisions if they do not have an advance health care directive. The man was in a vegetative state and was without likelihood of recovery.

A Los Angeles Superior Court judge recently found that a wife in California had the legal right to decide whether to end treatment for her husband who was in a permanent vegetative state.

Judge Mary Thornton House decided in her ruling that if an unresponsive individual does not have an Advance Health Care Directive, their spouse can make end-of-life decisions for them. The case concerned Juan Fernando Romero of San Gabriel Valley, California. He was found to be in a persistent vegetative state without any likelihood of recovery after sustaining serious brain damage in 2015.

“This case highlights how important it is for every adult to complete an Advance Health Care Directive. The document allows you to control your health care decisions by appointing an individual to carry out your wishes in case you become incapacitated,” said nationally known estate planning attorney Mark Gilfix. “It provides clarity for your loved ones so they can honor your preferences for end-of-life decisions. Without an Advance Health Care Directive, there is likely to be confusion, guilt and possible legal challenges for family members.”

In 2016 Ana Romero, Juan Fernando Romero’s wife, sought to disconnect his feeding tube and life support. His parents and sister filed a lawsuit against Mrs. Romero to obtain control of his end-of-life decisions from her. In order to keep Mr. Romero on life support, they asked the court to appoint Mr. Romero’s sister as the health care proxy. Mr. Romero died of natural causes at age 37 in June 2017 before the case concluded.

The family’s attorneys argued Mrs. Romero had no legal decision-making authority. The family also said removing Mr. Romero’s life support would go against his religious beliefs.

However, House ruled Mrs. Romero had the authority to make end-of-life decisions on her husband’s behalf as he had previously discussed with her the issue of not prolonging death. The judge dismissed the family’s claims that they had seen Mr. Romero show signs of consciousness. She cited expert testimony from a doctor who concluded his limited brain function meant that he would remain permanently unconscious with no chance of recovery.

“As his spouse, Ana is the presumptive health care surrogate for Juan Fernando in light of his incapacitation,” House wrote. She said his immediate family never spoke about his preferences in case of incapacity.

The judge also noted that there is ambiguity in the state law when it comes to determining who has the legal right to make decisions for an incapacitated individual. However, she ruled that Mrs. Romero fully complied with California’s Health Care Decisions Law as her husband’s surrogate.

Source: https://www.lawfirmnewswire.com/2018/08/california-judge-rules-wife-has-legal-right-to-remove-husbands-life-support/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+LawfirmnewswirecomWillsAndTrustsLaw+%28LawFirmNewswire.com+»+Wills+and+Trusts+Law%29

Let’s say you have a unique idea and think you could turn that idea into a business venture to profit from.  Where do you begin?  How do you make sure someone hasn’t already done the same thing?  How do you make sure no one else steals your ideas?  This all relates to intellectual property.  People can take action to protect their own ideas, designs, and creations.  So if you start a business, one step includes making sure you aren’t taking from someone who did the same thing before you.  If no one has, then the next step would be ensuring your proprietary ideas are safe.  The article below describes how to do so.

How To Keep Your Intellectual Property Safe

Small businesses are started with an idea, and many times with a proprietary one, which means that it is intellectual property and must be protected. To make sure no one takes your intellectual property, it’s important to know how it is defined and its different types. To understand this more thoroughly, key terms are outlined below, the first step in knowing how to protect what is yours.
Definitions associated with intellectual property

According to the American International Property Law Association, intellectual property (IP) is a blanket term for the “fruits of mental labor,” that is, creations of the mind. It is not the idea itself, but rather the expression of that idea to which one can claim exclusive rights.

The AIPLA goes on to explain, “In general,

• Patents protect inventions of tangible things
• Copyrights protect various forms of written and artistic expression
• Trademarks protect a name or symbol that identifies the source of goods or services.”

Constitutional law and intellectual property

In referring to the body of law that protects inventions, designs, and creative works, fundamental interpretations are based on Article 1, Section 8, Clause 8 of the United States Constitution, which grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Notably, trade secret law is determined by each of the 50 states and has no specific term limitation, but rather continues indefinitely until there is public disclosure.
Essential intellectual property documents

Find definitions, templates, samples and suggestions of the following legal documents via academic sources such as law schools, online at sites such as Rocket Lawyer, and publications from sources such as the World Intellectual Property Organization.

Register your work to preserve the right to sue infringers if necessary. For the correct legal protection, determine what documents specifically suit your needs and requirements. An attorney specializing in intellectual property can evaluate which protections are right for you. Some of the resources available are:

Provisional Patent Application – A patent is a document, issued by the federal government, that grants to its owner a legally enforceable right to exclude others from practicing the invention described and claimed in the document.

Non-Disclosure Agreement – A confidentiality agreement is a legal, enforceable contract whereby participants promise not to divulge specific exclusive or sensitive information.

License Agreement – An agreement documenting a relationship whereby intellectual property is agreed to be shared between the licensor and the licensee, under what terms and for how long.

Copyright Notice – A document to publicly provide notice that you claim copyright protection to authorship, including literary, dramatic, musical, artistic, whether published or unpublished. A copyright may also apply to computer programs, databases, advertisements, maps and technical drawings.

Trademark Registration – Conduct a trademark search. Then, legally protect your company name and logo from a claim by others. Your trademark registration may be for words, symbols, sounds, colors, and names that distinguish goods or services.

Cease and Desist Letter – Create a paper trail asserting your ownership and to indicate that you are the victim of copyright or trademark infringement.

This article was written by Laurie Jo Miller Farr for Small Business Pulse

Source: http://boston.cbslocal.com/2018/01/30/keep-intellectual-property-safe/

In a contract dispute over a breach of contract, you should raise as many legal defenses as possible, including “affirmative defenses.” It’s usually not enough to simply deny legal wrongdoing; you must respond with every plausible argument that justifies your position. And, if you don’t raise defenses in the early stages of a breach of contract lawsuit, you may be prevented from raising them later. This article explains how affirmative defenses work and looks at the kinds of legal defenses that might be used in response to a breach of contract claim.

What Is an Affirmative Defense to a Breach of Contract Claim?

Most defenses to a breach of contract claim are referred to as “affirmative defenses.” As a legal matter, this means that the party raising the defense (the person sued for breach of contract) has the burden of proving the defense, if the dispute goes to trial.

An affirmative defense does not contest the primary claims or facts (for example, that there was a breach of contract), but instead asserts mitigating facts or circumstances that render the breach claim moot. In other words, it is like saying, “Even if I breached the contract, the other party should not win the lawsuit.” For example, let’s say that Dodd, a teenage singer, fails to show up for a concert and is accused of breaching his contract to provide entertainment services. Regardless of whether he breached the agreement, Dodd may assert the affirmative defense that he lacked the capacity to enter into the contract in the first place because he’s a minor.

Common Affirmative Defenses to a Breach of Contract Claim

How you frame your legal defenses in a breach of contract lawsuit is limited only by your lawyer’s imagination (and your ability to bankroll legal fees). Some of the most common defenses are listed below.

• The contract was supposed to be in writing. If the other side argues that an oral agreement should be enforced against you, you may be able to defend yourself by claiming that a state law (known as the “Statute of Frauds”) requires the type of contract — for example, for the sale of real property — to be in writing.
• The contract is indefinite. If the essential terms were never agreed upon, you may be able to defend by arguing that the contract is indefinite. This means either the parties did not consider the deal to be final or that a court could not discern the essentials, even by implication (for example, if it’s not clear how long an agreement should last or what the specifications are for a construction project). Agreements to agree (such as letters of intent or agreements in principle) are usually considered indefinite and therefore unenforceable, although courts will require the parties to act in good faith to reach an agreement.
• There is a mistake. You can defend yourself by proving that a mutual mistake was made as to an essential fact in the contract — for example, both parties were mistaken as to the authenticity of a painting. You cannot use this defense when referring to a mistake in judgment by one party (“Oops, I could have gotten so much more for my painting!”)
• You lacked capacity to contract. If you lacked capacity (that is, you couldn’t understand what you were doing when you entered into the deal, as discussed in the example above), the contract may be voidable. This defense is most likely to succeed in the case of minors and those with mental incapacities.
• You were fraudulently induced to enter into a contract. A contract will be invalid if it was induced by lies, under duress (“Sign this or we’ll take your cat”), or by a trusted person’s undue influence (your real estate agent advises you to buy because she secretly gets a kickback from the seller).
• The contract is unconscionable. A contract won’t be enforced if it is grossly unfair. This almost always occurs in situations where the bargaining power is severely imbalanced (as in a contract of adhesion) and the party with more power takes advantage by forcing unfair conditions, clauses, or waivers on the other party.
• Estoppel. When one party makes a statement excusing performance of the agreement and the other party relies on that statement, the first party may be prevented from later denying that statement and claiming a breach. For example, if a bank president calls a homeowner and tells her that the bank won’t foreclose for six months in order to give the homeowner a chance to sell the home, the bank will be held to its six-month promise.
• The contract is illegal. A contract is unenforceable if its object or the thing bargained for is illegal — for example, a contract that enables prostitution, violates tax laws, or requires the destruction of records. Contracts that may indirectly aid illegal purposes will sometimes be enforced — for example, an agreement to supply gambling machines, even though they may be illegal in some states, may be enforced. Sometimes, a court will sever the illegal aspect from the agreement, leaving the rest of the contract enforceable.

The Catch-All Defense: Arguing in the Alternative

If you’ve been sued for breach of contract, the law permits you to claim as many alternative defenses as you want, even if they contradict each other. For example, you may argue that the contract is invalid or unenforceable, that you performed as required by the contract, and alternatively, that your failure to perform was justified by the other party’s actions — even though those arguments can’t all be true. (It’s a little bit like the criminal defense attorney who argues his client was 100 miles from the scene of the murder and, alternatively, that the murder was in self-defense.) Finally, in some cases, you may admit to the breach and assert defenses only to the damages claimed by the other side.

For more information on contract disputes, and an A to Z guide to everything you need to know about contracts, get Nolo’s new book Contracts: The Essential Business Desk Reference, by attorney Rich Stim.

Source: https://www.nolo.com/legal-encyclopedia/defenses-breach-of-contract-claim-33338.html

Anything that a person creates can potentially be considered intellectual property if it is not a replica or copycat of something that already exists. The way people usually protect their intellectual property is through patents. There are patents for everything — even cars. This brings attention to alleged “copycat cars” that automakers in China are producing. Learn more in the article below.

There has been much commentary in the press of late regarding Chinese car makers’ allegedly copying the designs of well-known western car makers. The commentary has ranged from the outraged (“How can they get away with this?”) to the resigned (“It’s just one of those things…”). 

However, perhaps a colder, more pragmatic approach to this evident challenge is necessary, focusing on the IP rights available to car manufacturers and their ability to enforce those rights. Also, it might help to recognise that the Chinese government has itself demonstrated that it is fed up of situations such as this, and is taking steps to make things better for rights holders.    

Design patents

In China, people (including foreign companies) can apply for registered design rights, known as design patents, to protect their designs. These can include automobile designs. 

In 2016, out of a total number of around 3.5 million patent applications in China, there were over 650,000 design patent applications. This rose from fewer than 570,000 in 2015 (a rise of around 14% in one year). Many of those design patent applications were made by foreign entities – around 500 applications from the UK, over 1,000 from Germany, and around 3,000 each from Japan and the US. 

These numbers for foreign applications are still perhaps rather small compared to the overall numbers of design patent applications in China. This might be due to the perception that IP rights are difficult to enforce in China.

However, that perception itself might be outdated, and worthy of re-examination, particularly in light of recent developments in Chinese law and practice. 

New Guidelines

In April this year, the Chinese courts released their Guidelines for Patent Infringement Determination (2017). These Guidelines have been long-awaited, and in many people’s eyes represent the Chinese government’s positive efforts to combat the perceived problems relating to IP infringement and enforcement in China. 

These Guidelines contain explicit sections devoted to “Determination of Protection Scope of Patent for Design” and “Determination of Infringement of Patent for Design”, and go a long way towards providing certainty for rights holders in terms of what their Chinese design rights cover and how they may be infringed. 

For example, the Guidelines (which have been released in both Chinese and English, although in the event of an inconsistency in the translation the Chinese version prevails) provide: “The determination of design patent infringement shall be conducted through comparison by means of direct observation from the visual sense of a normal consumer…” and that “judgment on whether the design is the same or similar shall be made according to the standard of the overall visual effect on the subject of judgment with the knowledge and cognitive capability of a normal consumer, rather than the observational capability of an ordinary designer of the design product or the actual purchaser of the product”. 

This is then related to the “design space” that the design occupies, in relation to which the Guidelines specify: “The more existing designs a certain design feature corresponds to, the more occupied the design space of the feature is, the smaller the design space is, the fewer alternative design solutions there are, and the greater impact the subtle differences will have on the overall visual effect; on the contrary, the fewer prior designs there are, the less occupied the design space of the feature is, the greater the design space is, the more alternative design solutions there are, and the subtle differences will not have significant impact on the overall visual effect.”

(This latter provision itself reflects what was said in Article 14 of “Interpretations (II) of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Patent Infringement Disputes”, which itself was released in 2016 and which also was aimed at addressing some of the perceived issues with IP enforcement in China.) 

What happens next

In the past, from 2000 until the 2016, there have only been a few dozen design patent disputes in China relating to motor vehicle design. This may be because many disputes have been settled out of court, or it may be because few cases have been filed. 

However, the new Guidelines from the Chinese courts may increase not only certainty of outcome but also awareness of design patent rights in China, so we may well see further cases in the future. 

Having said that, it is up to rights holders themselves to apply for, maintain and enforce their rights in order to take advantage of this potential increased certainty. The Chinese government has made the first move; let us watch how the market responds…

Matthew Jones is a partner of EIP in London. He thanks James P Chen and Gary G Wu for useful conversations and information in the course of writing this blog post

Source: http://www.managingip.com/Blog/3737750/Copycat-car-makers-and-the-role-of-design-rights.html