Monthly Archives: May 2016

Quick Hits: Timeliness, vacation selection, Deflategate and conduct unbecoming

Arbitrator exceeded authority ruling on the merits after finding grievance untimely

 Amalgamated Transit  Union, Local 85 grieved the actions of the Port Authority of Allegheny County in unilaterally revising its performance code governing absenteeism. At the arbitration the Port Authority maintained  that the grievance was untimely, and even if timely was without merit. The Arbitrator agreed that the grievance as untimely but ruled further that in any event the PA had not breached the contract. The Union sought to vacate that portion of the decision addressing the merits of the grievance. It claimed that once the arbitrator determined the grievance was untimely the arbitrator was without authority to rule on the merits. The trial court rejected the Union’s efforts, finding that the Union had never sought to bifurcate the procedural from the substantive issues. On appeal the Commonwealth Court of Pennsylvania reversed. It agreed with the Union, concluding:  ” Because the merits portion of the arbitration award cannot logically flow from the CBA due to the arbitration panel’s disposition as to timeliness, the arbitration award does not satisfy the essence test.”
The Court’s opinion can be found here.

City erred in canceling vacations during Republican convention 

The City of Cleveland, in anticipation of hosting the Republican National Convention, announced that no vacations would be approved for the time period surrounding the convention. The Cleveland Police Patrolmen’s Association grieved this decision as contrary to its cba. The parties agreement provided for 52 one week “furlough” [vacation] periods during the calendar year and further provided that the same number of officers would be on furlough during each of the furlough periods. Arbitrator Alan Miles Ruben upheld the Union’s grievance. He found that the management rights provision of the cba did not override the explicit language of the cba. However, in light of the disruption that would be created in recanvassing for vacation, and the undisputed need for an “all hands” response, he ordered the City to pay the most senior fifty (the number otherwise eligible for vacation)  Patrol Officers scheduled on duty, in seniority rotation, time at the call in rate overtime rate. Cleveland.com reports  on the decision and links to the award here.

Two briefs filed seeking reconsideration of Deflategate decision

 The NFL Players Association has filed a request for reconsideration with the Second Circuit, seeking a rehearing of the Court’s decision upholding the suspension of Tom Brady. A copy of the Union’s brief is available here. The New England Patriots filed  an amicus brief in support of the request.


Termination of police officer for racially derogatory text messages upheld

Arbitrator Carey M. Fischer has upheld the termination of a Fort Lauderdale police officer who engaged in an exchange with coworkers of text messages containing “disparaging and offensive racial terminology.” Arbitrator Fischer rejected the officer’s claims that the messages had been improperly intercepted, that he had a right to privacy in communicating with fellow officers, and that his communications were protected by the First Amendment. The arbitrator observed: “The heat of battle is one thing; denigrating a whole group as part of one’s personal entertainment is another. A slip of the tongue in a fit of pique or a one time indiscretion maybe allowable. But, the conduct in this case is not.” Accordingly he upheld the decision of the City that grievant had engaged in “conduct unbecoming a police officer” and found sufficient cause for dismissal. Local10 reports on the case and links to Arbitrator Fischer’s award here.

Source: ADR

CA9: Decision that an award is not "plausible" is insufficient to vacate

A dispute arose between Drywall Dynamics, Inc and the Southwestern Regional Council of Carpenters concerning attempts by the Company to withdraw from a multi employer bargaining arrangement. The Company’s initial attempt to terminate its participation was rejected by the Union as untimely. A second rejection occurred after the association and the Union entered into a Memorandum of Understanding extending the cba for an additional year. In response to a grievance concerning the Company’s claimed breach of the cba, an arbitration panel determined that the Company’s purported withdrawal was untimely. 

The Union sought to confirm the award and the Company sought to vacate it. The District Court vacated the award, concluding that the arbitrator’s interpretation of the agreement was not plausible, and that it was contrary to public policy.

On the Union’s appeal, the Ninth Circuit has reversed. In doing so it recognized that language of several earlier opinions suggested that an award would be deemed to have drawn its essence from the parties cba as long as it was a “plausible interpretation of the contract.” It determined however, that the plausibility inquiry did not authorize an independent basis for an attack on the merits of the award. Finding that the term was “somewhat misleading” the Court decided to eliminate its use. It concluded:

...it is time for us to retire the use of “plausibility” as a term to describe the courts’ role in reviewing labor arbitration awards. We do not, of course, propose any substantive change to the settled law in this area, nor could we. We merely reiterate, and emphasize, the fundamental concept  Hawaii Teamsters articulated, drawing on decades of Supreme Court jurisprudence: the quality—that is, the degree of substantive validity—of an arbitrator’s interpretation is, and always has been, beside the point. Instead, the appropriate question for a court to ask when determining whether to enforce a labor arbitration award interpreting a collective bargaining agreement is a simple binary one: Did the arbitrator look at and construe the contract, or did he not?

Concluding that the panel’s  analysis was grounded in a reading of the parties’ agreement the Court found that the award was entitled to be confirmed.

The Court also rejected the Company’s public policy challenges to the award which had claimed the award violated a policy of voluntary relationships between employers and multi employer associations and that it improperly imposed union representation on the Company’s employees. 


The Ninth Circuit’s opinion can be found here.
Source: ADR

Collection: Intellectual Property (Unjustified Threats) Bill

Updated: Guidance document added.

In 2012 the Department for Business, Innovation and Skills (BIS) and the Intellectual Property Office (IPO) asked the Law Commission to review the existing threats provisions within patent, trade mark and design law. The Law Commission published a Consultation Paper in 2013 and responses showed strong support for retaining protection against unjustified threats and overall support for reform of the existing law.

The consultation exercise was followed by a Law Commission Report in April 2014 which summarised the responses received and made 18 recommendations for reform. The government responded on 26 February 2015, accepting the recommendations (in a few cases with some qualifications), and tasked the Law Commission with drafting a bill. This was published along with the Law Commission final report on 12 October 2015. The government then conducted a public consultation on the draft bill during late 2015, and published its response to that consultation on 28 January 2016.

The aim of the Unjustified Threats Bill is to make life easier for businesses and entrepreneurs.

It does this by:

  • clarifying the type of communications which are permitted between parties involved in a dispute over IP infringement
  • preventing the misuse of threats to intimidate or gain an unfair advantage in circumstances where no infringement of an IP right has actually occurred
  • providing a clear framework within which businesses and their professional advisors can operate to resolve disputes, including attempting to negotiate a settlement before turning to litigation

The Bill was introduced into the House of Lords on 19 May 2016, and will follow the special Parliamentary procedure for bills which implement Law Commission recommendations.

Regular updates will shortly be available on the Parliament timing page.

Source: UK IPO News

USPTO Regional Offices Forge Ahead in 2016

Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee

USPTO regional offices support our core mission of fostering American innovation and competitiveness by offering services to entrepreneurs, inventors, and small businesses, while effectively engaging communities and local industries. All four of our regional offices now have directors, making us well-positioned to fully advance this mission. The establishment of four USPTO regional offices fulfills a commitment dating to September 16, 2011, when President Obama signed the Leahy-Smith America Invents Act (AIA) into law. All the regional offices have been busy these last few months, including holding events for World IP Day and enabling local innovators to participate virtually in the Patent Quality Community Symposium.

Since its grand opening on November 9, 2015, the Texas Regional Office in Dallas welcomed its first class of patent examiners in January, and they are expected to complete their initial training and move into their offices by the end of April. The office also welcomed five new Patent Trial and Appeal Board (PTAB) judges in the first quarter of 2016, thereby reaching a total of 17 PTAB judges. The Texas Regional office has already held a number of outreach events in 2016, including three seminars on patents, trademarks and petitions, and a Congressional App Challenge celebration for students and their families who participated in the competition from Congresswomen Eddie Bernice Johnson’s district.

The West Coast Regional Office in Silicon Valley continues to engage in conversations about policy decisions that affect innovation. It’s hard to believe the Silicon Valley office officially opened only six months ago, on October 15, 2015. It has already celebrated the graduation of its first training academy of examiners and welcomed its second academy in February.

The office is serving the regional entrepreneurial community with events such as “Speed Dating for Startups,” co-sponsored by Santa Clara University, where over 150 entrepreneurs, small business owners, and students learned about incorporating IP into their business strategies. Several top USPTO officials also participated in an “Inventor and Entrepreneur Forum” at the University of California, Irvine Applied Innovation Lab, which had 700 attendees in person and online. The office also recently welcomed Secretary of Commerce Penny Pritzker, who discussed the importance of open data to innovation in an entrepreneurs’ showcase, and Deputy Secretary Bruce Andrews who met with the newest class of examiners and the newest PTAB judge.

The Rocky Mountain Regional Office, which will celebrate its second anniversary in June, has experienced a number of firsts since our last update. The office hosted its first Trademark Trial and Appeal Board (TTAB) argument, with participants in Denver appearing before the TTAB via the USPTO’s telecommunications system, and will also be holding its first AIA trial proceeding in the month of April. The office is now fully staffed with PTAB judges and examiners, with the addition of two new PTAB judges, and a third class of patent examiners that graduated recently.

Under the leadership of Regional Director Molly Kocialski, education efforts and partnerships in the Rocky Mountain region have expanded significantly, with outreach visits and events across Colorado, Utah, Nebraska, South Dakota, Wyoming and Montana. These include conferences, listening tours, participation in startup weeks in the region, STEM engagement, presentations, office hours, and meetings with members of the public and partners across the region. Additionally, we were very excited to release a new USPTO inventor trading card featuring Rocky Mountain inventor and noted autism advocate Dr. Temple Grandin.

The Elijah J. McCoy Midwest Regional Office in Detroit has continued to host PTAB hearings, including their first live Inter Partes Review trial in January, and recently welcomed a new Administrative Patent Judge, bringing the total to 11 PTAB judges. The office has been active in the community as well, recently hosting the first Patent Drafting Competition in conjunction with University of Detroit Mercy. Law schools from around the Midwest region sent teams to Detroit to present in front of a panel of judges including patent examiners, PTAB judges and IP practitioners, with Indiana University Maurer School of Law winning the competition.

In March, Commissioner for Trademarks Mary Boney Denison joined Midwest Regional Director Dr. Christal Sheppard at the IP Spring Seminar in East Lansing, Michigan, coordinated by the Michigan State Bar IP Section, and also spoke to 60 local entrepreneurs at a Trademark Lunch and Learn at TechTown Detroit. In a continuous effort to attract a talented workforce, the Midwest Regional Office will be hiring a new class of patent examiners soon and has been on the recruiting trail with stops at several local university career fairs and informational sessions.

The USPTO regional offices play an important role in supporting the overall mission of our agency, including ensuring easier access by innovators and entrepreneurs to resources and intellectual property protections they need to compete in today’s global economy. To find out more about events in any of our regional offices, visit the events page of the USPTO website, and for employment opportunities, visit USAjobs.gov for openings. I will continue to keep you informed about new updates on our regional offices throughout the year on this blog.

 

Source: USPTO

Working below classification, seniority and management rights

These were the topics in issue in a recent award by Arbitrator Richard Beens.

 The dispute arose between Boise White Paper and Steelworkers Local 159 and involved interpretation of the parties’ cba. The agreement had what the arbitrator described as a strong management-rights clause providing:


Section 3.1 The Company has the right to assign work to employees, irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way. Further, nothing contained in this Agreement including, but not limited to, the Recognition Article shall limit in any way the Company’s right to assign work to employees covered by this Agreement or to other employees not cover by this Agreement.

The Company and Union were parties to a separate Memorandum of Understanding which also addressed the assignment of work and was designed to enhance efficient operation of the facility. It was the relationship between these two documents that formed the basis for the Union’s claim. Specifically the Union challenged Company’s temporary assignment of bargaining unit employees to jobs below their attained position on the seniority ladder. 


The Progression Ladder which had previously been in place at the facility engendered what the arbitrator referred to as a “not my job” refrain from unit employees. The MOA was designed to address that perception and enhance the efficiency of a struggling operation. The Union claimed, however, that the MOA did not authorize the Company to temporarily assign employees downward, and claimed that such an assignment violated employees’ seniority rights.


Arbitrator Beens rejected these claims, concluding:


The Union argues that the giving the Employer the right to assign downward nullifies the seniority provisions of the CBA. I disagree. Union members continue to accrue seniority during their temporary assignments and are only assigned to positions for which they are qualified, again as required by the CBA. The Union presented no evidence that [Grievant’s], or any other Local 159 member’s, seniority or qualification status was in any way affected by a temporary assignment.

                                                     ***

In summary, Article 3.1 gives the Employer broad rights to assign employees, “…irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way.” The CBA, MOA, and Pay for Knowledge provisions relied on by the Union do not modify the Employer’s rights to make temporary downward assignments under Article 3.1. Base[d] on the clear, unambiguous contract language, I must deny this grievance. 

Arbitrator Beens’ award can be found here.

Source: ADR

Protecting U.S. Trade Secrets

Blog by Under Secretary of Commerce for Intellectual Property and Director of the USPTO Michelle K. Lee

Innovators of all types, from independent inventors to large corporations, rely on trade secrets to safeguard their creativity, gain competitive advantage, and further their business goals. Congressional passage of the Defend Trade Secrets Act, and the signing of the bill by the President this week, strengthens U.S. trade secret protection for U.S. companies and innovators, allowing trade secret owners to now have the same access to federal courts long enjoyed by the holders of other types of IP.

Read more in my opinion editorial, “Protecting America’s Secret Sauce: The Defend Trade Secrets Act Signed Into Law,” in The Huffington Post.

Source: USPTO

News story: Changing the way we process patent form 7

Updated: Content added giving confirmation from 1 September 2016 the Office will no longer send inventors copies of patent form 7s.

Update to proposed changes

We invited comments (see below) on this proposed change. As no comments were received, the Office will no longer send inventors copies of patent form 7s from 1 September 2016.

Proposed changes

Following discussions with stakeholders, we propose to stop notifying inventors (who are not also applicants) when they are mentioned in patent applications.

There is no proposed change to the way we communicate with inventors who are also applicants.

There are a number of reasons why we are considering this change:

  • we are no longer legally obliged to notify inventors of their inclusion in a patent application
  • the majority of inventors are already aware of their inclusion in an application. Many are employed by the applicant, or have assigned or agreed to assign, their right to be granted a patent
  • we have evidence that a number of inventors have been confused by our existing notifications, incorrectly assuming they have to respond in some way
  • we currently only notify inventors in applications which do not claim priority from an earlier application. This results in different processing depending on the type of application and we would like to standardise our approach in this area

Source: UK IPO News

USPTO Celebrates World IP Day and Digital Creativity

Guest blog by Russ Slifer, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO

Last week, the USPTO celebrated World IP Day in the Washington, D.C. region, across the country, and abroad. World IP Day was established in 1999 by the World Intellectual Property Organization (WIPO) to celebrate the important role of intellectual property (IP) and the contributions made by creators and innovators around the globe. We had a lot of fun with this year’s theme, “Digital Creativity: Culture Reimagined.” We chose to highlight the importance of the video gaming industry, its exponential growth, and impact on our daily lives.

On April 26, the USPTO hosted the “Legend of World IP Day,” in Alexandria, Va., an event focused on the history of IP and creativity in the video game industry. Video game curator and patent holder Chris Melissinos discussed how video games have rapidly evolved, been commercialized, and have become ingrained in our culture during his keynote remarks. Watch the recorded livestream of the event, and watch our USPTO video which goes behind the scenes on IP and the history of the video games. 

I spoke on Capitol Hill on April 26 at the World IP day event, “Digital Creativity: Culture Reimagined,” where I discussed the importance of digital creativity, the USPTO’s progress on copyright treaties, and the importance of ensuring that our copyright system and laws keep up with the digital age. Read my remarks.

The White House also recognized World IP Day, with President Obama issuing a commemoration of World IP Day, stating: “Whether through the music or movies that inspire us, the literature that moves us, or the technologies we rely on each day, ingenuity and innovation serve as the foundations upon which we will continue to grow our economies and bridge our cultural identities.” The President even tweeted his favorite movie, song, and invention. Others posted their list of favorite American innovations and creative works using the hashtag #AmericaCreates.

Our USPTO regional offices held events to celebrate World IP day across the country. On April 20, the Midwest Regional Office held a World IP day event in Detroit recognizing local students for their innovations and contributions to their community. The West Coast Regional Office in Silicon Valley held several World IP events, including a gathering of the Bay area intellectual property community on April 21, featuring the Honorable Sam Liccardo, mayor of San Jose. The Rocky Mountain Regional Office held “The Evolution of Cultural Expression through Digital Creativity” on April 25, focusing on Native American culture, as well as a Lunch and Learn with startups and entrepreneurs on April 26. And on April 27, the Texas Regional Office hosted a World IP Day exposition in Dallas, where business, legal, academic, and federal experts provided attendees tips on protecting their IP, developing technologies, and building their businesses. See our Facebook photo album of World IP day highlights.

Finally, USPTO IP Attachés participated in World IP Day events around the world with U.S. Embassies, consulates, and the American Chamber of Commerce, including roundtable discussions in China and Thailand, events in Mexico and Qatar, a film screening and discussion in Singapore, and cyber working group meetings in the Ukraine.

The USPTO is focused on safeguarding the rights of creators of all types and supporting an ecosystem where innovation can flourish. We are honored – not only on World IP Day, but every day – to do our part to support creators, innovators and entrepreneurs as they define their ideas in the form of patents, trademarks, and copyrights.

Source: USPTO

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George’s County, MD and the Prince George’s County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department’s Criminal Investigations Division concerning the alleged crimes, and separately by the Department’s Internal Affair’s Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant’s employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant’s eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County’s claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County’s request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county’s code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county’s police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County’s authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator’s authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George’s County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court’s opinion in Prince George’s County Police Civilian Employees Association v. Prince George’s County, Maryland can be found here.
Source: ADR