Archive for the ‘News’ Category
Employers often require that new employees sign a slew of documents to protect the interests of the employer. These may include, among other things, a non-compete agreement.
Non compete agreements, properly structured, are enforceable in most states. But in California non-compete agreements are generally unenforceable based
on court decisions (Edwards v. Arthur Andersen, a 2008 California Supreme Court case) and statutory law. California Business and Professions Code, Section 16601 states:
“Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”
The exceptions stated in the Code generally relate to business owners.
California law on this topic places employers at a disadvantage vis-à-vis employers in other states who are competitors in the same industry. Still, California employers can take steps to protect their vital interests. These include properly drafted confidentiality agreements. Employers may not be able to prevent California employees from working for competitors, but they can prevent such employees from disclosing their confidential information and trade secrets to such competitors.
A law firm that knows how to draft proper employee agreements to protect your interests as a California employer is vital.
Contact Schein & Cai for all of your employment law needs. Our attorneys draft employee agreements and have handled a variety of employment law disputes with great success and client satisfaction. We offer a free initial consultation.
Find us at www.sacattorneys.com
The giant online retailer Amazon has ended its relationships with California based affiliates who funnel customers their way over concern that a new State law could force it to pay sales tax on all purchases made by California residents.
What the average person may not know is the lengths to which Amazon has gone since its founding to avoid paying sales tax nationwide. According to a recent Wall Street Journal article, avoiding sales tax was front and center in the mind of the Company’s founder when he created the online retailer and
decided where to base its operation (Washington state). Working to avoid sales tax makes good business sense since sales tax can amount to approximately 8% of a retail purchase. Not having to pay the tax provides a competitive advantage over retailers who must.
Under a 1992 US Supreme Court decision, retailers don’t have to collect sales tax in states where they lack a physical presence. What amounts to a “physical presence” for these purposes is sometimes open to debate.
Amazon has taken steps to avoid “physical presence” whenever possible. The Journal article reveals that the Company’s efforts in this area have included, among other things, (a) requiring manager permission before staff could travel to certain states where their presence soliciting business or performing other acts might subject the company to sales tax, (b) requiring that staff traveling to California use special business cards that listed them as employed by a digital subsidiary of Amazon, not the core retail operations, and (c) directing staff not to send company emails when they were physically present in certain states.
State sales tax laws built for a bricks and mortar society seem outdated in a digital world. That’s why some advocate a national sales tax for online retailers.
Schein & Cai, advises businesses, including high tech and other companies in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain View,
Sunnyvale, Morgan Hill, Oakland, San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at www.sacattorneys.com
It makes great copy when business litigation pits a David vs. a Goliath. A small upstart company, toiling away in its hometown, unknown to the world, becomes the target of a huge multinational player, or sues the huge company, claiming that the practices or actions of the household name have damaged it through use of technology or other intellectual property owned or created by the upstart. Those who like to root for the underdog have no problem identifying where their
sympathies lie in such a dispute, sometimes irrespective of the merits.
But it’s also fascinating when two of the big boys duke it out, companies that have unlimited resources to wage legal war, behemoths facing off against one another
in oversized disputes borne out of clashing personalities, the desire to crush major competitors and dominate the market, or perhaps more noble causes.
Such a contest has now been joined between two high-tech titans, Hewlett-Packard and Oracle, rearing its head as a lawsuit based on breach of implied contract (and
other legal grounds). HP claims that Oracle’s plan to stop supporting software on systems that run Intel’s Itanium chip, systems used by 140,000 HP customers,
violates understandings and agreements between the parties. The precise nature of the claims is somewhat fuzzy because HP filed a redacted complaint and Motion To
Seal Records. Oracle responded, filing this intriguing Opposition To Motion To Seal Records.
The case is complicated by the fact that Oracle hired HP’s former CEO, Mark Hurd in 2010. Add to the mix Oracle’s earlier acquisition of Sun Microsystems, which made
it a hardware player and direct HP competitor, and one can see why this Goliath vs. Goliath dispute has all the earmarks of a thrilling oversized drama.
Schein & Cai, advises high tech and other companies in the Silicon Valley and beyond, including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill,
Oakland, San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City, Cupertino, Saratoga and Emeryville.
Find Schein & Cai at www.sacattorneys.com.
The Pittsburgh Steelers may have lost Super Bowl XLV to the Green Bay Packers on February 6, 2011, but they weren’t the only ones to suffer a big loss based on their performance that day.
Chrysler, the Detroit automaker, unveiled a new marketing slogan in its Super Bowl ads: “Imported From Detroit”. Within days, a clothing company started selling T-shirts with the new Chrysler slogan. Chrysler sued for trademark infringement, among other things, seeking a preliminary injunction to prevent the clothing company (Moda) from using the phrase until the lawsuit was decided. But the Federal District Judge ruled that Chrysler failed to demonstrate it would suffer irreparable harm, or a strong likelihood that it would win the case, so the request for a preliminary injunction was denied.
Basically, the Judge felt consumers were unlikely to be confused as to the source of the T-shirts, i.e. unlikely to think that Chrysler was behind them. Since likelihood of confusion is the key to trademark infringement, Chrysler’s argument failed.
It’s worth noting that Chrysler also filed three trademark applications with the U.S.
Patent and Trademark Office (USPTO) related to the phrase “Imported From Detroit”. But those applications have not yet been ruled upon and Moda has filed protest letters in the USPTO objecting to all three.
Chrysler could still win at trial. So stay tuned.
Schein & Cai was named as a 2008 Top U.S. Trademark Law Firm according to Intellectual Property Today®.
Find Schein & Cai at www.sacattorneys.com.
CLEVER MARKETING CAMPAIGN OR COPYRIGHT INFRINGEMENT?
The first trailer for the upcoming movie, The Girl With The
Dragon Tattoo (US remake), hit the web on Sunday June 29,
2011 shortly after it appeared in European cinemas. The
trailer begins with a few seconds of a shaky frame, as if
someone sitting in the front row of a theater somewhere in
Europe copied it illegally on a video camera.
Or did they?
Some believe the trailer’s clear sound, sharp focus and other characteristics
point toward a clever viral marketing campaign orchestrated
by Sony Pictures, not a lone infringer sitting in a darkened
theater in London or Milan.
But a few days after the trailer first appeared, it was pulled down from the web,
leaving those who click the play button with a lonely message that reads: “This video
is no longer available due to a copyright claim by Sony Pictures . . . ”
Did Sony pull the trailer and end a clever marketing play when people started
questioning whether they were behind it? Or is the takedown real, the result of a
Hollywood studio enforcing its rights through remedies available under the Digital
Millennium Copyright Act (DMCA) and other laws?
We may never know for sure, but at least we can enjoy the new version of the
trailer, officially released by the studio itself, a few days later.
If your copyright protected works show up on the web without permission, Shein &
Cai can help determine if infringement has occurred. We can send DMCA takedown
notices to websites, and advise you on other steps to enforce and protect your
rights.
Contact Shein & Cai for a free initial consultation.
New Client Testimony:
My sister and I were defendants in a civil litigation case. We hired James Cai and his law firm, Schein & Cai LLP. Mr. Cai is a diligent attorney and responded to our questions in a timely fashion. He and his staff were very helpful in keeping us informed of the proceedings of the case and in explaining each step. Mr. Cai is also very conscientious of fees and costs, and avoided unnecessary charges. The results of the Summary Adjudication sided with us. The Court Trial resulted in the “Final Statement of Decision” and “Judgment after Court Trial” overwhelmingly siding with us.
- Cynthia
US SUPREME COURT UPHOLDS NEED FOR CLEAR AND CONVINCING EVIDENCE TO REBUT PRESUMPTION THAT A PREVIOUSLY ISSUED PATENT IS VALID
The US Supreme court has confirmed that “clear and convincing evidence” is
required to rebut the presumption that a previously issued patent is valid, issuing
an 8-0 decision on June 9, 2011. The decision came in a case involving Microsoft
and i4i, a small Toronto-based software firm, which had a patent on a method
to manipulate a document’s structure separate from its contents. Lower courts
previously held that Microsoft Word infringed the i4i patent and awarded $290 million
in damages.
Microsoft had argued on appeal that a patent examiner’s decision in granting a
patent should be given less deference when there is evidence at trial that the
examiner had not considered. Commentators and amicus briefs filed in support
of Microsoft argued, among other things, (a) that patent examiners do not spend
enough time on each application to reach an informed decision as to whether an
invention is truly new and obvious, and (b) the current system results in many
business owners being vulnerable to questionable patents that may have been
mistakenly issued in the past.
Others saw things differently, arguing and filing amicus briefs stating that it would
be difficult to raise investor capital for new inventions if patents could be attacked
using a lower legal standard than “clear and convincing” evidence when attempting
to rebut their presumed validity.
Shein & Cai was recently named one of the Top US Patent Firm for 2010 by
Intellectual Property Today®. We assist companies in Silicon Valley and beyond,
including San Jose, Santa Clara, Mountain View, Sunnyvale, Morgan Hill, Oakland,
San Francisco, Palo Alto, San Mateo, Santa Cruz, South San Francisco, Daly City,
Cupertino, Saratoga and Emeryville.
April 13, 2011 (San Jose, California) – Schein & Cai LLP is honored to announce that it is named as one of the Top U.S. Patent Firms for 2010 by Intellectual Property Today® (www.iptoday.com). The law firms are ranked according to the number of patents issued in 2010 where the firm or individual attorney is listed as the legal representative. This recognition demonstrated our firm’s continued commitment to develop our clients’ intellectual property rights, especially in the area of patent prosecution.
At Schein & Cai, we understand that intellectual property rights are key assets of our clients and critical to their future sustainable growth. We do not just take their ideas and draft patent applications. We work closely with our clients to analyze their technology, industry and competitive landscape. We assist our clients to develop and
implement integrated and cost effective intellectual property development strategies that maximize the return on their R&D investment. This includes, but is not limited to, patent prosecution, copyright registration, trademark registration, trade secret protection,
and enforcement in federal and state courts and arbitration forums. By engaging us as a focused business and intellectual property law firm, our clients are able to achieve a high level of services at very competitive rates in today’s legal market.
About Schein & Cai LLP
Schein & Cai LLP has been a focused business and intellectual property law firm located in San Jose, California since 2003. Its practice areas include corporate law, intellectual property law (patent, copyright, trademark, trade secret, intellectual property licensing), civil litigation (including bankruptcy litigation), real estate law, and employment law. Its attorneys are licensed to practice law in California and in front of the United States Patent and Trademark Office. The firm was named as a Best of San Jose local business in 2009, one of the Top Trademark Firms in 2008 and one of the Top Patent Firms in 2010 by Intellectual Property Today®. For more information, call (408) 436-0789×201 or visit www.sacattorneys.com.
May 2, 2010, San Jose
Schein & Cai LLP achieved an early stage favorable settlement for its client, an on-line ecommerce retailer in a Federal trademark infringement and unfair competition lawsuit filed by a major manufacturer in Federal District Court for the Northern District of California. Our firm took a proactive and practical approach during the defense, by thoroughly investigating the factual background of the case, assessing the risks and exposure that the client could face in a prolonged litigation, and identifying the third party that the client may seek indemnification from. The client was thrilled by the results that we achieved expeditiously and within the budget.
What would happen if you and your spouse got into an accident and ended up unable to speak for yourselves, pay your bills, make your own investment decisions? What will happen to all the assets you’ve accumulated after you’re gone? There are several ways to handle these matters, one of which is a Living Trust. You can assign Power of Attorney to someone for your financial and health care decisions (in the event you become incapacitated). It is recommended that you have these documents even if you use a Living Trust as the basic document. Read the rest of this entry »