BL Final Flashcards
A design patent
protects the appearance not the function of an item
Majority of Patents are
utility patents - protect the way an invention works
Requirements of a Utility Patent
novelty - must be new
non-obviousness
utility - must be useful
only for tangible application
Myriad Genetics
Myriad’s DNA patent (the specific gene it isolated) was invalid because separating the gene from its surrounding genetic material did not represent an act of creation.
Not Patent Protection
scientific principles
isolated genes
math algorithms
Copyrightable Work - Protected Expression
work must be original and fixed in a durable medium
Fair Use DOctrine
permits limited use of copyrighted material without permission
- Purpose
- Nature
- Amount
- Effect
Trade secrets vs. Patents
can potentially be maintained indefinitely whereas patents can eventually expire
customer list IS a trade secret
Trademark
Lift vs. Lyft
first person to use a mark in trade owns it
Holder of a Utility Patent
has the exclusive right to make, use, sell, offer for sale, or import the patented invention. This means they can prevent others from not only selling or profiting from the invention but also from merely building or using the patented design without authorization.
Patent troll
It amasses a trove of patents, but instead of selling patented products it generates revenue by threatening lawsuits for supposed infringement of its patents.
On a copyright infringement claim, in which of the following ways can a plaintiff prove that the defendant actually copied her work?
By showing both that defendant had access to plaintiff’s work and that his later-created work was substantially similar to the plaintiff’s.
Originality requires
minimal creativity
Copyright Song
important part of the song is crucial
Artistic Idea
A pure artistic idea, such as a melody that has not been recorded or written, does not qualify for copyright protection.
Valid Copyright Infringement Claim
permission
Principal vs. Agent
principal - person who has someone acting for them
Independent Contractors
operate as self employed individuals or businesses
In some cases, an agency or court may deem a worker an employee under the “economic realities” test even if a majority of its six factors indicate independent contractor status.
True
Economic Realities Test
Is the worker economically dependent on the employer (employee) or in business for themselves (independent contractor)?
Express Authority
The principal grants express authority by words or conduct that, reasonably interpreted, cause the agent to believe that the principal desires the agent to act on the principal’s account.
Implied Authority
not explicitly stated
Apparent Authority
perceived by a third party based on the principal’s actions or representations
Fully Disclosed Principal
third party knows
agent is not liable
Unidentified Principal
third party knows but doesn’t know principal’s identity so may be held liable
Undisclosed Principal
third party doen’t know
agent is personally liable
When an employee-agent commits a negligent act within the scope of her employment that injures a member of the public, which of the following is true?
Both the employee and her employer are liable to the injured party.
Under the doctrine of respondeat superior (Latin for “let the master answer”), an employer is vicariously liable for the negligent acts of its employees when those acts are committed within the scope of their employment.
At Will Employment
applies in nearly every state
employer can terminate an employee at any time, for any reason, or for no reason at all, as long as it is not illegal. Similarly, an employee can quit their job at any time, for any reason, or for no reason, without facing legal consequences.
Without Cause
for no reason for any reason
except for any reason prohibited by law
An employee who accepts workers’ compensation benefits for a workplace injury:
can’t sue for negligence
Supervisors and Managers
do not benefit from the protections of the National Labor Relations Act (NLRA) if they attempt to unionize.
Sit Down Strike
not protected from the NLRA
When a company’s workers go out on strike, in which of the following circumstances is the company allowed to hire permanent replacement workers to replace the workers who strike?
When the strike is an economic strike intended to obtain improved wages or employee benefits.
Mandatory Subjects under NLRA
wages
work hours
employee benefits
Non Union
is also represented by NLRA
CBA
can be about anything
parties must bargain over wages, benefits, hours
may bargain over almost any subject
Interference
includes any policy or conduct that creates a reasonable probability of chilling EE’s from acting collectively to pursue better wages or conditions
Public communications that cross the line into disparagement
lose NLRA’s protections
Just Cause
principle in employment law that requires an employer to have a legitimate, fair, and reasonable reason to terminate an employee.
At Will can be Defeated
via implied contract rights
When company’s workers go on strike the company
When the strike is an economic strike intended to obtain improved wages or employee benefits.
Qualified Privilege
protects employers from defamation liability when they provide statements about a former employee in good faith and for legitimate purposes
Equal Pay Act
- Seniority
- Merit
- Quantity or Quality of Work
- Any other factor other than sex
Racial Harassment by Coworkers
plantiff must additionally prove That the company knew or should have known of the harassment and failed to take prompt and effective remedial action to end it.
disparate impact discrimination
seemingly neutral policy or practice disproportionately affects members of a protected class, even though there is no intentional discrimination
Employee and Racial Discrimination Claim
cannot skip the EEOC process
Harassment
is a form of discrimination
Intentional Discrimination is called
disparate treatment
For Intentional Discrimination
employee must prove employer’s stated reason is pretext
Prime Facie
Advantages of At Will
an at will ER does not have to show that its nondiscriminatory reason for termination was correct
Employment Not AT WIll
individual contract
EE will be liable for damages if he quits during the term of employment for no good reason
ER will be liable if it terminates for a reason inconsistent with the contract
Unfair Labor Practices
- Interfering with Employees’ Rights
- ER cannot fun or control a labor union
- Discriminate
- Once union is established, required to be in good faith
Protected Activity
reporting discrimination
supporting another employee’s complaint in any manner
EE and Protection
does not have to be correct to be protected
however, they need to have good faith and reasonable belief
Valid Retaliation Claim
does NOT require a tangible employment action —–
only conduct that would chill others from reporting or supporting claims in the future
Whistleblower Laws
protect an EE from retaliation for making a report of unlawful company conduct
Oregon Whistelblower
absence of any reasonableness requirement
Quid Pro Quo
applies to only harassment by supervisors
Supervisor vs. Coworker Harassment
supervisors act as agents of their ER when they misuse their authority
ER’s are therefore automatically liable for harassment by their supervisors
Non Supervisor Harassmnt
if non-supervisory coworkers are the harassers, ER’s liability goes on
constructive knowledge
failed to take reasonable action
Larceny
theft of personal property
Embezzlement
theft of money or assets by someone in a position of trust
Fraudulent conversion
act of using or keeping property or money that is not yours for illegal or dishonest purposes. It is a type of larceny that is similar to stealing, but with an additional layer of dishonesty because the person tricked the owner.
RICO
government must show that the defendant engaged in a pattern of racketeering activity, which requires at least two criminal acts (also called “predicate acts”) within a 10-year period
Corporate Officers and Corporations
can be convicted of crimes under US Law
Criminal Cases
unanimous decision
Most Cases
do not go to trial
In federal court, to overturn a jury’s conviction and replace it with a judgment of acquittal for the defendant, a trial court (i.e., the trial judge) must find which of the following?
That no rational jury could have found that the government proved the essential elements of the crime beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution.
False Representation is considered Material
if had a natural tendency to influence a person to part with money
Consideration
It refers to the value (money, services, promises, etc.) exchanged between parties to form a binding agreement. Without consideration, a contract is typically not valid.
must flow both ways
promise must be legal
Bargained for Exchange
Consideration must result from a bargain, meaning that each party agrees to give up something in exchange for the other party’s promise or action.
Pre-existing Duty Rule
A promise to perform a duty that one is already legally or contractually obligated to perform is not valid consideration.
The reasoning is that the promisor is not giving anything new or additional in the exchange.
Examples:
Contractual Duty: If a contractor is already under a contract to build a house for $200,000, they cannot demand an additional $50,000 to complete the same project unless they offer something extra
Non Criminal
51/49 = Preponderance of Evidence
SEC and Offerings
Does not itself evaluate or investigate the quality of any offering; it simply ascertains that, on the surface, the company has disclosed all required information about itself and the security it is selling
material
enough to affect a decision
Predatory Pricing
setting extremely low prices to eliminate competitors
DOJ vs. FTC
DOJ is consumer welfare, prices, product quality, innovation
FTC is more broad, through politics and society
Monopsony
A dominant buyer that can unilaterally dictate terms to sellers/suppliers
Per Se Violation
Unreasonable… affiliated with antitrust
the arrangement is inherently unreasonable
Regulation D
The most common and important type of private offering is under Regulation D. It controls how much stock can be sold to whom and under what circumstances.
Blue Sky Laws
state security laws
Clayton Act
prevents mergers that are anticompetitive
Tying Agreement
sell a product but also purchase another
RPA - Robinson Patman Act
illegal to charge different prices to different purchasers
Provisional Patent
does not grant a patent or legal rights to the invention. It provides a placeholder with the U.S. Patent and Trademark Office
12 months
Copyright
lasts 120 years
Endorsement
is protected under trade law
Copyright Law
- Similar
- Access to the original
When a contract goes wrong, a third party can always recover damages from the agent, whether the principal is fully disclosed, unidentified, or undisclosed.
T
F
False
Trademark
needs to be association
Principal
is always liable on a contract
An agent may never act for two principals whose interests conflict.
T
F
False
As long as they give consent
Agent and Principal
has a duty to provide the principal with all information in the agent’s possession that they have reason to believe the principal wants to know, even if the principal does not specifically ask for it
Factor for deciding contractors
amount of control ER has over its workers
Oral Promises
can be enforceable
Title VII applies to all aspects of the employment relationship, including hiring, firing, and promotion.
T
F
T
Advertising a Product
A store is not permitted to advertise a product unless it already has sufficient stock available to meet reasonably expected demand at the time of the advertisement. This falls under truth-in-advertising laws
If a person in possession of material nonpublic information that he knows to be confidential reveals the information in violation of a fiduciary duty, he is liable for insider trading:
if he does not notify the company that he revealed the information.
Information is Material
There is a substantial likelihood that a reasonable investor would consider it important in making an investment decision.
