Startup

CES 2018 and The Future of IP

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The Consumer Technology Association is holding their annual Consumer Electronics Show (CES 2018) next week in Las Vegas from January 9th – 12th. While the media is captivated with reports of self-driving cars, artificial intelligence, augmented reality headsets and smart appliances, CES is also a highly anticipated event for intellectual property (IP) law.

Matthew Burr at RWR Legal works in IP law and with start-ups, where he fuses his interest in technology and science to advise innovators, entrepreneurs and start-up companies. The world of law can be a complicated place when it comes to intellectual property and technology, especially without proper guidance.

“The advent of powerful home computers in the 80s and 90s created a crisis in intellectual property law. All the microelectronics are tangible inventions, but the software you programmed a machine with was hard to categorize,” says Burr. “Is it an invention, copyright, or a trade secret?”

Some early technology patents stretched the definition of innovation (see US 544036 “Method for exercising a cat”), but in the recent years, the law has begun to sort itself out. Burr says we’ve reached a point where merely doing something with technology doesn’t mean it can be patented.

“Just writing a phone app doesn’t make it patentable. It has to do something extraordinary.”

Some of the new technologies that interest Burr are those that have come to prominence in the past two years, particularly virtual reality (VR) and biomedical advancements. These developments have implications for CES 2018 and beyond.

“Virtual and augmented reality headsets have been surprising to me, in the last two years especially. Google, Microsoft and Facebook have gotten in the VR headset game, and I’m very curious to see how successful that will be. A lot of resources are being poured into consumer versions of VR,” says Burr. “Biomedical technology is another one I keep my eye on, and there have been jaw dropping advances in the last 18 months, especially gene editing technology, like CRISPR.”

As technology advances and becomes more complicated, the law surrounding it will almost certainly become more complicated as well. Lawyers like Matt Burr, and the team at RWR Legal, are ready to expertly guide tech companies on IP law.

Overtime News

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When an employee is considered “exempt” per the Fair Labor Standards Act (FLSA), this means that you as the employer do not have to pay overtime. Today, an executive, administrative or professional employee can only be considered exempt from overtime if he or she is paid at least $455 per week or $23,660 per year, and meets certain other tests. If this seems like a low threshold, former President Barack Obama agreed with you, and under the Obama administration, the Department of Labor (DOL) was directed to update and modernize the regulations governing this exemption, and issued a rule that was to take effect December 1, 2016.  According to a recent Fortune magazine article, the rule “would have doubled to $47,500 the maximum salary a worker [could] earn and still be eligible for mandatory overtime pay. The new threshold would have been the first significant change in four decades.” 1)

Struck Down

However, on November 22, 2016, Texas U.S. District Court Judge Amos Mazzant—coincidentally appointed by President Obama—granted a preliminary injunction in a lawsuit filed by an alliance of 21 states and several industry groups that effectively blocked the proposed rule. Therefore, the old DOL standard still applies, and under the so-called “white-collar overtime exemption,” you can avoid paying overtime in many situations.

But Wait

While a district court preliminary injunction can at times be a death sentence for a rule, it is not certain how the Trump administration feels about the issue, and it may support a rise in the minimum salary level. If this happens, employer implications could be significant.

Be Ready

In addition to the potential increase in minimum salary, employers must always be ready to demonstrate that employees they designate as “exempt” meet one of the “white collar” or other exemptions, and demonstrate that workers that they designate as “independent contractors” are not disguised “employees” for purposes of the law.  They must also keep appropriate time records for all non-exempt employees.  Failure to comply with the FSLA and DOL regulations can be costly. If only one of your employees becomes disgruntled, believes they were not paid in accordance with the overtime rules, and decides to sue, that can be the start of a collective action where other “similarly situated” employees can join the lawsuit against you after it has been filed.  Defending a lawsuit can quickly become costly, and if you lose, you could be forced to remit back pay along with attorney fees, liquidated damages and court costs in some cases.

We Are Here to Help

If you do have a compliance question, or if you would like a review of your compensation policies be sure to email or call us at 512-320-0601. We are a full-service startup-centric law firm well equipped to handle your needs.

 

LEGAL DISCLAIMER: This article is not intended to be, nor may it be used as, legal advice or tax advice.  This article shall be used solely for general, non-directed informational purposes.  No attorney-client relationship has been formed by virtue of this article and Ressler + Wynne Ressler, PC has in no way agreed or consented to provide you with legal representation by virtue of this article.

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