Why Patent Now?

WHY PATENT NOW?

An idea may either be locked up as a trade secret or locked out in the public domain when it is not patented.  The purpose and benefit of patenting is two-fold.  It is a quid pro quo system between the inventor and the public where protection is offered in exchange for disclosure.  The intention of our patent system is to create a safe environment for which knowledge and information may be extracted out of secrecy, enabled for private enterprise and commercialization, and ultimately added to the body of public knowledge for future ingenuity.  The protection afforded by patents enable an inventor to freely disclose an idea in the commercial and public arena based exclusive rights derived from the patent.  The current life of protection for utility patents in the United States is 20 years from the earliest filing date of a U.S. application to which priority is claimed and 14 years from the date of issue for design patents.    

The current patent system in the United States is a “first to invent” system (subject to change on March 16, 2013 via the America Invents Act, enacted Sept. 16, 2011).  That is, the first inventor to conceive and develop an invention theoretically has a right of priority.  However, typically the first inventor to file an application will have the first chance at the apple unless priority becomes an issue.  Thus, the first to file an application in compliance with all other rules enjoys the presumption as the first to conceive.  Therefore, it is always best practice to be the first to file on an invention.      

You may want to start the patent process now if you have a conceived invention that you hope to commercialize.  There are many critical elements and dates that come into play which may either positively or negatively affect the development and marketing of your invention.  Therefore, your product development and marketing strategy must be closely tied in with your patenting strategy.  You need not have a final prototype before consulting with attorney or to initiate the patent process.  In fact, it is advisable to start the process early by conducting a patentability search at the initial stages of product development.  What you learn from the current art in the area may affect how you develop your final product.  Even if the invention is discovered to be non-patentable in light of the existing art, you may still be able to capitalize on the idea should all relevant patents be expired on the invention.  Before investing significant time and money on a new concept, it is advisable to consult with a patent advisor as it affects the determination of your overall strategies.       

Current U.S. patent law provides specific time limitations and grace periods for patentability according to the novelty provisions of 35 U.S.C. 102.  It is important to keep record of dates of disclosure, invention and application filing to ensure timely action is continually taken during patent prosecution and during the commercialization of the invention.  It will be necessary to consult with a patent expert to determine less obvious patent limitations and complicated filing issues related to your specific invention.  It is not advisable to prosecute a patent on your own without assistance of an expert. 

The discussions provided in this website are not intended to serve as legal advice and should not be interpreted in that way.  Each individual invention has its own unique set of issues requiring specialized attention and research by a patent expert. 

Life Planning and Estate Planning: Big Picture Answers to the Question Why?

LIFE AND ESTATE PLANNING:  

BIG PICTURE ANSWERS TO THE QUESTION WHY?

What and Why?

Many people fail to plan for emergency events until it’s too late.  When you find yourself in crisis, you need to feel secure knowing that your personal, financial and medical affairs will be managed according to your best interest and wishes.  An estate plan allows you to voice your preference on how your personal and financial affairs should be managed upon your death.  A life plan provides instructions and guidance on these matters when you become physically or mentally unable to handle them yourself.  The purpose of a good estate and life plan is to ensure your own peace of mind and the security of your family after an emergency has occurred. 

Health Care Agents & Durable Powers of Attorney

Your health care agent or durable power of attorney is the most important person advocating for you when you are no longer able to care for yourself.  In Wisconsin, family members are not automatically authorized to make medical decisions for you.  Without a properly executed durable power of attorney, the matter would go to court where a legal guardian would be assigned.  This process can take days to months.  To avoid any delay in care, you should have an agent named before any need for such arises.  At a minimum, one should be named while you continue with your life and estate planning. 

Health Care Directives

The health care directive is important in determining the type of medical care you receive.  It is your opportunity to voice your choice of care.  You may have personal, cultural or religious reasons for your choice of care.  Your wishes and the reasons for them must be stated clearly in your directive to avoid any confusion.  Health care directives are activated only upon the signature of two doctors who have diagnosed incapacity.  As you prepare your health care directive, take care to consult with a medical professional to better understand the details and consequences of each medical treatment you may choose to opt in or out of.

Dying Without A Will

What happens if you’ve failed to prepare a will before passing?  This is called dying intestate, or dying without a will.  Every State within the United States has its own intestate laws.  When a person dies intestate, the local court of jurisdiction will intervene and determine by law how the estate will be managed and divided.  Having a will in place will better ensure that your property and family affairs will be managed and divided according to your own personal preference. 

Cost Savings

Another benefit to having a good estate plan is cost saving. You can creatively minimize taxes and cost with a well structured estate plan.  Trust accounts are popular tax minimizing tools.  Life time gifting is another easy method.  How you incorporate any particular method or tool in your estate plan will depend on the size or complexity of your estate and your specific concerns.  The right plan for you would preserve the most value of your estate, adequately care for your spouse and children, minimize taxes to your beneficiaries and benefit more than one generation of your family.

Mandatory Parenting Classes?

I recently ran across an interesting legal provision within a local paternity stipulation and order.  The original stipulation was drafted by the local child support agency and offered to interested parents.  The provision reads as follows: "[t]he Court may not hear any Motions regarding a modification or enforcement of the Order unless the parenting requesting the modification or enforcement has successfully participated in this class and a certificate attesting of which has been filed with the Court." 

 

The Stipulation referenced Sec. 767.15 regarding parenting classes but this section doesn't exist in the current body of law.  The current statute regarding parenting classes is Sec. 767.401which is divided in subsections (1) and (2).  Subsection (1) seems to be focused on more tailored "programs" addressing specific needs of individual families while subsection (2) refers to general court approved education classes.  I interpret the "Remember the Children" course to be a generic court approved course falling within the subsection (2) category of parenting classes.  If I am correct, then with regards to attendance (or lack thereof) of this class, subsection (2)(b) applies.  Subsection (2)(b) says that a court "may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however the court may refuse to hear a custody or physical placement motion of a party who refuses to attend the a class ordered under this subsection." 

 

As I understand it, a paternity Stipulation may order the parents to attend the "Remember the Children" program in lieu of a motion contesting placement and custody.  The statute does not forbid the filing of a motion or even a hearing on the matter prior to completion of the Remember the Children class.  In fact, it prohibits the court from requiring attendance as a condition for final judgment or order.  However, if the parties are ordered to take the class and chooses to act contemptuously by actively refusing to attend, then the court may refuse the motion...not on the failure to attend but on the contemptuous act of refusing to follow court order. 

 

Coming back to the language in the above quoted parenting stipulation, I believe that the language violates Sec. 767.401(2)(b).  “The Court may not hear any Motions regarding a modification or enforcement of the Order unless the parenting requesting the modification or enforcement has successfully participated in this class and a certificate attesting of which has been filed with the Court.”  Here, it conditions the Court's ability to entertain a motion and render judgment on completion of the Remember the Children requirement.  Further, the stipulation and order being signed by the Court Commissioner effectively gives the Commissioner power to override the Circuit Court Judge's subject matter jurisdiction to determine for him or herself whether or not to deny the motion.  Whether to accept a motion and hear testimony prior to the completition of the course is a discretion reserved for the Circuit Court Judge.  It should not be denied prospectively by the Commissioner.    

 

The harm arises in this situation when a party files a motion on a placement or custody matter.  The motion is accepted by the court.  A hearing is held and the opposing party invokes this specific language, arguing that the matter is not ripe for hearing.  The motion is dismissed by the judge on grounds of ripeness, pending attendance of the required course.  This language creates an unnecessary and unintended barrier in the general procedural.  I think that Sec. 767.401(2) is meant to have a more facilitative function than to act as a gatekeeper rule.  The result to the parties with this type of interpretation by the court is lost of time, extended period of injury in enforcement issues, and financial loss.  

 

Time will tell how this issue holds out in court. 

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Welcome to Legal Ease Cafe, a blog dedicated to the exploration of legal issues from the mundane to the obscure.  This site is brought to you by the Blogger.com and the Law Office of Mandy Tran Garrels, LLC, a general service practice located in the downtown heart of Sheboygan County, Wisconsin. 

As a young mother, an attorney and a product of Gen-Y, I can't help my desire to seek the exciting, the inspiring and the innovating gems and tid-bits in life.  This blog will focus on those brain teaser questions within the law in hopes of taking the local practice to a different level, possible to its keel.