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Bar Association of Erie County Noonday CLE January 11, 2012 Frank Housh, Download.

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1 Bar Association of Erie County Noonday CLE January 11, 2012 Frank Housh, Download at (blog) The Philistine at Bar 2d Annual Statutory Update: What Came Out of Washington and Albany in 2011




5 Public Laws of 112 th Congress U.S. House of Representatives U.S. Senate

6 America Invents Act of 2011 PL 112-29, signed into law September 26, 2011 patent reform law From Senate Judiciary Committee memo: it takes over three years to get a patent approved in the U.S. American innovators are forced to wait years before they can hire workers and market their inventions. Meanwhile, our competitors are busy developing new products that expand their businesses and grow their economies. This year, for the first time, China is expected to become the worlds number one patent publisher, surpassing the U.S. and Japan in the total and basic number of patents. We cannot expect Americas innovators and job creators to keep pace with the global marketplace with the patent system of the past. We need a system that ensures patent certainty, approves good patents quickly and weeds out bad patents effectively.

7 America Invents Act, (contd) The law will switch U.S. rights to the patent from the present "first-to-invent" system to a "first-to-file" system for patent applications filed on or after March 16, 2013.first-to-inventfirst-to-file First to File is rule everywhere else in world expands the definition of prior art used in determining patentability. retains existing ex parte reexamination,ex parte reexamination adds preissuance submissions by third parties, adds post-grant review.

8 America Invents Act (contd) Tax strategy inventions. Provides that any strategy for reducing, avoiding, or deferring tax liability, whether known or unknown at the time of the invention or application for patent, shall be deemed insufficient to differentiate a claimed invention from the prior art. False marking. Eliminates false marking lawsuits except for ones filed by the U.S. government or filed by a competitor who can prove competitive injury. In addition, marking a product with a patent that formerly covered the product, but has since expired, is no longer a violation.false marking Filing by other than inventor. An entity can file an application on behalf of an inventor who assigned or is under an obligation to assign the invention rights to the entity (or if the entity otherwise has financial interest in the invention), without seeking the inventor's execution of the application. Any patent that issues belongs to the inventor absent a written assignment from the inventor or inventor's estate to the entity. Best mode. While an inventor is still required to set forth the best mode for accomplishing the invention, failure to disclose a best mode is not a basis for invalidating or rendering unenforceable an issued patent. best mode By formally keeping the best mode requirement in the patent law, but by eliminating it as a defense to patent infringement and by therefore making it unenforceable in court, the America Invents Act has left many patent lawyers wondering why the requirement was kept at all.

9 America Invents Act (contd) Prior user rights defense. If an individual/entity begins using an invention ('user') more than a year before a subsequent inventor files for a patent on the same invention, then the user will have the right to continue using the invention in the same way after the subsequent inventor is granted a patent as long as the user did not derive the invention from the subsequent inventor. These prior user rights are limited in scope and transferability, and they also have limited applicability to patents held by universities. Micro-entity. The AIA added a micro-entity status. A micro-entity includes an independent inventor with a previous calendar year gross income of less than 3 times the national median household income who has previously filed no more than four non- provisional patent applications, not including those the inventor was obligated to assign to an employer. A micro-entity also includes a university or an inventor under an obligation to assign the invention to a university. A micro-entity is entitled to a 75% reduction in many of the patent fees payable to the US Patent Office during prosecution of a US patent application. The patent office is expected to develop regulations to identify which fees will be eligible for the reduction and how joint inventors may qualify as a micro-entity.

10 Removal Clarification Act Public Law 112-51 signed into law November 9, 2011 allows Federal officers, under limited conditions, to remove cases filed against them in State court to U.S. District Court for disposition. Purpose to deny State courts the power to hold Federal officers criminally or civilly liable for acts allegedly performed in the execution of their Federal duties. This does not mean Federal officers can break the law; rather, it just means that these cases are transferred to U.S. District Court for consideration. Congress wrote the statute because it deems the right to remove under these conditions essential to the preeminence of the Federal Government on those matters entrusted to it under the Constitution. Federal officers or agents, even Members of Congress, should not be forced to answer in a State forum for conduct asserted in the performance of Federal duties. Willingham v. Morgan, 395 U.S. 402 (1969).

11 Appeal Time Clarification Act PL112-62, signed into law November 29, 2011 codifies a recent amendment to the Federal Rules of Appellate Procedure. Current law allows 60 days to file a notice of appeal for civil cases if the United States or a federal officer is a party; however, it is unclear whether this time period applies if current or former federal employees are sued in an individual capacity in connection to their federal employment. This legislation would clarify that it does.

12 Immigration Application Tolling for Members of the Armed Forces Public Law 112-58, signed into law November 23, 2011 Amends the Immigration and Nationality Act to toll, during active-duty service abroad in the Armed Forces, the periods of time for an alien spouse or petitioning spouse to file a petition and appear for an interview to remove the conditional basis for permanent resident status.

13 Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 PL 112-90, signed into law January 3, 2012 doubles the maximum fine for pipeline safety violations and extends federal safety oversight of gas, oil and other liquid pipelines through 2015. commissions studies to determine if more needs to be done to secure transmission pipelines throughout the system and in more populated areas as well. newly constructed pipelines will be required to include automatic shutoff valves that isolate a section of pipe in event of a rupture, preventing further gas or liquid from escaping.

14 Pipeline Safety, (contd) NY fracking controversy, compulsory integration Keystone XL Pipeline

15 Chapter Laws of 2011 New York Assembly New York Senate

16 Chapter 357: Muzzle Loaded Firearms Muzzle loaded weapons are not firearms and may be possessed by felons Modern muzzle loaded weapons are very efficient In 2007 and 2008 NYSP shot with.50 caliber muzzle-loading weapons.

17 Chapter 361:Pirate Radio Local radio stations often have their programming and signal "bumped off" the air, or drowned out by unofficial, unlicensed "pirate" radio stations that broadcast without FCC approval. adds a new section 190.72 to the penal law which would create the crime of unauthorized radio transmission in the second degree, and make it a class A misdemeanor.

18 Chapter 399: Public Integrity reform Act of 2011 Greater Financial Disclosure: Financial disclosure statements filed with the new Joint Commission on Public Ethics from elected officials will now be posted on the internet and the practice of redacting the monetary values and amounts reported by the filer will be ended. The Act also includes greater and more precise disclosure of financial information by expanding the categories of value used by reporting individuals to disclose the dollar amounts in their financial disclosure statements. The Act requires disclosure of the reporting individual's and his or her firm's certain outside clients and customers doing business with, receiving grants or contracts from, seeking legislation or resolutions from, or involved in cases or proceedings before the State as well as certain of such clients that were brought to the firm by the public official. · Increased Access to Who is Appearing Before the State and Why: The Act establishes a new database of any individual or firm that appears in a representative capacity before any state governmental entity. · Additional Disclosures for Registered Lobbyists: The bill expands lobbying disclosure requirements, including the disclosure by lobbyists of any "reportable business relationships" of more than $1,000 with public officials. It also expands the definition of lobbying to include advocacy to affect the "introduction" of legislation or resolutions, a change that will help to ensure that all relevant lobbying activities are regulated by the new Joint Commission.

19 Ch. 399 (contd) · Forfeiture of Pensions for Public Officials Convicted of a Felony: Certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited in a new civil forfeiture proceeding brought by the Attorney General or the prosecutor who handled the conviction of the official. · A New Joint Commission on Public Ethics: The Joint Commission on Public Ethics will replace the existing Commission on Public Integrity with jurisdiction over all elected state officials and their employees, both executive and legislative, as well as lobbyists. · Clarifying Independent Expenditures For Elections: The Act requires the state board of elections to issue new regulations clarifying disclosure of Independent Expenditures. · Increased Penalties for Violations: The Act substantially increases penalties for violations of the filing requirements and contribution limits in the Election Law, and provides for a special enforcement proceeding in the Supreme Court. The bill also increases penalties for violations of certain provisions of the state's code of Ethics that prohibits conflicts of interest.

20 Ch. 399 (contd) It has the power to investigate both the executive and legislative branches, including elected officials, their employees and lobbyists. It also has the power to subpoena witnesses to testify. The panel can impose penalties on the governor and executive branch employees. JCOPE does not have the power to penalize lawmakers. That falls under the jurisdiction of the Legislative Ethics Commission. Appointees to the commission have fixed, five-year terms. There will be a review of JCOPE in 2015 to see whats working and whats not.

21 Ch. 410: Physical Therapists Must Have a Masters Degree From Memo of Support: the current statutory educational requirement of a bachelor's degree for licensure as a physical therapist was established in 1973. Since then, the profession has advanced and grown, and in recognition of that progress, accrediting bodies have required that physical therapy educational programs be at the master's degree level, and more recently at the doctoral level. New York's statutes have not kept up with these national accrediting standards. This bill will update current licensing laws to more accurately reflect today's educational standards for the profession.

22 Ch. 432: Government has 20 Years to Collect Taxes The acknowledgement or payment on the debt provisions in the CPLR will no longer extend the collection period, and thus, the Department will have 20 years from the first date a warrant could be filed to collect tax liabilities. After this time, the tax liability will not be enforceable and will be extinguished.

23 Ch. 432: (contd) The bill will apply to tax liabilities that could have been warranted before the bill takes effect. Thus, if the 20-year time limit was up at the time the bill takes effect, it would be extinguished and would not be enforceable as of that date. If the 20-year time limit is not up at the time the bill takes effect, then the tax liability could be collected and would not be extinguished until the balance of the 20-year period has expired.

24 Ch. 436: Child Support Codification of Rose v. Moody, 83 N.Y.2d 65 (1993), cert. denied, 511 U.S. 1084. makes the presumption in favor of a minimum order of $25 per month rebuttable by a showing that such an order would be unjust or inappropriate, based upon the ten factors applicable to departures from the child support standards. See Domestic Relations Law §240(1-b)(f); Family Court Act.413(1)(f). Family Court and Supreme Court would thus be authorized to order payment of an amount it deems to be just and appropriate. It would eliminate the proviso that " in no instance shall the court order child support below $25 per month."

25 Ch. 460: Regulation of Occupational Therapy as a Profession The profession has grown tremendously since its first regulation in 1975. The State Education Department has established that an occupational therapist may perform an evaluation without a prescription or referral, but treatment may not begin until a prescription is obtained. This bill will allow for treatment of nonmedical conditions, as defined by the commissioner of education, without the need for a prescription or referral. Occupational Therapy Assistant

26 Ch. 488:Making Certificates of Relief From Disabilities More Available From Memorandum of Support: Certificate can prevent eviction, loss of a job and loss of an occupational license. It can lay the groundwork for re-entry into society, allowing individuals to obtain, for example, licenses essential to employment, which can empower them to make child support payments and break the cycle of poverty. Allows Certificates to be issued at Sentence.

27 Ch. 496: Concussion Management and Awareness Act of 2011 Requires coaches, teachers and other school personnel to be trained about the symptoms of mild traumatic brain injuries and the importance of proper medical treatment. Mandates public education about head injuries Rulemaking by SED and DOH requires the immediate removal of any student who has or who may have suffered a concussion. No student who has or who may have suffered a concussion may return to athletic activities unless the student has been symptom free for at least twenty-four hour and a licensed physician has authorized the student's return.

28 Ch. 529 Generation-Skipping Transfer Tax applicable to estates of decedents dying after December 31, 2009 and before January 1, 2011 amend section 2-1.13 of the Estates, Powers and Trusts Law ("EPTL"), which was added in 2010 in response to the repeal of the Federal estate tax for decedents dying in 2010 and the repeal of the generation-skipping transfer ("GST") tax in 2010. L. 2010, c. 349. Adopts recommendation of Surrogate Court Advisory Committee

29 Ch. 566: Attorneys Fees in Class Actions Flemming v Barnwell Nursing Home and Health Facilities, Inc.,__N.Y.3d__2010 WL 4116615 (Oct. 21, 2010) whether an attorney for an objecting member of the class, whose actions actually benefitted the class, could also receive an award of attorneys' fees. The majority held that the attorney could not receive fees because of the strict wording of rule 909 which limits an award of fees to "representatives of the class."

30 Ch. 596: Autism Treatment Insurance Mandate Amends section 3216 of the Insurance Law to provide for an annual benefit for applied behavior analysis of $45,000 per year per covered person.

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