​Written by Jesson & Rains attorney, Kelly Rains Jesson

​This is the third installment out of our intellectual property series. The fourth and final article will be about protecting trade secrets and confidential information using contracts.
 
A patent is a federally-issued form of intellectual property protection granted to inventors of unique designs and processes.  The patent prevents other individuals and companies from making or selling the invention for 14 to 20 years.  An inventor must apply for a patent within one year of publicly disclosing the invention.  A patent is public record information, so while the invention is protected, it is not secret.
 
The two main types of patents are utility patents and design patents.  A utility patent is a machine, process, or component part thereof used to make a product.  A design patent is the unique design of the product itself.  The design patent covers only the appearance of the product and not the structural or functional features (that would be a utility patent).  An example of a design patent is a glass soda bottle.  A design patent lasts for fourteen years.
 
A utility patent is the most common type of patent.  In addition to machines, processes, and component parts, utility patents are also issued for inventors of improved existing patents.  The improvement must be non-obvious to a person having ordinary skill in the same area of technology related to the invention.  For example, a person cannot simply change the color of a machine and get approved for a new patent.
 
Utility patents must be useful, serve a legal purpose, and be “novel.”  If a substantially similar process or product has been marketed in the past year, the application will be rejected.   It must be man-made—naturally occurring things cannot be patented.  Also, the product or process must actually work.  Patents will not be issued for ideas, theories, and inventions that do not work. A utility patent lasts for twenty years.
 
Unlike copyrights and trademarks, there are no state versions of patents (only federal) and there is no common law protection.  You do not get a patent simply by inventing something—you must apply and be granted a patent by the federal government.   
 
If you have any questions about protecting your intellectual property, give Jesson & Rains a call!
 

- By Jesson & Rains Associate Attorney, Danielle Nodar

The beginning of a new year lends itself to reflecting on the year that has passed and setting goals for the future. Come January, we are bombarded with information about New Year’s resolutions and implementing plans to help us transform our resolutions from lofty dreams to our reality.  From health goals relating to diet and fitness, financial goals such as saving for retirement or paying off longstanding debt, even decluttering our homes--there is no shortage of information about what we can do to improve our present and plan for our future.
 
However, one area of planning that many people seem to put off is creating an estate plan. Estate planning involves meeting with an attorney to discuss things like your assets and debts and how they could impact your estate plan; how you want your property distributed at your passing; who will administer the probate of your estate; who will handle your financial affairs and medical decisions if your become incapacitated and are no longer able to make those decisions on your own; and other important decisions that could make a lasting impact on your loved ones.
 
Even if you have an estate plan in place, you should meet with your estate planning attorney every three to five years to review any life changes or changes in the law.  Some reasons to update an estate plan are:
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• Births – When you have children, you should update your will and/or trust to 1) appoint a guardian for minor children in the event that you pass away before they reach the age of 18, and 2) provide a plan for your children to inherit your assets. Otherwise, under the law, children can inherit all assets once they reach the age of 18. It is also important to make sure you that are not inadvertently leaving out a new child or grandchild from your estate plan.
• Deaths – You may need to replace any deceased beneficiaries, executors, trustees, powers of attorney, and guardians. This not only applies to all your estate planning documents, but also includes documents where you name a beneficiary, such as retirement accounts or life insurance policies.  If a contingent beneficiary is not named for those products, the money will go into your estate, making it available to creditors.
• New disability or illness – If a beneficiary of your estate plan becomes disabled or ill, special planning can be implemented into your estate plan to ensure that these people are cared for and still retain benefits.  
• Marriage – If you are married, you may have to update your estate plan to include your new spouse. It is a common estate planning myth that when a spouse dies without a will, the other spouse will inherit everything.  Instead, a portion of the estate may go to the deceased’s children or the deceased’s parents instead of the spouse.  We also assist in retitling property in an effort to avoid probate.
• Divorce – If you become divorced, make sure your ex-spouse and his/her family is not inheriting or playing any other role in your estate plan. This also includes reviewing your beneficiary designations, such as retirement accounts or life insurance policies.
• Moving to a new state – If you have moved to a new state, does the new state have beneficial laws to incorporate?
• Buying real property in a second state – You may want to upgrade to a trust to avoid multiple probates in multiple states.
• Changes in assets or debts –For example, if your assets have dramatically increased, you may need to see if estate taxes are now an issue. If your debts have increased, you may need to come up with a different plan to shield your assets from creditors.

 
If you have had any major life changes or just want to ensure that your estate plan is in order, make it a goal for 2019 to plan for your future and the future of your loved ones with estate planning. We can help you to ensure that your property is distributed how and to whom you want it to be distributed and to ensure that you are leaving your family unburdened. 

Happy Holidays to you from Kelly, Danielle, Ed, Cyrena, and Sue!  

By Attorney Kelly Jesson Rains
 
A copyright protects an original work of authorship, whether in writing, video, or audio form.  
 
Like trademarks, a common law copyright is created as soon as the work is authored.   People should use the copyright symbol © to deter would-be infringers.  Also like trademarks, despite the existence of common law protections, there are still numerous reasons for registering federally.  To rely on federal copyright protections (versus state court), the work must be registered.  This is important because federal law provides statutory damages, whereas in state court you might have to prove actual damages, which is difficult.  If a registration application is submitted to the U.S. Copyright Office within five years after first publication of the work, it will be presumed that the copyright is valid.  Finally, registering puts the world on notice that you own the work (and who to contact if someone wants to use the work for a fee).  Copyrights last for the author’s life plus seventy years.
 
Sometimes, the author of the work does not own the copyright.  This is true in two situations:
            1) Work made for hire, and
            2) Work commissioned.
 
These are two very narrow exceptions that are improperly overused. For the “work made for hire” rule to apply, an employee must create the work in the scope of their employment.  This is oftentimes up for interpretation and dispute.  A work that was not created within the scope of a creator’s employment cannot be made into a work made for hire by way of agreement.
 
Specially ordered or commissioned work is limited to the following uses:

• a contribution to a collective work;
• part of a motion picture or other audiovisual work;
• translation;
• supplementary work;
• compilation;
• instructional text, test, or answer material for a test; or
• atlas.

 
Of course, an author can sell a copyright to another person.  If the copyright is assigned or licensed to another, the author may limit the purchaser’s use.
 
While the Digital Millennium Copyright Act (DMCA) did not expand copyright protection, in 1998, it did make available a procedure whereby a person whose copyright is being infringed upon can send a notice to an internet provider, webhost, or search engine who must then take down the offending material.  The law has specifics about what the notice has to include for it to be valid.
 
If you’re interested in getting more information about copyright or other intellectual property protection, please give Jesson & Rains a call.

Happy Birthday Charlotte!

The city of Charlotte celebrates its 250th anniversary on December 3. 
 
Charlotte has two nicknames: The Queen City and The Hornet’s Nest.  The Queen City became a nickname because Charlotte was the name of the German princess Charlotte of Mecklenburg-Strelitz.  In 1761, she became queen when she married the king of England, George III. 
 
The Hornet’s Nest became a nickname during the Revolutionary War when General Cornwallis wrote that Charlotte was a “hornet’s nest of rebellion” after his attempt to occupy the city was prevented by residents.  On May 20, 1775, Charlotte leaders signed the Mecklenburg Declaration of Independence, which helped fuel the efforts that led to the American Revolution (also known as “MecDec” day).  That date can be found on the flag of the state of North Carolina and the state seal.