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Tribal reservations of American Indian Tribes that were pushed aside as Europeans settled in America can be found in a number of areas in Southern California, notably in areas such as in or near the cities of the Coachella Valley such as Palm Springs, Rancho Mirage, Indio and Coachella as well as in or near Anza, Cabazon, Temecula, San Jacinto, El Cajon, Pala, in the counties of Riverside, San Diego as well as in Santa Ynez in the county of Santa Barbara.

 

Unless you have been practicing Indian Tribal Law for some years, it is difficult for most attorneys in the United States to know how Tribal Law works, much less to find useful resources to help explain this unique area of law.

 

Most tribes vest their legislative authority in a tribal council. Some tribes call it by a different name, but the council members are usually elected and for a specific number of years.

 

Most tribal constitutions call for there to be a tribal chairman who is alternatively sometimes called president or governor. Some tribes elect the tribal chairman by a vote of their council. Others elect the tribal chairman by the voting tribal members.

 

Tribal bylaws often state that it is the chairman’s duty to preside over the tribal council. The role or power of the tribal chairman differs from tribe to tribe.

 

Indian tribes also have a long history of tribal courts. Today, most tribal courts administer tribal codes passed by the tribal council and which have been approved at some time by the Secretary of the Interior.

 

Tribal court systems can by highly structured with tribal prosecutors and defense advocates. Others are made up of informal single judges who work only part-time. Many tribes elect their tribal judges, commonly for a fixed set of years.

 

Indian tribes also often have a tribal attorney who often has a large influence on tribal affairs, particularly in dealings with non-tribal parties. The tribal attorney has responsibility to the entire tribe, not to its individual members.

 

Some tribes are incorporated under the provisions of the Indian Reorganization Act. Some tribes have voted to reject application of that Act.

 

Indian Tribes have sovereignty which means the inherent right to govern themselves. Tribes, however, have no authority over non-members on non-Indian fee lands, and no criminal authority over non-Indians anywhere.

 

Tribal sovereignty acts as a shield against state law intrusion onto Indian country. States may not directly tax reservation land or reservation Indians. Tribes enjoy sovereign immunity from suit except for suits by the United States. A tribe does not waive its immunity by bringing an action on its own. A tribe may however waive its sovereign immunity by contract.

 

If you have an American Indian Tribal legal matter of any kind, we have the knowledge and resources to be your California American Indian Lawyers, and California Native American Attorneys. For this reason, be sure to hire a California law firm with American Indian law lawyers who can represent you from Palm Springs, Rancho Cucamonga, Orange County, San Luis Obispo, Laguna Beach, Newport Beach and Huntington Beach, Corona del Mar, Anaheim, Irvine, La Jolla, El Cajon, San Bernardino, Riverside, Santa Barbara, Temecula, Palm Desert, Yorba Linda, Carlsbad, San Diego, Costa Mesa, Westminster, and Murrieta, to Indian Wells and La Quinta.

 

If you have an American Indian Tribal law legal matter of any kind, call the Law Offices of R. Sebastian Gibson, or visit our website at http://www.SebastianGibsonLaw.com and learn how we can assist you. You can also call us to speak directly to Sebastian Gibson on the phone about your legal matter.

When someone dies, people want everything in order. They want their estates to be passed onto their rightful heirs. The Inheritance Law provides the order to which inheritance will be executed. In Germany, the Civil Code regulates this law. Munich lawyers will be able to guide individuals or families to fully how the inheritance law works. Who Deserves the Inheritance? The inheritance law of Germany dictates the orders of inheritance: • First Order – this constitutes the offspring of the deceased. This may include the children, grand children, great grand children, etc. • Second Order – includes the parents and the siblings of the deceased • Third Order – Involves the grandparents, aunts, uncles, cousins, and their issues The right of the spouse of the deceased to inherit an estate is dependent not on any orders but with respect to the fact of marriage. The beneficiaries of the estate will inherit the rights and obligations of the deceased. Lawyers in Munich will be able to explain in detail the time limits to decline or accept an estate as the law dictates. They will also be able to clarify the complexities of the statutory inheritance and how the estate will be shared amongst the beneficiaries. The inheritance law of Germany states that the children of the deceased, even out of wedlock, are first in line. They inherit equal shares of the estate. The order as mentioned above is followed in the event that the deceased does not have any children. The spouse inherits the estate outside the system of orders. Lawyers in Munich will be able to discuss in detail any concerns with regard to the inheritance of the spouse. Inheritance Basics To put everything in order, an individual may formulate his will so that his estate can be distributed accordingly. The law permits also permits a testamentary contract which gives the estate owner the option to distribute his estate without following the statutory orders. The law of Germany recognizes different testaments like simple will, emergency will, mutual will, and testamentary contract. One can be guided by the lawyers in Munich to formulate any of these. Any of these will be valid if it is signed or prepared in front of a notary. It is also legal if it is handwritten and signed by the testator. The testator may nominate an executor of the will. In the event that there is no person nominated to perform the duties, the German Probate Court may assign an administrator. Tax concerns must also be discussed in detail with the lawyers in Munich to know how much will apply based on the amount of the estate.

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The Changes to the United States Prior Art Law Implemented by PL 108-453 Enacted December 10, 2004

by Richard Neifeld

I. Summary

II. Changes To 35 USC 103

III. Analysis

IV. Impact On “action pending … on the date of the enactment of this Act”

V. Impact On Right to an Interference Proceeding

VI. Broadening Claims in Pending Applications

VII. Proactive Action and Agreements Relating to Applications Claiming Similar Subject Matter

VIII. Conclusion

I. Summary

On November 20, 2004, the Congress passed S. 1292. President Bush signed S. 1292 into law as Public Law No: 108-453 (PL 108-453). This is a law reducing the scope of prior art in the United States. The goal of the law is to remove certain restrictions on patenting inventions resulting from collaborative work between different people employed by more than one legal entity. Specifically, PL 108-453 amends 35 USC 103(c) as indicated below.

II. Changes To 35 USC 103

The prior version of 35 USC 103(c) read as follows:

(c) Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the invention was made, owned by the same person or subject to an obligation of assignment to the same person. (Amended Nov. 8, 1984, Public Law 98-622, sec. 103, 98 Stat. 3384; Nov. 1, 1995, Public Law 104-41, sec.1, 109 Stat. 3511.)

The new version of 35 USC 103(c) pursuant to PL 108-453 reads as follows:

(c)(1) Subject matter developed by another person, which qualifies as prior art only under one or more of subsections (e), (f), and (g) of section 102 of this title, shall not preclude patentability under this section where the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.

(2) For purposes of this subsection, subject matter developed by another person and a claimed invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person if–

(A) the claimed invention was made by or on behalf of parties to a joint research agreement that was in effect on or before the date the claimed invention was made;

(B) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and

(C) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint research agreement.

(3) For purposes of paragraph (2), the term “joint research agreement” means a written contract, grant, or cooperative agreement entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the field of the claimed invention.

The effective date provision for PL 108-453 read as follows:

SEC. 3. EFFECTIVE DATE.

(a) IN GENERAL- The amendments made by this Act shall apply to any patent granted on or after the date of the enactment of this Act [sic; on or after December 10, 2004].

(b) SPECIAL RULE- The amendments made by this Act shall not affect any final decision of a court or the United States Patent and Trademark Office rendered before the date of the enactment of this Act [sic; December 10, 2004], and shall not affect the right of any party in any action pending before the United States Patent and Trademark Office or a court on the date of the enactment of this Act [sic; December 10, 2004] to have that party’s rights determined on the basis of the provisions of title 35, United States Code, in effect on the day before the date of the enactment of this Act [sic; December 10, 2004].

III. Analysis

Secret prior art refers to subject matter that is prior art under U.S. law, but that is not publicly disclosed. It includes subject matter meeting the criteria of subsections (e), (f), and (g) of section 102. Those criteria are the filing of a patent application, for 102(e), deriving the patentable invention from another person, for 102(f), and prior secret invention by a third party, for 102(g).

The version of 35 USC 103 in effect prior to December 10, 2004 excluded from the definition of prior art non-anticipating secret prior art, so long as the non-anticipating secret prior art was based upon activity by people subject by contract to assign their inventions to the same legal entity as the named inventor. The revised statute expands the exclusion of subject matter from secret prior art to include any non-anticipating subject matter meeting the following conditions.

1. A Pre-existing Agreement

The assignee of a claimed invention has in place prior to the date the claimed invention was made an agreement “for the performance of experimental, developmental, or research work in the field of the claimed invention” (that is, a joint research agreement).

Thus, a qualifying agreement that may impart immunity may have existed prior to the implementation of the legislation.

2. A Result of Activities Within the Scope of the Agreement

The “claimed invention was made as a result of activities undertaken within the scope of the joint research agreement.”

Thus, the agreement should broadly define the activities that are within “the scope of the joint research agreement.” There will in certain instances be competitive interests requiring the parties to the agreement to draft the agreements with narrow scope. In those types of situations, we can eventually expect litigation over whether the 103(c)(2) exclusion applies, and the decision in such litigation will construe the meaning of terms in the agreements against various fact patterns. In any case, terms of such agreements should be thought out carefully and fully defined in the agreement to minimize the chance of unexpected adverse consequences.

3. The Application Discloses the Parties to the Agreement

The “application … discloses or is amended to disclose the names of the parties to the joint research agreement.”

Since this passage requires amendment of the application, it is debatable whether it would apply to a certificate of correction to an issued patent. The legislative history suggests that a post issuance certificate of correction might be acceptable. However, that contradicts the actual language of the statute. Thus, a party desiring this exclusion in an issued patent, particularly if litigation is contemplated, might have to resort to filing an application to reissue the patent, and then amend the reissue application, to be certain the exclusion applies.

Moreover, it may be possible to file reissue applications for currently issued patents for purpose of adding a 103(c)(2)(C) amendment and also to satisfy the requirement that the [reissue] patent be issued after the December 10, 2004 effective date of PL 108-453.

Generally, any party having such an agreement should promptly file 103(c)(2)(C) amendments in the affected patent applications. Keep in mind that such an amendment could remove prior art that might otherwise arise in discovery in litigation or due diligence against an issued patent. Accordingly, it pays to file a 103(c)(2)(C) amendment whenever the claimed invention arguably meets the other requirements for the exclusion.

IV. Impact On “action pending … on the date of the enactment of this Act”

PL 108-453 is effective for patents granted on or after December 10, 2004. However, there is a special provision respecting ongoing proceedings, which states that the change in 35 USC 103 “shall not affect the right of any party in any action pending before the United States Patent and Trademark Office or a court on the date of the enactment of this Act to have that party’s rights determined on the basis of the provisions of title 35, United States Code, in effect on the day before the date of the enactment of this Act.”

There is a problem with that special provision. The change in 103(c) can only help patentees, so patentees would not want to have the older version of 35 USC 103 apply. Thus, the special effective date provision is not likely to be invoked by patentees. The term “rights” generally refers to property rights, like a patentee’s exclusive rights. Accordingly, it is unclear to whom this provision should relate.

Moreover, the statement “any party … that party’s rights” suggests that this special provision can apply to both or all parties in an action. How will that provision be construed for example when a patentee litigant wants the new 103 applied vis-a-vis a defendant’s defense of invalidity or defense of lack of infringement under the doctrine of equivalents, and the defendant wants the old 103 applied vis-a-vis its defense of invalidity and its defense of lack of infringement under the doctrine of equivalents? The patentee meets the “any party in any action” criteria, as does the defendant. The patentee meets the “rights” provision based upon its patent rights. Does the defendant’s commercial activity infringing the patent amount to a covered “right”. In such actions, which version of 103 applies, and which parties “rights” are superior? If Congress wanted to ensure that the new law would be effective against patents in an ongoing patent litigation, it could have clearly so stated. The special provision on the effective date is not such a clear statement.

This law was clearly partially in response to the judicial construction of 35 USC 102(g) expanding the scope of prior art in Oddzon Products, Inc. v. Just Toys, Inc., 122 F.3d 1396 (Fed. Cir. 1997)(Lourie, J.). However, merely because S. 1292, now PL 108-453, was in response to that situation does not mean that existing defendants in litigation should benefit from the prior version of 35 USC 103 and its interpretation in Oddzon Products, Inc.

The special provision generally would only harm patent applicants, so patent applicants should ignore it and promptly file 103(c)(2)(C) amendments. There may however be an exceedingly rare case where a patent applicant would not want to file a 103(c)(2)(C) amendment because doing so would moot an interference issue that the patent applicant wanted to resolve via an interference proceeding, as discussed below.

V. Impact On Right to an Interference Proceeding

Keep in mind that the USPTO’s position on interference proceedings is that their primary purpose is “to assist the examiner in the examination of a patent application.” JD v. SH, paper No.55, Interference 104,044, (Trial Section of the BPAI, November 11, 1999). Therefore, interference proceedings are only necessary when the existence of a patent precludes the issuance of a pending application. In this regard, note that a party whose application is rejected by a patent which it could remove from prior art by filing a 103(c)(2)(C) amendment, could remove the rejection by filing the103(c)(2)(C) amendment. That action will also likely preclude an interfere proceeding with the patent, at least according to the reasoning in JD v. SH. However, there are situations where the applicant desires to take down the blocking patent instead of removing it from prior art, in which situations the applicant should not file a the103(c)(2)(C) amendment.

With respect for the potential for an interference in situations were both parties to a joint research agreement have filed in their applications and patents 103(c)(2)(C) amendments, an interference is still possible. That is, the interference statutory section, 35 USC 135(a), grants the USPTO discretion when to declare interferences. Moreover, 35 USC 135(a) provides an independent basis for judgement against one party, specifically, lack of priority for a patentable invention, upon which to cancel that party’s claims. Cf. “Viability of the Hilmer Doctrine” Neifeld, 81 JPTOS 544, section III.B (July 1999) (posted at http://www.neifeld.com/hilmer.html#N_11_ ); and In re McKellin, 529 F.2d 1324, 1327, 188 USPQ 428, 432 (CCPA 1976)(“An applicant who has lost an interference is not entitled to claims which correspond to the subject matter of the counts of the interference. A determination of priority of invention adverse to an applicant constitutes the final refusal by the Patent and Trademark Office of the claims involved. 35 USC 135.” Emphasis in the original.) Thus, it is possible that the USPTO would declare an interference in a situation where neither party’s inventive activities are prior art against the other party.

Moreover, the 103(c) exclusion from prior art applies only for non-anticipating prior art. That is, the exclusion does not apply to a patent claim of a first party to the joint research agreement if the inventive activity of the second party to the joint research agreement anticipates the subject matter defined by the claim. Thus, it is still possible for a 103(c)(2)(C) amendment to fail to remove the question of blocking prior art based upon inventive activities of parties to a joint research agreement. In such situations, the facts as to who first invented claimed subject matter may need to be determined via an interference, or if the parties agree to cooperate, to a private investigation and submission of relevant prior art admissions to the USPTO.

In fact, how the USPTO will resolve the question of interference between patents and applications subject to 103(c)(2)(C) rights is an open legal question. Since this is an open legal question, and since 103(c) may still block allowance of desirable claims despite a joint research agreement, parties to such agreements might consider addressing both the issue of interference and blocking 103(c) prior art in their joint research agreements. When might this situation arise? Consider for example a University attempting to derive revenue by licensing a valuable technology when the corporate partner to its related joint research agreement also patented that technology only to block its commercial implementation in favor of an alternative technology. Consider for another example a first party to a joint research agreement that so broadly claim the results of the joint research that one claim is anticipated by the inventive work solely of inventors employed by the other party, and the other party has for whatever reason failed to claim that subject matter. It is certainly far easier to address these types of situations in advance when entering into a joint research agreement than after they occur.

VI. Broadening Claims in Pending Applications

Keep in mind that the change in the law covers pending applications if the foregoing conditions of the joint research agreement existed when the inventions disclosed in the application were made. If pending claims have scope limited to avoid subject matter that at the time the application was filed was 103(c) prior art and which can now be removed from 103(c) prior art by the filing of a 103(c)(2)(C) amendment, consider filing a 103(c)(2)(C) amendment and presenting suitably broader claims.

VII. Proactive Action and Agreements Relating to Applications Claiming Similar Subject Matter

Another set of issues are raised by the change in the law’s impact on applications claiming similar subject matter filed by different parties to a joint research agreement. The PTO specifies

that the duties of disclosure and candor extend to notifying the examiner when the applicant knows that similar claims are presented in different applications, so that the examiner can decide whether to impose a double patenting rejection. The issues relate to both the duty of disclosure and double patenting.

The duty of disclosure obviously extends to similar claims in applications owned by different parties, to the extent that each party knows about the other parties applications. Accordingly, if there is patent application information shared amongst parties to the agreement, the prosecuting patent attorney must be provided with that information to fulfill the 37 CFR 1.56 duties of disclosure and candor to the USPTO.

Another issue is how entities should act to minimize the potential for double patenting rejection damage to their patent portfolios.

For example, if each one of two entities to a joint research agreement files a patent application, and one or both of the applications are subject to double patenting rejections over one another, how should the two entities handle that situation? Note that there now exists no regulation allowing either entity to remove the rejection by filing a terminal disclaimer because the applications are not co-owned! 37 CFR 1.321(c)(3) requires common ownership of both patents or applications for a terminal disclaimer to be effective to remove a double patenting rejection. Accordingly, the parties should contemplate now, actions to take, to avoid this problem.

Such actions might include an agreement to assign all patents rights to one of the two entities, or to assign only those patents in which proper double patenting rejections exist, to one entity, at a suitable time, with a suitable license back to the assigning party. A more sensible action would be to determine ahead of time whom to assign patent applications (with suitable license back) and what each party will claim in the applications to avoid or minimize the possibility of a double patenting rejection. Keep in mind that, even if the patent applicant can defeat a double patenting rejection by filing a suitable terminal disclaimer, the disclaimer may eliminate all potential patent term adjustment. That patent term truncation effect will, generally speaking, be more detrimental the more basic the underlying research, since the more basic the underlying research, the further out in time commercialization occurs.

VIII. Conclusion

PL 108-453 reduces the scope of prior art against qualifying claimed inventions. Legal entities can take advantage of the benefits of PL 108-453 with appropriate actions, and such entities may want to promptly review the research related agreements and take suitable action now.

If you have any other questions or need further information please feel free to contact us via email at www.neifeld.com.

Richard Neifeld,

President, Neifeld IP Law, PC

Probate court is a specialized court which mainly attends to matters regarding the estate of a person who has died. Depending on the state in which you reside, this type of court might also be referred to as Orphans Court, Court of Equity, Court of Ordinary or Surrogate Court.

The primary function of Probate Court is to make certain the assets of the decedent are properly disbursed to beneficiaries. A probate judge oversees the estate to enforce directives left by the decedent in their Last Will and Testament.

If a person dies Intestate (without leaving a Will), the probate judge assigns someone to administer the estate. Typically, this is a family member. However, in cases where no family members exist or cannot be located, the judge can authorize a court appointed estate executor.

Probate courts came into existence in the United State in 1784, with the first court established in Massachusetts. While several amendments have been made to the Constitution in regard to the authority of probate court, its main function has always been to provide distribution of assets and enforce equity law.

Equity law refers to any order which directs an individual to act or refrain from acting. The difference between equity law and laws regulated by courts of law is that court regulated laws pertain to legal doctrines or statutes, while equity laws are regulated by general guides known as “maxims of equity.”

Within the United States, probate laws are regulated by each individual state. Although these laws vary from state to state, the vast majority require a decedent’s estate to be overseen by an appointed estate executor or administrator. Estate executors are responsible for filing necessary documents including inventory, accounting and tax forms and the distribution of probatable assets to beneficiaries and heirs.

In addition to estate administration, probate courts oversee cases which require the enforcement of equity law. Common equity law cases include the institution of guardianship for an individual found to be incompetent of handling their affairs. Probate courts also oversee involuntary commitment of mentally ill patients to a state hospital.

Adoptions are oftentimes handled through the probate court system. Generally, individuals who engage in the adoption of a minor child are assigned an Assessor who will visit the home and gather information about the adoptive parents and living conditions. In most states it is mandatory for adoptive parents to appear in Probate Court for the final hearing.

Oftentimes, birth certificates are kept on file through the Probate Court. Depending on the state and jurisdiction of the probate court, individuals seeking information about unrecorded births, lost or destroyed birth certificates, or certificates which have not been properly or accurately files must contact the Probate Court to obtain or change information.

Probate courts also oversee applications for legal changes of name and marriage licenses. Typically, there is a nominal fee charged at filing and the process usually takes four to six weeks.

Last, but not least, probate courts oversee civil actions relating to probate including contesting of a Will, determination of beneficiaries, and presumption of death. Although most cases presented in probate court do not require a jury, civil action cases typically require a jury trial for proper disposition.

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These regulations comprise Royal Decrees, Ministerial Regulations, Notifications of Directors General, as well as less formal policies and procedures followed by departments within the Thai government. The policies have not passed through the formal legal processes, but as a practical matter can be as significant as an Act of Parliament for one carrying out business in Thailand.

The central Thai law for business and much more is the Thai Civil and Commercial Code (“TCCC”). The TCCC specifies general principles and particular rules for the gamut of civil law issues influencing businesses and individuals. Some of the topics of special attention to businesses comprise company and partnership law, contracts, sales, obligations, unlawful acts (torts, such as liability for negligence or intentional harm), property, mortgage and other forms of loan security, leases and agency. For individuals, the TCCC accounts for marriage, divorce, wills and estate administration, and parental rights and duties.

The TCCC became Thai law in 1925. Notwithstanding regular and sometimes dramatic changes of government and constitutions in Thailand, the TCCC has resisted admirably, delivering a consistent legal framework and structure during otherwise turbulent times. The TCCC contains a few peculiarities that might interest a foreigner as, well, foreign, but for the most part the TCCC specifies legal principles common to most capitalist countries.

The French Civil Code was used as the beginning point for the TCCC, with Japanese, English, German and American legal scholars giving substantial input to the Thai law authorities at the time of drafting. While some contentious issues are surfacing when one considers the details, the basics of Thai law are consistent with the laws of business prevailing from Tokyo to Toledo.

According to the Thai judicial system, a trial court in Thailand is not influenced by prior court rulings when it settles an issue under the TCCC, or any other Thai law. Every case appearing before a Thai trial court is subject to the trial court judge’s personal interpretation of the plain meaning of the applicable laws. Since the Thai laws, by necessity, are often not particular and sometimes not even plain, forecasting results on specific issues is sometimes an uncertain science. Still, the language of the TCCC is usually acceptable enough, and earlier court rulings – especially those of the Thai Supreme Court -act as reasonable guidelines for interpreting less certain provisions.

The TCCC is available across the country in English translation. The standard translation is the one done by late Professor Kamol Sandhikshetrin. While the TCCC is the central Thai law, there are undoubtedly many specific acts of significance when doing business in Thailand. One must have a clear idea about those specific acts before starting to do business in Thailand.

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Dealing breach of contracts

 

Every one of us, in some way or the other enters into a contract with another person for many reasons whether as consumer buying a commodity or as a tenant for some lease of property, or as a businessperson in their frequent business dealings or as a professional in rendering its services. These contractual engagements are customary endeavor for all of us people, whether orally made or in writing.

 

With these, contracts are indeed a valuable tool for us, be for our security and convenience. However, the sad part though, that despite the normal contractual affairs that we engaged into, there are still considerable numbers of people who have no real knowledge about contracts, maybe as a whole, or in some important aspects of their specific contractual arrangements, including contractual breaches and law.

 

These concerns are something to wary about, as it is logically all-important for one to learn the constitutive matters involved in their contractual engagement.

 

Thus, it would be worthwhile to illuminate some aspect of contracts, the respective laws that sanctioned it, its remedies in case of breach and lawsuits.

 

Contracts, discussion:

 

Contracts

 

Contract is a document that is sanctioned by law that contains a legally binding agreement between parties whether to do or not do something. Some source defined contract as something that involves “an exchange of promises between two or more parties to do or refrain from doing an act, which is enforceable in a court of law”.

 

Contract can be entered either orally or written, but for convenience and security of the parties, it would be perfect and preferred that agreements be set out in writing.

 

Contract laws

 

Each state and jurisdictions has its own versions of contract laws enforced within their territory.

 

These state contract laws thus created will usually govern contracts or agreement entered between the parties within their jurisdictional boundaries. But in a more complicated business deal, contract may be governed by one of two types of state law.

 

Breach of contract, explanation

 

Breach of contract is a legal term that pertains to circumstances where one party to a contract fails to perform his undertakings, whether deliberately or carelessly, or due to someone else’s interference, in the legally binding agreement.

 

A party’s failure or breach in fulfilling an end under a contract has legal consequences, which can come in varied forms like lawsuits for contractual breaches, damages, or suits for specific performance or reformation or for rescission.

 

Breach of contract lawsuits

 

In Breach of contract lawsuits, it usually involves the determination of whether a party has incurred damages. The issue of damages is an important element in this kind of litigation, though the damages due to a party when there is a contract breach are relatively different and is dependent to several factors.

 

Not all contract breaches are enforceable through the guise of litigation, as immaterial breaches can be cured by some other medium, outside lawsuits.

 

However, material or substantial breaches on the other hand necessitate lawsuits, as it affects the contract as a whole and that contract damages are apparent- the presence of contract killers.

 

Remedies in Material Contract Breaches

 

When material contract breach is committed by one party, the other party to the agreement is entitled to remedies under the law.

 

The main remedies for a breach of contract are:

 

(1) Damages,

comprising of compensatory, nominal, punitive and exemplary damages

 

(2) Specific performance,

Alternative remedies that can be availed when after assessment by a Contract Lawyer, damages are inadequate as a legal remedy. It is regularly referred to as an order of the court that requires a party to perform a specific act, usually what is stated in a contract.

 

(3) Cancellation

A legal remedy in contractual breaches, which works in voiding a contract relieving all parties on their obligations and undertakings under the agreement. This remedy is available to the non-breaching party.

 

(4) Restitution

The legal remedy of restitution is primarily a gains-based recovery, where the non-breaching party who has parted or given a benefit to the breaching party can ask the court to put them back in their former position prior to the breach.

 

Irrespective of remedies chosen and depending on what remedy is applicable to your case, it is paramount that in taking any of these Breach of Contract remedies, a contract Attorney shall be wage. These matters are all too complex and intricate that requires lawyer’s assistance and help. The Attorney with its experience and qualification can offer valued assistance in the hurdles of your breach of contract predicaments.

Our experienced Los Angeles corporate and business lawyers are familiar with issues such as breach of contract laws. You can log on to our website and avail of our free case analysis.

 

 

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Data Theft in Cyber Space – Issues and Laws

The rapid development of Information technology poses new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing menace of “Data Theft”. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent.

 

Data as a valuable asset

Data is a valuable asset in this modern era of Information Technology (IT).  Data is an important raw-material for Call Centers and I.T. Companies. Data has also become an important tool and weapon for Corporates to capture larger market shares. Due to the importance of Data in this new era, its security has become a major issue with the I.T. industry.  The piracy of data is a threat, faced by the I.T. players, who spend millions to compile or buy data from the market.  Their profits depend upon the security of their Data. 

 

Issues

The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another head ache. However the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.           

 

Does India have sufficient Laws?

The problem of data theft which has emerged as one of the major cyber crimes worldwide has attracted little attention of law makers in India. Unlike U.K which has The Data Protection Act, 1984 there is no specific legislation in India to tackle this problem, though India boasts of its Information Technology Act, 2000 to address the ever growing menace of cyber crimes, including data theft. The truth is that our IT Act, 2000 is not well equipped to tackle such crimes. The various provisions of the IT Act, 2000 which deal with the problem to some extent are briefly discussed below.

Section 43:- This section provides protection against destruction and unauthorized access of the computer system by imposing heavy penalty up to one crore. The unauthorized downloading, extraction and copying of data are also covered under this section. Clause ‘C’ of this section imposes penalty for unauthorized introduction of computer viruses of contaminants. Clause ‘G’ provides penalties for assisting the unauthorized access.

Section 65:- This section provides for computer source code. If anyone knowingly or intentionally conceals, destroys, alters or causes another to do as such shall have to suffer imprisonment of up to 3 years or fine up to 2 lakh rupees. Thus protection has been provided against tampering of computer source documents.

Section 66:- Protection against hacking has been provided under this section. As per this section, hacking is defined as any act with an intention to cause wrongful loss or damage to any person or with the knowledge that wrongful loss or damage will be caused to any person and information residing in a computer resource must be either destroyed, deleted, altered or its value and utility get diminished. This section imposes the penalty of imprisonment of up to three years or fine up to two lakh rupees or both on the hacker.

Section 70:- This section provides protection to the data stored in the protected system. Protected systems are those computers, computer system or computer network to which the appropriate government, by issuing gazette information in the official gazette, declared it as a protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.

Section 72:- This section provides protection against breach of confidentiality and privacy of the data. As per this, any person upon whom powers have been conferred under IT Act and allied rules to secure access to any electronic record, book, register, correspondence, information document of other material discloses it to any other person, shall be punished with imprisonment which may extend to two years or with fine which may extend to one lakh rupees or both.

 

Can Data Theft be covered under IPC?

Section 378 of the Indian Penal Code, 1860 defines ‘Theft’ as follows:-

Theft – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.

 Section 22 of I.P.C., 1860 defines “movable property” as follows:-

            “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”

            Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of “Theft”.  However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property.  But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC. 

 “Data”, in its intangible form, can at best be put at par with electricity.  The question whether electricity could be stolen, arose before the Hon’ble Supreme Court in the case “Avtar Singh vs. State of Punjab” (AIR 1965 SC 666).  Answering the question, the Supreme Court held that electricity is not a movable property, hence, is not covered under the definition of ‘Theft’ under Section 378 IPC.  However, since Section 39 of the Electricity Act extended Section 378 IPC to apply to electricity, so it so became specifically covered within the meaning of “Theft”. It is therefore imperative that a provision like in the Electricity Act be inserted in the IT Act, 2000 to extend the application of section 378 IPC to data theft specifically.  

 

What do we need and why do we need?

It is imperative in today’s world that an emerging IT super power like India has a comprehensive legislation to protect its booming IT and BPO Industries (worst affected industries) against such crimes. Though the IT Act may appear sufficient in this regard but it is not comprehensive enough to tackle the minute technological intricacies involved in such a crime which leaves loopholes in the law and the culprits get away easily. Since this problem is not confined to one nation and has international dimensions, India must look forward to be a signatory to any international convention or treaty in this regard. Also it high time that our national police organizations are trained to deal with such crimes.    

 

If you think your car might be a “lemon,” start by doing a quick checklist of the problems.

So, if your car makes odd noises, but otherwise drives just fine, you might not have a car that falls under your state’s Lemon Law. But, if you are having major problems, like with the engine, drive axle, brakes, steering or radiator, you might want to start a paper trail. You could have a lemon.

With any issues you might be having, check your car service contract first. Give the manufacturer an opportunity to make repairs or corrections – this can be up to 3 or 4 attempts to fix a problem. At this point, a Lemon Law attorney may not be required.

However, if you are experiencing major defects with your car, the most important thing you can do is keep all receipts and records concerning your vehicle. Be sure you have a copy of the car warranty in a safe place. Keep all receipts concerning repairs that have been made to your vehicle. You might also want to consider keeping a log or notebook that contains all of this relevant information, including the number of days as a running tally that it was kept in the shop for a related problem. Start to research the Lemon Law in your state.

You may also want to research whether any ‘service bulletins’ have been issued for your make and model of car (this can be accomplished with a simple Google search). Do your homework, copy any information you find and put it in your notebook. Keep logs, as you may need this information later on in the event that you need to make a claim under your state’s Lemon Law.

In most states, the Lemon Law provides a legal remedy for customers who purchase a car that turns out to be a lemon. Dealers are required to give you a written car warranty under which a dealer must put right, free of charge, any defects in covered parts. In some cases, the dealer may have the option to reimburse you for the sensible cost of repairs; check your car service contract to see if this applies to you.

But if your car needs excessive repairs, start researching the Lemon Law statutes in your state. Many problems during the car guarantee period may not constitute a defect, but one major defect might be a breach of the Lemon Law. Note the dates of all repairs to your car in a notebook, and how long your car was “in the shop” and “off the road.” Make the receipts for repairs in a safe place. At this point you may want to look into finding a Lemon Law attorney in your state.

If you think you might be driving a lemon, gather up all of your paperwork. Become familiar with your state’s Lemon Law statute. Compile a list of Lemon Law attorneys. Check with the Attorney General’s office in your state for more information on the precise statutes.

Besides the car warranty, be sure you have each and every work order performed on your car, as well as any service bulletins issued that may relate to the problem or problems you’re having. Nearly every Lemon Law statute will include a list of records that are important to keep. Any reports or correspondence you’ve received from the dealer will also be important in case you decide to file a claim under your state’s Lemon Law.

It is a long paper trail, but if kept effectively, you will know rather quickly whether you are dealing with a chronically ‘sick’ car, or just normal car repairs.

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