ALC Donut Chart-2

Amateur Life Coach: Should I eat this doughnut?

James J. Bell, ICLEF's Amateur Life Coach

 

 

 

 

 

Dear ALC:

Should I eat this donut?

Sincerely,
Befuddled in Bedford

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Dear Befuddled:

There are topics that are easy for the Lifecoach to explain (like electromagnetic field theory, thermodynamics and One Direction.) But you’ve raised an issue requiring more than mere words. The flow chart below contains the answers to all the issues, sub-issues, controversies and sub-plots that your problem present.

ALC Donut Chart-2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I’m the Amateur Lifecoach and I hope this helps.

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James focuses his practice in the areas of criminal defense; attorneys discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. As of January 2013, he began serving as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!”

Follow James on Twitter @jamesjbell or the Amateur Lifecoach at

Questions for the amateur life coach? Email them to scottking@iclef.org

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Amateur Life Coach1 Comment

I.P. Blog: Indiana Trade Secret Law: Think Tank’s Info Was Not a Trade Secret as a Matter of Law

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Indianapolis, Indiana – The Court of Appeals of Indiana affirmed the directed verdict of Special Judge William E. Alexa of Porter Superior Court. Writing for the Indiana appellate court, Judge John Baker concluded that the trial court had not erred in ruling that Defendants’ information was insufficiently private to constitute trade secrets.

Appellant-Plaintiff Think Tank Software Development Corporation, d/b/a Think Tank Networking Technologies Group and Think Tank Information Systems (“Think Tank”) is engaged in computer-related business activities, including systems and network engineering, problem solving, systems design, implementation, sales, client training, and computer maintenance. During 2001 and 2002, multiple employees left Think Tank and joined its competitor, Chester, Inc.

In 2002, Think Tank sued Chester as well as former Think Tank employees Mike Heinhold, John Mario, Joel Parker, Thomas Guelinas, Jon Meyer, Daniel Curry, Eric M. Wojciechoswki, Michael Gee, Philip Ryan Turner and Carl Zuhl alleging:

1) breach of the covenant not to compete,
2) breach of the confidentiality clause,
3) breach of the agreement not to solicit its employees for other work,
4) tortious interference with contracts,
5) misappropriation of trade secrets,
6) tortious interference with business relationships,
7) unjust enrichment, and
8) defamation. Think Tank also included a claim for unfair competition against Chester.

After much litigation, including two prior appeals to the Indiana Court of Appeals, this Indiana trade secret lawsuit was again heard by the trial court on the remaining claims: misappropriation of trade secrets, tortious interference with contracts, and breach of the covenant not to compete and confidentiality provisions.

The most interesting of the claims in this lawsuit is Think Tank’s assertion of misappropriation of trade secrets. Defendants moved for a directed verdict on that count, as well as all other claims against them. The trial court granted the directed verdict on Think Tank’s claim for misappropriation of trade secrets, reasoning that, “[it] is a question of law for the Court relative to what is and what is not a trade secret. Plaintiff has failed to show that the information obtained was ever, in law, a trade secret.”

Shortly after this ruling, Think Tank sought review a third time from the Indiana Court of Appeals. It claimed that its trade secrets included:

1) the nature and design of its technical solutions;
2) the design of its customers’ computer systems;
3) pricing; and
4) customer identities. Think Tank further argued that the trial court could not determine as a matter of law whether information was a trade secret under Indiana Code section 24-2-3-2, which defines a trade secret as: information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The Indiana appellate court declined to address Think Tank’s argument whether a trial court could determine as a matter of law whether information was a trade secret under Indiana law. However, it concluded that Think Tank had failed in its burden to avoid the directed verdict: “as a matter of law, Think Tank failed to produce enough evidence to allow a reasonable fact finder to determine that the proffered information was trade secrets.” Specifically, it found that Think Tank failed to show that any of the information alleged to be trade secrets was not generally known to or ascertainable by the public.

The appellate court agreed with the Indiana trial court that:
1) the computer certifications and intellectual capital that Think Tank possessed was readily available information;
2) knowledge of customers’ computer systems and current or future needs was readily ascertainable, as such information belonged to the customers in question; and
3) pricing information did not constitute a trade secret, as it too was readily available from the customers. Thus, the information was not a trade secret.

The Indiana appellate court continued that Think Tank appeared not to be trying to protect its trade secrets, but instead to prevent competition. Such a goal, the court said, might be effectuated by a non-competition agreement. However, the use of Indiana legislation designed to protect trade secrets could not properly be stretched to hinder the use of information that appeared to be generally known or readily obtained from another source.

This Indiana trade secret litigation was assigned Case No. 64A03-1404-PL-134. The opinion was written by Judge Baker of the Indiana Court of Appeals. Chief Judge Vaidik and Judge May concurred.

The Opinion

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By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Intellectual Property Blog0 Comments

Negotiation Blog: Don’t Negotiate in These Situations!

Notes on Negotiations
By Marty Latz, Latz Negotiation Institute

I have been accused by my wife on occasion of negotiating too much – and she is right. Even though I enjoy the process immensely, sometimes I spend too much time and effort trying to get the absolute best deal when I might be better off just walking away or graciously accepting.

I was thus particularly interested in a recent Harvard Negotiation newsletter piece describing four situations when you should not negotiate (which originally appeared in the book Negotiation Genius, by Deepak Malhotra and Max Bazerman). Here they are, along with my thoughts on each.

1. Not worth your time.
Anyone who has ever hired a lawyer or paid someone an hourly rate understands that time is money.

In the negotiation world, time is also money and has a unique value to each individual. Everyone has a limited amount of time in life, so use it wisely. Ask yourself at the beginning of possible negotiations: is your preferred outcome (your goal) worth the likely time involved? If so, go for it. If not, don’t.

2. When your leverage is super weak.
The day after I graduated college I was driving from Wisconsin to Washington, DC when my car broke down in the middle of Ohio. After getting towed to the one car repair facility in the closest town, I was told I needed to replace my engine.

I was in a really tough spot. I was on crutches from knee surgery, had a job interview the next day in DC, and there was one cab in town that could get me to the airport 90 minutes away for the last flight that day to DC. And time was running out to make that flight.

Bottom line – my leverage was super weak as I really needed to get to DC that day, I had no good alternative to having them fix my car, and they knew I was desperate (they knew the cabbie).

So when I got an estimate to fix my car – while I asked for a discount by appealing to his sense of fairness as I figured it didn’t cost me anything to ask – I basically just accepted his offer.

Sometimes it’s better to just recognize your weak leverage and appeal to your counterpart’s sense of fairness.

3. When negotiating sends the wrong signal.
We’ve all heard the phrase “don’t look a gift horse in the mouth.” Sometimes the downside risk of negotiating is significant, the upside benefit of just accepting their offer is big, and it’s just not worth it to engage.

Perhaps your new boss asked you to finish a particularly interesting and important project over the weekend. Don’t ask for something extra because it’s the weekend, making you appear ungrateful.

Or perhaps your friend offered you some sports tickets at his cost, just hours before the game. You could probably get him to knock off some dollars off as he’s likely desperate, but doing so would appear cheap.

4. When negotiating is culturally inappropriate.
Do you know anyone who negotiates the price of food at large grocery stores? Probably not. It’s culturally inappropriate here.

When dealing with those from other cultures, find out whether and under what circumstances it is appropriate to negotiate. Sometimes their negotiation norms will be similar to ours. Other times you may put yourself in awkward and embarrassing situations.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog0 Comments

I.P. Blog: Court Grants Plaintiff’s Motion to Dismiss Copyright Lawsuit

By: Paul B. Overhauser Publisher: Indiana Intellectual Property Law News

Indianapolis, Indiana – Indiana copyright attorneys for Redwall Live Corporation (“Redwall”) of Indianapolis, Indiana asked the Southern District of Indiana to dismiss Redwall’s own copyright litigation. Redwall’s complaint alleged that ESG Security, Inc.(“ESG”), also of Indianapolis, Indiana, infringed the logo that Redwall had designed for ESG. That logo has been registered by the U.S. Copyright Office. The court dismissed the complaint in its entirety. Redwall will be permitted to refile the non-copyright counts in Indiana state court but the copyright count was dismissed with prejudice.

Redwall is a consulting and design-services firm engaged in the business of strategic branding and advertising. Its services include developing a clear message and a unique visual image as well as developing brand value for its clients.

In its 2013 complaint against ESG, Redwall stated that it had been hired by ESG to reinvent ESG’s brand. As part of this project, it created a new logo design for ESG, which was copyrighted under Registration No. VA 1-874-872. Redwall asserted that ESG had failed to pay Redwall in full for the work done and that ESG nonetheless had continued to use Redwall’s copyrighted logo on a variety of items. Indiana copyright lawyers for Redwall sued for copyright infringement under federal law, as well as breach of contract and unjust enrichment under Indiana state law.

Redwall later decided that pursuing the copyright portion of the claim was not worth the expense. As the Judge Sarah Evans Barker put it, they concluded that “the game is not worth the candle.” Copyright attorneys for Redwall asked the court to dismiss the copyright complaint without prejudice. Attorneys for ESG asked the court instead to dismiss Redwall’s copyright claim with prejudice.

In evaluating Redwall’s motion to dismiss, the court cited its discretion to attach conditions to the dismissal of a lawsuit – “the quid for the quo of allowing the plaintiff to dismiss his suit without being prevented by the doctrine of res judicata from bringing the same suit again.” The court noted that Redwall seemed to have added a less-than-robust copyright claim as leverage to obtain its true goal of payment under its contract with ESG. Judge Barker concluded that to allow Redwall to withdraw that copyright claim without any res judicata consequences would reward that gamesmanship. The court determined that, as a proper exercise of its discretion, it would dismiss Redwall’s copyright claim with prejudice but permit Redwall’s remaining state-law claims to be refiled in state court.

Practice Tip: Filing a copyright lawsuit can be perilous, as the plaintiff may later be unable to dismiss that litigation without incurring liability for the defendant’s attorney fees. As the Seventh Circuit held inRiviera Distribs., Inc. v. Jones, a voluntary dismissal of a copyright claim by the plaintiff – if that claim is dismissed with prejudice – is sufficient to trigger the duty of the plaintiff to pay the attorney’s fees incurred defending against the allegations of copyright infringement: “[Defendant] Midwest obtained a favorable judgment. That this came about when [Plaintiff] Riviera threw in the towel does not make Midwest less the victor than it would have been had the judge granted summary judgment or a jury returned a verdict in its favor. Riviera sued; Midwest won; no more is required.” Similarly here, ESG qualifies as a “prevailing party” under the Copyright Act and is thus presumptively entitled to attorneys’ fees for the litigation of that claim under 17 U.S.C. § 505.

The case was assigned to Judge Sarah Evans Barker and Magistrate Judge Debra McVicker Lynch in the Southern District of Indiana and assigned Case No. 1:13-cv-01849-SEB-DML.

Order Motions Dismiss

______________________________________________________________________________________

By: Paul B. Overhauser, Publisher, Indiana Intellectual Property Law News

Overhauser Law Offices, LLC provides intellectual property services including patents, trademarks, copyrights and infringement litigation. Whether you’re an entrepreneur launching your first invention or a corporation looking for a litigation specialist, we have the legal experience to meet your goals.

To learn more about how Overhauser Law Offices can help you, browse our website to meet our lawyers and peruse our practice areas.  Then contact us, and we’ll put our expert team to work for you.

© 2015

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Intellectual Property Blog0 Comments

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