Category Archives: Technology

Social Media and Technology in the Workplace

By James W. Boyan III, Esq.

jboyan@pashmanstein.com

On September 19, 2014, Maxiel Gomez and I presented a seminar entitled “Social Media and Technology in the Workplace” at the New Jersey Corporate Counsel Association’s Annual Conference.  The seminar drew a strong turnout which shows that social media is still a hot button issue for many employers.  For those who were unable to attend the conference, here are some of the key takeaways:

  • The National Labor Relations Board – Office of the General Counsel (“NLRB”) has issued guidance concerning social media policies promulgated by employers;
  • The NLRB takes the position that certain provisions found in social media policies violate Section 7 of the National Labor Relations Act (the “Act”);
  • The NLRB has brought enforcement actions against several employers who have terminated employees for allegedly engaged in “concerted activity” on a social media site;
  • Many states, including New Jersey, have enacted password protection laws that prevent employers from demanding that an applicant or employee disclose a social media password;
  • Employers should be careful that they are not considering information disclosed on social media about an applicant’s membership in a protected class when they make employment decisions;
  • Employers can monitor social media to investigate whether employees are engaged in fraudulent or disloyal conduct; and
  • Employers should review their social media policies to ensure that they comply with the law and be cautious when they seek to discipline an employee for violating a social media policy.

“America Invents,” But Does It File?

By Michael Zoller, Esq.
mzoller@pashmanstein.com

The process to patent an invention in the United States can best be described as archaic.  Recent legislation that is now beginning to take effect looks to change the process (and hopefully improve it, but that remains to be seen).  On September 16, 2011, President Obama signed into the law the “America Invents Act.”  All of the Acts provisions became effective as of March 16, 2013.  The Act presents some big changes to US Patent Law that every inventor, or business that employees inventors, needs to be aware of.

The biggest change is that the Act changes the United States from a “first-to-invent” country to a “first-inventor-to-file” country.  Under the old system, when a person filed for a patent was not as important as being able to show that he was the true inventor of the material for which the patent was sought.  Now, under the new system, baring a few exceptions described below, the most important thing for establishing the right to a patent will be who was the first to file the application not who actually invented the material.

A second change to the system is an expansion in the definition of “prior art.”  Under the old system, prior art that caused the denial of a patent only came from the United States.  Under the new law, prior art can come from anywhere in the world.  An exception to the prior art that excludes a patent is a “disclosure.”  A disclosure, though not fully defined in the Act, is when the inventor reveals his invention to the public within a year prior to filing for a patent.  While this sounds very beneficial to the patent applicant, an applicant needs to be aware that a lot of countries do not have the disclosure grace period that the US system offers, so if a patent applicant makes a disclosure it might not affect his ability to obtain a patent in the US, but it could ruin his chance of obtaining a patent in other countries.

As mentioned above, even though the system is now a first-inventor-to-file system, the first person to file will not always be the one to retain the patent.  Once a patent is granted, there are three procedures whereby a person can challenge the patent to have it revoked from the filer.  Under the new derivation proceeding, within a year of a patent being granted, a fellow patent holder can challenge the newly patented invention as being derivative of his previously granted patent by showing that the new patent is the same or substantially similar to his previously granted patent.  If the person who brings the derivation proceeding is successful, the new patent will be transferred to the successful claimant.

If a person who does not have a patent of their own wants to challenge a newly granted patent, they can do so either via an inter partes review or a post grant review.  An inter partes review has to be brought within nine months of a patent being granted and a non-patent holder can challenge the new patent on the specific grounds of either the patent not being novel or consisting of non-obvious material.  If the challenger is successful, the patent will be canceled.  A post grant review also has to be brought within nine months of a patent being granted and in it, a non-patent holder can challenge a new patent on any ground related to patentability.  Again if the challenger is successful, the patent will be canceled.  Even though the US system is now a “first-inventor-to-file” system, all of these review procedures will stop a patent from remaining with a filer, regardless of him being the first to file.

These changes to the US patent system are intended to make the system clearer, speed up the process and bring it closer to conformity with the systems in other countries.  Whether these goals will be achieved remains to be seen, but all inventors and companies that employee inventors need to be aware of the new laws and proceed accordingly.

The iPad Boom: Good for Business?

By Michael Zoller, Esq.
mzoller@pashmanstein.com

According to a new national survey of owners and CEOs of small businesses conducted by the Business Journals, the use of the Apple iPad by businesses and their employees has nearly quadrupled in the past year.[1]  The results of the survey indicate that the usage rate of the iPad has risen from 9 percent in 2010 to 34 percent in 2011.  And to think, all of this increase occurred before Apple unveiled its “New iPad” on March 7th.  After only its first weekend of sales, Apple announced that the new iPad produced the strongest opening numbers of any iPad version, moving over 3 million units.[2]  Based on these initial sales of the new iPad and a discounted price for the older model iPad 2, it is only likely that this usage rate is going to increase going forward.

The survey cites owners’ and CEO’s desire for accessibility as the biggest reason for the iPad’s popularity.  Unfortunately, for any small business owner, this greater accessibility comes with greater responsibility.  While the iPad has many features and applications that can benefit a small business, it also raises many issues that any small business owner must be aware of in order to protect his or her business.

The first issue a small business owner faces when it comes to employees’ use of an iPad is ownership of the tablet.  If the business supplies the device for its employees, the business owner will have increased costs, but will also retain greater control over its use.  The alternative is for the business to allow its employees to supply their own iPad.  This approach will save the business the upfront acquisition costs, but might cost the business more in the long run if problems should arise.

With less control over an employee owned iPad, it will be harder for the business to protect any records or confidential information saved on the tablet.  If an employee was to leave the business, any information of this type could potentially leave with him or her instead of remaining with the business when the employee was forced to turn in a business owned iPad.

Of course not all issues a small business faces are related to who owns the iPad.  Regardless of ownership, the business could potentially face liability for its employees’ actions while using an iPad.  If the employee is using a business owned iPad or a personal iPad connected to the business’ wireless network, the business may be vicariously liable for any crime committed by the employee.[3]  The need to protect a business from liability then gives rise to other potential issues such as employee privacy concerns and what a business can have access to on an iPad that is potentially used for both business and personal purposes.  Additionally, if an iPad containing business records or confidential information is stolen, what will matter is not who owns the iPad, but what was done to protect the information.

With the iPad gaining more traction in the small business world, a business must be fully aware of all the potential issues the device presents and protect itself accordingly.  At a minimum, businesses should have an iPad user policy.  The policy can be similar to the Email and Internet policy the business already has and lay out in detail exactly what is and is not acceptable use of a business owned iPad or an employee owned iPad on the business’ network.  Additionally, there are special applications and software that can be installed to protect and/or wipe business or confidential information from the iPad in the case of theft or an employee leaving.

Based on current trends, the 34% usage rate is going to look like a low figure by 2012-13 alone, so it is best for any small business owner to get out in front of these issues now.  As long as the small business owner is aware of the potential risks and takes the appropriate steps to protect him/herself and their business, the iPad should be an effective tool for any small business.


[3] See Doe v. XYC Corp., 382 N.J. Super. 122 (App. Div. 2005)(court found employer can be liable for its employee’s involvement in child pornography via his work computer).