UPDATE: The USPTO "Three-Track" Initiative:

Posted on July 29, 2011 by Joseph Falcon

 

UPDATE: This post will serve as an update to our post from April 21, 2011. The United States Patent & Trademark Office (“USPTO”) recently announced several spending reductions resulting from the Full-Year Continuing Appropriations Act, 2011. In response to the budget crisis, the agency cut back and/or postponed several initiatives it had planned for the year, including the proposed “fast-track” patent examination process, Track I, which was due to be implemented May 4, 2011. Unfortunately, prioritized examination has now been postponed indefinitely.

 

The week, the United States Patent and Trademark Office (USPTO) announced the first step in implementation of a new patent examination initiative, which they claim will provide applicants greater control over the speed with which their applications are examined.  Pendency has been a major concern with the USPTO, considering that some applications are not being assigned for examination up to five years after filing. The “Three-Track” initiative is intended to promote greater efficiency in patent prosecution, by reducing pendency of some application. 

 

Under the “Three-Track” initiative, for applications filed first in the United States, an applicant may request:

 

Track I, prioritized examination, announced by the USPTO this week and will provide a first Office action on the merits within four months and a final disposition within twelve months of the grant of a Track I request.  

 

Starting May 4, 2011, an applicant may request prioritized examination with payment of a $4,000 request fee and other filing fees. see 76 Fed. Reg. 18399. Prioritization is available only for an original and complete utility or plant non-provisional application that contains or is amended to contain no more than four independent claims, no more than 30 total claims, and no multiple dependent claims. If the prioritization is granted, the application receives special status and placed on the examiner's special docket throughout prosecution until a final disposition is reached in the application. As a result, the applicant may receive final disposition within twelve months of prioritized status being granted, which may include: (1) mailing of a notice of allowance, (2) mailing of a final Office action, (3) filing of a notice of appeal, (4) declaration of an interference by the Board of Patent Appeals and Interferences (BPAI), (5) filing of a request for continued examination, or (6) abandonment of the application.

 

A continuation application that claims priority to a pending application may be filed along with a Request for Prioritized Examination, however, a Request for Prioritized Examination will not be granted when filed with a new PCT national stage application under 35 U.S.C. 371. 

 

At first, the USPTO will limit the number of applications filed with a Request for Prioritized Examination to 10,000 applications for the 2011 fiscal year, and then revaluate any future limitations on requests. 

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Pennsylvania's Mortgage Licensing Act: Private Residential Mortgages Limited to Just Immediate Family Members Unless You're Licensed

Posted on July 21, 2011 by Sarah Yocum Rider
In 2008, the Pennsylvania legislature passed the Mortgage Licensing Act (the “Act”), which was subsequently amended in 2009 and 2010. The Act prohibits individuals and entities from engaging in the residential mortgage loan business without being licensed under the Act. This means that individuals or entities cannot make loans and take back mortgages on residential real estate (real property upon which is constructed or intended to be constructed as a dwelling), unless the lender obtains a mortgage lender license. Violations of the Act may result in fines up to $10,000 for each offense.
 
The Act includes certain limited exceptions to this general prohibition, most notably, an exception permitting an individual to lend money to a member of the lender’s immediate family and take back a residential mortgage. “Immediate Family” is defined under the Act as a parent, spouse, child, brother or sister (but does not include other family members, including grandparents and grandchildren). It is important to note that the Act does not apply to loans for business or commercial purposes or properties.
 
A common practice, particularly in the current real estate market, is for a seller of a residential property to finance a portion of the purchase price and take back a residential mortgage on the property. The Act has been interpreted by the Pennsylvania Department of Banking to prohibit these “private money mortgages,” unless the borrower and lender are “immediate family members” as defined under the Act. 
 
A seller or builder of residential property has other options available to assist a buyer in the purchase of their property. For example, the seller/builder and buyer may enter into a lease-purchase agreement or an installment sale agreement arrangement.  The primary difference between these arrangements and the private money mortgage (to take them outside of the purview of the Act) is that title to the residential property does not transfer to the buyer and the seller does not take back the residential property as collateral during the term of the lease or installment sale agreement.
 
We will continue to monitor legislative developments in this area. If you have questions, feel free to contact Sarah or any other member of the Real Estate or Construction Law Groups.
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Insurance and Indemnity Provisions may Reduce the Cost of Construction Accidents

Posted on July 14, 2011 by Ron Pollock
Jobsite accidents are personally and economically costly. While everything may be done to avoid accidents, they will never be eliminated entirely. The claims process and possible litigation is expensive even if the case is successfully defended. The company can protect itself by writing strong indemnity and insurance provisions into its contracts. There are several areas to keep in mind when drafting these provisions. 

 
A.)  Specifically review “boilerplate” insurance and indemnity provisions.   Boilerplate, or contract provisions simply transferred automatically from contract to contract without modification, may have gaps or not be applicable to certain situations that may be relevant to a particular job site. Likewise, relying on another party to indemnify your company or name your company as an additional insured must be appropriately detailed or it may fail when it is needed most.

 
B.) Insurance policy renewals should be tracked diligently, through a docket system for reminding appropriate parties of the need for renewal.

 
C.) In a related item, keep documentation to confirm coverage is in place, particularly if relying on another party to have insurance. Certificates of Insurance can be inadequate or not detailed, so actual policy declarations should be reviewed.

 
D.)  Finally, an insurance broker/contractor/attorney partnership can coordinate these issues to avoid expensive exposure. 
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Does your insurance cover exposure from design-build jobs?

Posted on July 7, 2011 by Ron Pollock
The design – build approach can be advantageous for a project owner as well as the contractor. The relationships do require the contractor to assume the responsibility for the design contract. As a result, contractors must confirm that their insurance scheme protects them from exposure that may result from this liability.

 
There are several ways to deal with this exposure. First, the designer’s professional liability policy can be used to protect the contractor. Second, the contractor’s general and umbrella liability policies, while typically excluding professional liability, can be helpful if the contractor can obtain a professional liability policy with coverage for defined professional services. This definition should be reviewed carefully to ensure design – build exposure is protected. 

 
Prior to bidding, it is critical to ensure a contractor’s insurance program provides protection for added design responsibility. This is important to the project owner and designer as well since a failure to adequately insure against possible risk may affect all parties to the project. 
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