35 U.S.C. 22 Printing of papers filed.
The Director may require papers filed in the Patent and Trademark Office to be printed, typewritten, or on an electronic medium.
37 C.F.R. 1.71 Detailed description and specification of the invention.
(a) The specification must include a written description of the invention or discovery and of the manner and process of making and using the same, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention or discovery appertains, or with which it is most nearly connected, to make and use the same.
(b) The specification must set forth the precise invention for which a patent is solicited, in such manner as to distinguish it from other inventions and from what is old. It must describe completely a specific embodiment of the process, machine, manufacture, composition of matter or improvement invented, and must explain the mode of operation or principle whenever applicable. The best mode contemplated by the inventor of carrying out his invention must be set forth.
(c) In the case of an improvement, the specification must particularly point out the part or parts of the process, machine, manufacture, or composition of matter to which the improvement relates, and the description should be confined to the specific improvement and to such parts as necessarily cooperate with it or as may be necessary to a complete understanding or description of it.
(d) A copyright or mask work notice may be placed in a design or utility patent application adjacent to copyright and mask work material contained therein. The notice may appear at any appropriate portion of the patent application disclosure. For notices in drawings, see § 1.84(s). The content of the notice must be limited to only those elements provided for by law. For example, "©1983 John Doe"(17 U.S.C. 401) and "*M* John Doe" (17 U.S.C. 909) would be properly limited and, under current statutes, legally sufficient notices of copyright and mask work, respectively. Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in paragraph (e) of this section is included at the beginning (preferably as the first paragraph) of the specification.
(f) The specification must commence on a separate sheet. Each sheet including part of the specification may not include other parts of the application or other information. The claim(s), abstract and sequence listing (if any) should not be included on a sheet including any other part of the application.
(1) The specification may disclose or be amended to disclose the names of the parties to a joint research agreement as defined in § 1.9(e).
(iv) Before the mailing of a first Office action after the filing of a request for continued examination under § 1.114.
(3) If an amendment under paragraph (g)(1) of this section is filed after the date the issue fee is paid, the patent as issued may not necessarily include the names of the parties to the joint research agreement. If the patent as issued does not include the names of the parties to the joint research agreement, the patent must be corrected to include the names of the parties to the joint research agreement by a certificate of correction under 35 U.S.C. 255 and § 1.323 for the amendment to be effective.
The specification is a written description of the invention and of the manner and process of making and using the same. The specification must be in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which the invention pertains to make and use the same. See 35 U.S.C. 112 and 37 CFR 1.71. If a newly filed application obviously fails to disclose an invention with the clarity required by 35 U.S.C. 112, revision of the application should be required. See MPEP § 702.01. The written description must not include information that is not related to applicant’s invention, e.g., prospective disclaimers regarding comments made by examiners. If such information is included in the written description, the examiner will object to the specification and require applicant to take appropriate action, e.g., cancel the information. The specification must commence on a separate sheet. Each sheet including part of the specification may not include other parts of the application or other information. The claim(s), abstract and sequence listing (if any) should not be included on a sheet including any other part of the application (37 CFR 1.71(f) ). That is, the claim(s), abstract and sequence listings (if any) should each begin on a new page since each of these sections (specification, abstract, claims, sequence listings) of the disclosure are separately indexed in the Image File Wrapper (IFW). There should be no overlap on a single page of more than one section of the disclosure.
The specification does not require a date.
Certain cross references to other related applications may be made. References to foreign applications or to applications identified only by the attorney’s docket number should be required to be canceled. U.S. applications identified only by the attorney’s docket number may be amended to properly identify the earlier application(s). See 37 CFR 1.78.
As the specification is never returned to applicant under any circumstances, the applicant should retain an accurate copy thereof. In amending the specification, the attorney or the applicant must comply with 37 CFR 1.121 (see MPEP § 714).
Examiners should not object to the specification and/or claims in patent applications merely because applicants are using British English spellings (e.g., colour) rather than American English spellings. It is not necessary to replace the British English spellings with the equivalent American English spellings in the U.S. patent applications. Note that 37 CFR 1.52(b)(1)(ii) only requires the application to be in the English language. There is no additional requirement that the English must be American English.
Form paragraph 7.29 may be used where the disclosure contains minor informalities.
The disclosure is objected to because of the following informalities: . Appropriate correction is required.
Use this paragraph to point out minor informalities such as spelling errors, inconsistent terminology (see the requirement of 37 CFR 1.71(a) for "full, clear, concise, and exact terms"), numbering of elements (see 37 CFR 1.74 ), etc., which should be corrected. See form paragraphs 6.28 to 6.31 for specific informalities.
Form paragraphs 6.29-6.31 should be used where appropriate.
The spacing of the lines of the specification is such as to make reading difficult. New application papers with lines 1 1/2 or double spaced (see 37 CFR 1.52(b)(2) ) on good quality paper are required.
35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA), first paragraph, requires the specification to be written in "full, clear, concise, and exact terms." The specification is replete with terms which are not clear, concise and exact. The specification should be revised carefully in order to comply with 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA). Examples of some unclear, inexact or verbose terms used in the specification are: .
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
(b) The application (specification, including the claims, drawings, and the inventor’s oath or declaration) or reexamination or supplemental examination proceeding, any amendments to the application or reexamination proceeding, or any corrections to the application, or reexamination or supplemental examination proceeding.
(5) Other than in a reissue application or reexamination or supplemental examination proceeding, the pages of the specification including claims and abstract must be numbered consecutively, starting with 1, the numbers being centrally located above or preferably below, the text.
(6) Other than in a reissue application or reexamination or supplemental examination proceeding, the paragraphs of the specification, other than in the claims or abstract, may be numbered at the time the application is filed, and should be individually and consecutively numbered using Arabic numerals, so as to unambiguously identify each paragraph. The number should consist of at least four numerals enclosed in square brackets, including leading zeros (e.g., ). The numbers and enclosing brackets should appear to the right of the left margin as the first item in each paragraph, before the first word of the paragraph, and should be highlighted in bold. A gap, equivalent to approximately four spaces, should follow the number. Nontext elements (e.g., tables, mathematical or chemical formulae, chemical structures, and sequence data) are considered part of the numbered paragraph around or above the elements, and should not be independently numbered. If a nontext element extends to the left margin, it should not be numbered as a separate and independent paragraph. A list is also treated as part of the paragraph around or above the list, and should not be independently numbered. Paragraph or section headers (titles), whether abutting the left margin or centered on the page, are not considered paragraphs and should not be numbered.
(c) Interlineation, erasure, cancellation, or other alteration of the application papers may be made before or after the signing of the inventor's oath or declaration referring to those application papers, provided that the statements in the inventor's oath or declaration pursuant to § 1.63 remain applicable to those application papers. A substitute specification (§ 1.125 ) may be required if the application papers do not comply with paragraphs (a) and (b) of this section.
(d) A nonprovisional or provisional application under 35 U.S.C. 111 may be in a language other than English.
(1) Nonprovisional application. If a nonprovisional application under 35 U.S.C. 111(a) is filed in a language other than English, an English language translation of the non-English language application, a statement that the translation is accurate, and the processing fee set forth in § 1.17(i) are required. If these items are not filed with the application, applicant will be notified and given a period of time within which they must be filed in order to avoid abandonment.
(2) Provisional application. If a provisional application under 35 U.S.C. 111(b) is filed in a language other than English, an English language translation of the non-English language provisional application will not be required in the provisional application. See § 1.78(a) for the requirements for claiming the benefit of such provisional application in a nonprovisional application.
(e) Electronic documents that are to become part of the permanent United States Patent and Trademark Office records in the file of a patent application, or reexamination or supplemental examination proceeding.
(iii) Any individual table (see § 1.58 ) if the table is more than 50 pages in length, or if the total number of pages of all the tables in an application exceeds 100 pages in length, where a table page is a page printed on paper in conformance with paragraph (b) of this section and § 1.58(c).
(ii) Each compact disc must be enclosed in a hard compact disc case within an unsealed padded and protective mailing envelope and accompanied by a transmittal letter on paper in accordance with paragraph (a) of this section. The transmittal letter must list for each compact disc the machine format ( e.g., IBM-PC, Macintosh), the operating system compatibility ( e.g., MS-DOS, MS-Windows, Macintosh, Unix), a list of files contained on the compact disc including their names, sizes in bytes, and dates of creation, plus any other special information that is necessary to identify, maintain, and interpret ( e.g., tables in landscape orientation should be identified as landscape orientation or be identified when inquired about) the information on the compact disc. Compact discs submitted to the Office will not be returned to the applicant.
(2) Except as otherwise provided in this paragraph, the paper size equivalent of the specification and drawings of an application submitted via the Office electronic filing system will be considered to be seventy-five percent of the number of sheets of paper present in the specification and drawings of the application when entered into the Office file wrapper after being rendered by the Office electronic filing system for purposes of determining the application size fee required by § 1.16(s). Any sequence listing in compliance with § 1.821(c) or (e), and any computer program listing in compliance with § 1.96, submitted via the Office electronic filing system will be excluded when determining the application size fee required by § 1.16(s) if the listing is submitted in ASCII text as part of an associated file.
(a) The specification, including the claims, may contain chemical and mathematical formulae, but shall not contain drawings or flow diagrams. The description portion of the specification may contain tables, but the same tables should not be included in both the drawings and description portion of the specification. Claims may contain tables either if necessary to conform to 35 U.S.C. 112 or if otherwise found to be desirable.
(b) Tables that are submitted in electronic form (§§ 1.96(c) and1.821(c) ) must maintain the spatial relationships (e.g., alignment of columns and rows) of the table elements when displayed so as to visually preserve the relational information they convey. Chemical and mathematical formulae must be encoded to maintain the proper positioning of their characters when displayed in order to preserve their intended meaning.
(c) Chemical and mathematical formulae and tables must be presented in compliance with § 1.52(a) and (b), except that chemical and mathematical formulae or tables may be placed in a landscape orientation if they cannot be presented satisfactorily in a portrait orientation. Typewritten characters used in such formulae and tables must be chosen from a block (nonscript) type font or lettering style having capital letters which should be at least 0.422 cm. (0.166 inch) high (e.g., preferably Arial, Times Roman, or Courier with a font size of 12), but may be no smaller than 0.21 cm. (0.08 inch) high (e.g., a font size of 6). A space at least 0.64 cm. (1/4 inch) high should be provided between complex formulae and tables and the text. Tables should have the lines and columns of data closely spaced to conserve space, consistent with a high degree of legibility.
The pages of the specification including claims and abstract must be numbered consecutively, starting with 1, the numbers being centrally located above or preferably, below, the text. The lines of the specification, and any amendments to the specification, must be 1 1/2 or double spaced. The text must be written in a nonscript type font (e.g., Arial, Times Roman, or Courier, preferably a font size of 12) lettering style having capital letters which should be at least 0.3175 cm. (0.125 inch) high, but may be no smaller than 0.21 cm. (0.08 inch) high (e.g., a font size of 6) (37 CFR1.52(b)(2)(ii) ). The text may not be written solely in capital letters.
All application papers (specification, including claims, abstract, any drawings, oath or declaration, and other papers), and also papers subsequently filed, must have each page plainly written on only one side of a sheet of paper. The specification must commence on a separate sheet. Each sheet including part of the specification may not include other parts of the application or other information. The claim(s), abstract and sequence listing (if any) should not be included on a sheet including any other part of the application (37 CFR 1.71(f) ). The claim or claims must commence on a separate sheet or electronic page and any sheet including a claim or portion of a claim may not contain any other parts of the application or other material (37 CFR 1.75(h) ). The abstract must commence on a separate sheet and any sheet including an abstract or portion of an abstract may not contain any other parts of the application or other material (37 CFR 1.72(b) ).
All application papers that are submitted on paper or by facsimile transmission which are to become a part of the permanent record of the U.S. Patent and Trademark Office must be on sheets of paper which are the same size (for example, an amendment should not have two different sizes of paper, but the specification can have one size of paper and the drawings a different size) and are either 21.0 cm. by 29.7 cm. (DIN size A4) or 21.6 cm. by 27.9 cm. (8 1/2 by 11 inches). See 37 CFR 1.52(a)(1) and 37 CFR 1.84(f). Each sheet, other than the drawings, must include a top margin of at least 2.0 cm. (3/4 inch), a left side margin of at least 2.5 cm. (1 inch), a right side margin of at least 2.0 cm. (3/4 inch), and a bottom margin of at least 2.0 cm. (3/4 inch). No holes should be made in the sheets as submitted.
Application papers that are submitted electronically to the Office must be formatted and transmitted in compliance with the Office’s electronic filing system requirements. See 37 CFR 1.52(a)(5). See also MPEP § 502.05 and the EFS-Web Legal Framework (www.uspto.gov/patents-application-process/ applying-online/legal-framework-efs-web-06april11 ) for details regarding correspondence transmitted to the Office using EFS-Web, the Office’s system for the electronic filing of patent correspondence.
Applicants must make every effort to file patent applications, and papers that are to become a part of the permanent United States Patent and Trademark Office records in the file of a patent application or a reexamination proceeding, in a form that is clear and reproducible. If the papers are not of the required quality, substitute papers of suitable quality will be required. See 37 CFR 1.125 for filing rewritten papers constituting a substitute specification required by the Office. See also MPEP § 608.01(q). All papers which are to become a part of the permanent records of the U.S. Patent and Trademark Office must be legibly written either by a typewriter or mechanical printer in permanent dark ink or its equivalent in portrait orientation on flexible, strong, smooth, nonshiny, durable, and white paper. Typed, mimeographed, xeroprinted, multigraphed or nonsmearing carbon copy forms of reproduction are acceptable. So-called "Easily Erasable" paper having a special coating so that erasures can be made more easily may not provide a "permanent" copy, 37 CFR 1.52(a)(1)(iv). Since application papers are now maintained in an Image File Wrapper, the type of paper is unlikely to be an issue so long as the Office is able to scan and reproduce the papers that were filed.
Where an application is filed with papers that do not comply with 37 CFR 1.52, the Office of Patent Application Processing will mail a "Notice to File Corrected Application Papers" indicating the deficiency and setting a time period within which the applicant must correct the deficiencies to avoid abandonment. The failure to submit application papers in compliance with 37 CFR 1.52 does not affect the grant of a filing date, and original application papers that do not comply with 37 CFR 1.52 will be retained in the application file as the original disclosure of the invention. The USPTO will not return papers simply because they do not comply with 37 CFR 1.52.
Legibility includes ability to be photocopied and scanned so that suitable reprints can be made and paper can be electronically reproduced by use of digital imaging and optical character recognition. This requires a high contrast, with black lines and a white background. Gray lines and/or a gray background sharply reduce photo reproduction quality.
Some of the patent application papers received by the U.S. Patent and Trademark Office are copies of the original, ribbon copy. These are acceptable if, in the opinion of the Office, they are legible and permanent.
The specification (including the abstract and claims), and any amendments for applications, except as provided for in 37 CFR 1.821 through 1.825, must have text written plainly and legibly either by a typewriter or machine printer in a nonscript type font (e.g., Arial, Times Roman, or Courier, preferably a font size of 12) lettering style having capital letters which should be at least 0.3175 cm. (0.125 inch) high, but may be no smaller than 0.21 cm. (0.08 inch) high (e.g., a font size of 6) in portrait orientation and presented in a form having sufficient clarity and contrast between the paper and the writing thereon to permit the direct reproduction of readily legible copies in any number by use of photographic, electrostatic, photo-offset, and microfilming processes and electronic capture by use of digital imaging and optical character recognition; and only a single column of text. See 37 CFR 1.52(a) and (b).
The application papers are objected to because .
A legible substitute specification in compliance with 37 CFR 1.52(a) and (b) and 1.125 is required.
1. In bracket 1, identify the part of the specification that is illegible: all of the specification; or certain pages of the specification.
2. Do not use this form paragraph for reissue applications or reexamination proceedings.
Effective September 16, 2012, 37 CFR 1.52(c) no longer prohibits interlineations and other alterations of the application papers from being made after the signing of the inventor’s oath or declaration. It should be noted that if such interlineations or other alterations are made after the signing of the inventor’s oath or declaration, then the statements in the inventor’s oath or declaration pursuant to 37 CFR 1.63 must remain applicable to the application papers. Otherwise, the inventor may need to execute a new inventor’s oath or declaration. See also MPEP § 602.08(b).
If an application-as-filed does not meet the sheet size/margin and quality requirements of 37 CFR 1.52 and 1.84(f) and (g), certified copies of such application may be illegible and/or ineffective as priority documents. When an applicant requests that the USPTO provide a certified copy of an application-as-filed and pays the fee set forth in 37 CFR 1.19(b)(1), the USPTO will make a copy of the application-as-filed from the records in the IFW database (or the microfilm database). If papers submitted in the application-as-filed are not legible, certified copies of the application as originally filed will not be legible.
The USPTO performs exception processing when scanning application papers that do not comply with the sheet size/margin and quality requirements. If papers submitted in the application-as-filed (including any transmittal letter or cover sheet) do not meet the sheet size requirement of 37 CFR 1.52 and 1.84(f) (e.g., the papers are legal size (8 1/2 by 14 inches)), the USPTO must reduce such papers to be able to image-scan the entire application and record it in the IFW database. In addition, if papers submitted in the application-as-filed do not meet the quality requirements of 37 CFR 1.52 (e.g., the papers are shiny or non-white), the USPTO will attempt to enhance such papers before scanning to make the resulting electronic record in the IFW database more readable. However, if exception processing is required to make the IFW copy, certified copies of the application as originally filed may not be legible.
If application papers are filed that do not meet sheet size/margin and quality requirements, the USPTO will require the applicant to file substitute papers that do comply with the requirements of 37 CFR 1.52 and 1.84(e), (f) and (g). The substitute papers submitted in reply to the above-mentioned requirement will provide the USPTO with an image- and OCR-scannable copy of the application for printing the application as a patent publication or patent. However, the USPTO will not treat application papers submitted after the filing date of an application as the original disclosure of the application for making a certified copy of the application-as-filed or any other purpose. That is, even if an applicant subsequently files substitute application papers that comply with 37 CFR 1.52 and then requests that the USPTO provide a certified copy of an application-as-filed, paying the fee set forth in 37 CFR 1.19(b)(1), the USPTO will still make a copy of the application-as-filed rather than a copy of the subsequently filed substitute papers.
In order to minimize the necessity in the future for converting dimensions given in the English system of measurements to the metric system of measurements when using printed patents as research and prior art search documents, all patent applicants should use the metric (S.I.) units followed by the equivalent English units when describing their inventions in the specifications of patent applications.
The initials S.I. stand for "Le Système International d’ Unités," the French name for the International System of Units, a modernized metric system adopted in 1960 by the International General Conference of Weights and Measures based on precise unit measurements made possible by modern technology.
The U.S. Patent and Trademark Office will accord a filing date to an application meeting the requirements of 35 U.S.C. 111(a), or a provisional application in accordance with 35 U.S.C. 111(b), even though some or all of the application papers, including the written description and any claims, is in a language other than English and hence does not comply with 37 CFR 1.52.
As provided in 35 U.S.C. 111(c), a nonprovisional application filed under 35 U.S.C. 111(a) on or after December 18, 2013, may be filed by a reference to a previously filed application (foreign, international, provisional, or nonprovisional) indicating that the specification and any drawings of the application are replaced by the reference to the previously filed application. See MPEP § 601.01(a), subsection III, for more information on the filing and treatment of such applications.
If a nonprovisional application under 35 U.S.C. 111(a) is filed in a language other than English, an English translation of the non-English language papers, a statement that the translation is accurate, the fees set forth in 37 CFR 1.16, the oath or declaration and fee set forth in 37 CFR 1.17(i) should either accompany the nonprovisional application papers or be filed in the Office within the time set by the Office. If a provisional application is filed in a language other than English, an English translation of the non-English language provisional application and a statement that the translation is accurate must be submitted if benefit of the provisional application is claimed in a later-filed nonprovisional application (see 37 CFR 1.78(a)(5) ). If the translation and statement were not previously filed in the provisional application, applicant will be notified in the nonprovisional application that claims the benefit of the provisional application and be given a period of time within which to file the translation and statement in the provisional application. Applicants may file the translation and statement in the provisional application even if the provisional application has become abandoned. A timely reply to such notice must include the filing in the nonprovisional application of either a confirmation that the translation and statement were filed in the provisional application or withdrawal of the benefit claim. For applications filed before September 16, 2012, an amendment or Supplemental Application Data Sheet withdrawing the benefit claim may be filed. For applications filed on or after September 16, 2012, a corrected application data sheet withdrawing the benefit claim may be filed. Failure to take one of the above actions will result in the abandonment of the nonprovisional application.
A subsequently filed English translation must contain the complete identifying data for the application in order to permit prompt association with the papers initially filed. Accordingly, it is strongly recommended that the original application papers be filed via EFS-Web or be accompanied by a cover letter and a self-addressed return postcard, each containing the following identifying data in English: (a) applicant’s name(s); (b) title of invention; (c) number of pages of specification, claims, and sheets of drawings; (d) whether an oath or declaration was filed and (e) amount and manner of paying the fees set forth in 37 CFR 1.16.
The translation must be a literal translation and must be accompanied by a statement that the translation is accurate. The translation must also be accompanied by a signed request from the applicant, his or her attorney or agent, asking that the English translation be used as the copy for examination purposes in the Office. If the English translation does not conform to idiomatic English and United States practice, it should be accompanied by a preliminary amendment making the necessary changes without the introduction of new matter prohibited by 35 U.S.C. 132. If such an application is published as a patent application publication, the document that is published is the translation. See 37 CFR 1.215(a) and MPEP § 1121 regarding the content of the application publication. In the event that the English translation and the statement are not timely filed in the nonprovisional application, the nonprovisional application will be regarded as abandoned.
It should be recognized that this practice is intended for emergency situations to prevent loss of valuable rights and should not be routinely used for filing applications. There are at least two reasons why this should not be used on a routine basis. First, there are obvious dangers to applicant and the public if he or she fails to obtain a correct literal translation. Second, the filing of a large number of applications under the procedure will create significant administrative burdens on the Office. See also MPEP § 601.01(a), subsection III, for information on reference filing, which is also a practice intended for emergency situations to prevent the loss of rights and should not be routinely used for filing applications.
Graphical illustrations, diagrammatic views, flowcharts, and diagrams in the descriptive portion of the specification do not come within the purview of 37 CFR 1.58(a), which permits tables, chemical and mathematical formulas in the specification in lieu of drawings. The examiner should object to such descriptive illustrations in the specification and request drawings in accordance with 37 CFR 1.81 when an application contains graphs, drawings, or flow charts in the specification.
The specification, including any claims, may contain chemical formulas and mathematical equations, but the written description portion of the specification must not contain drawings or flow diagrams. A claim may incorporate by reference to a specific figure or table where there is no practical way to define the invention in words. See MPEP § 2173.05(s). The description portion of the specification may contain tables, but the same tables should not be included in both the drawings as a figure and in the description portion of the specification. Claims may contain tables either if necessary to conform to 35 U.S.C. 112 or if otherwise found to be desirable. See MPEP § 2173.05(s). When such a patent is printed, however, the table will not be included as part of the claim, and instead the claim will contain a reference to the table number.
Examiners must review patent applications to make certain that hyperlinks and other forms of browser-executable code, especially commercial site URLs, are not included in a patent application. 37 CFR 1.57(e) states that an incorporation by reference by hyperlink or other form of browser executable code is not permitted. Examples of a hyperlink or a browser-executable code are a URL placed between these symbols "< >" and http:// followed by a URL address. When a patent application with embedded hyperlinks and/or other forms of browser-executable code issues as a patent (or is published as a patent application publication) and the patent document is placed on the USPTO Web page, when the patent document is retrieved and viewed via a Web browser, the URL is interpreted as a valid HTML code and it becomes a live web link. When a user clicks on the link with a mouse, the user will be transferred to another Web page identified by the URL, if it exists, which could be a commercial website. USPTO policy does not permit the USPTO to link to any commercial sites since the USPTO exercises no control over the organization, views or accuracy of the information contained on these outside sites.
If hyperlinks and/or other forms of browser-executable code are embedded in the text of the patent application, examiners should object to the specification and indicate to applicants that the embedded hyperlinks and/or other forms of browser-executable code are impermissible and that references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. This requirement does not apply to electronic documents listed on forms PTO-892 and PTO/SB/08 where the electronic document is identified by reference to a URL.
The attempt to incorporate subject matter into the patent application by reference to a hyperlink and/or other forms of browser-executable code is considered to be an improper incorporation by reference. See 37 CFR 1.57(e) and MPEP § 608.01(p), paragraph I regarding incorporation by reference. Where the hyperlinks and/or other forms of browser-executable codes themselves rather than the contents of the site to which the hyperlinks are directed are part of applicant’s invention and it is necessary to have them included in the patent application in order to comply with the requirements of 35 U.S.C. 112(a), and applicant does not intend to have these hyperlinks be active links, examiners should not object to these hyperlinks. The Office will disable these hyperlinks when preparing the text to be loaded onto the USPTO Web database.
Note that nucleotide and/or amino acid sequence data placed between the symbols "< >" are not considered to be hyperlinks and/or browser-executable code and therefore should not be objected to as being an improper incorporation by reference (see 37 CFR 1.821 –1.825 ).
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01.
1. Examples of a hyperlink or a browser-executable code are a URL placed between these symbols "< >" and "http://" followed by a URL address. Nucleotide and/or amino acid sequence data placed between the symbols "< >" are not considered to be hyperlinks and/or browser-executable code.
2. If the application attempts to incorporate essential or nonessential subject matter into the patent application by reference to the contents of the site to which a hyperlink and/or other form of browser-executable code is directed, use form paragraph 6.19 or 6.19.01 instead. See also MPEP § 608.01(p).
3. The requirement to delete an embedded hyperlink or other form of browser-executable code does not apply to electronic documents listed on forms PTO-892 and PTO/SB/08B where the electronic document is identified by reference to a URL.
4. Examiners should not object to hyperlinks where the hyperlinks and/or browser-executable codes themselves (rather than the contents of the site to which the hyperlinks are directed) are necessary to be included in the patent application in order to meet the requirements of 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, and applicant does not intend to have those hyperlinks be active links.


text:
Greenwood Center is a For-profit nursing home located in Sanford. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Oak Grove Center is a For-profit nursing home located in Waterville. This facility has an overall rating of 2.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Caribou Rehab And Nursing Center is a For-profit nursing home located in Caribou. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Odd Fellows & Rebekahs' Home Of Maine is a Non-profit nursing home located in Auburn. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/31/1994 and has received 0 penalties totalling $0.00 in fines.
Gregory Wing Of St Andrews Village is a Non-profit nursing home located in Boothbay Harbor. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 04/01/1994 and has received 0 penalties totalling $0.00 in fines.
Somerset Rehabilitation & Living Center is a For-profit nursing home located in Bingham. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/01/1994 and has received 0 penalties totalling $0.00 in fines.
Sanfield Rehab & Living Center is a For-profit nursing home located in Hartland. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/01/1994 and has received 0 penalties totalling $0.00 in fines.
Tamc - Aroostook Medical Center is a Non-profit nursing home located in Mars Hill. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/04/1967 and has received 0 penalties totalling $0.00 in fines.
The Newton Ctr For Rehab & Nur is a Non-profit nursing home located in Sanford. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 09/08/1972 and has received 0 penalties totalling $0.00 in fines.
South Portland Nursing Home is a For-profit nursing home located in So Portland. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Bangor Nursing & Rehabilitation is a Non-profit nursing home located in Bangor. This facility has an overall rating of 2.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/09/1967 and has received 0 penalties totalling $0.00 in fines.
Katahdin Nursing Home is a For-profit nursing home located in Millinocket. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 07/01/1994 and has received 0 penalties totalling $0.00 in fines.
Windward Gardens is a For-profit nursing home located in Camden. This facility has an overall rating of 1.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 04/23/1994 and has received 0 penalties totalling $0.00 in fines.
Mainegeneral Rehab & Long Term Care - Glenridge is a Non-profit nursing home located in Augusta. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Mid Coast Senior Health Center is a Non-profit nursing home located in Brunswick. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/09/1974 and has received 0 penalties totalling $0.00 in fines.
Orono Commons is a For-profit nursing home located in Orono. This facility has an overall rating of 1.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 07/01/1969 and has received 1 penalties totalling $3349.00 in fines.
St Joseph's Rehabilitation And Residence is a Non-profit nursing home located in Portland. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Sedgewood Commons is a For-profit nursing home located in Falmouth. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/19/1994 and has received 0 penalties totalling $0.00 in fines.
Maplecrest Rehab & Living Center is a For-profit nursing home located in Madison. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 10/01/1993 and has received 0 penalties totalling $0.00 in fines.
Country Manor Nursing Home is a For-profit nursing home located in Coopers Mills. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Ledgeview Living Center is a For-profit nursing home located in West Paris. This facility has an overall rating of 3.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Mainegeneral Rehab & Long Term Care - Gray Birch is a For-profit nursing home located in Augusta. This facility has an overall rating of 2.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 08/25/1983 and has received 1 penalties totalling $7938.00 in fines.
Mountain Heights Health Care is a For-profit nursing home located in Patten. This facility has an overall rating of 5.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 06/01/1994 and has received 0 penalties totalling $0.00 in fines.
Woodlawn Rehabilitation & Nursing Center is a For-profit nursing home located in Skowhegan. This facility has an overall rating of 3.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1994 and has received 0 penalties totalling $0.00 in fines.
High View Manor is a For-profit nursing home located in Madawaska. This facility has an overall rating of 4.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Springbrook Center is a For-profit nursing home located in Westbrook. This facility has an overall rating of 3.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 07/15/1991 and has received 0 penalties totalling $0.00 in fines.
Eastport Memorial Nursing Home is a Non-profit nursing home located in Eastport. This facility has an overall rating of 3.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/01/1994 and has received 0 penalties totalling $0.00 in fines.
Jackman Regional Health Center is a Non-profit nursing home located in Jackman. This facility has an overall rating of 1.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1994 and has received 0 penalties totalling $0.00 in fines.
The Commons At Tall Pines is a For-profit nursing home located in Belfast. This facility has an overall rating of 2.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 01/01/1993 and has received 0 penalties totalling $0.00 in fines.
Seaport Village Healthcare is a For-profit nursing home located in Ellsworth. This facility has an overall rating of 2.0/5 according to the medicare.gov website. This facility has been approved for Medicaid since 03/01/1994 and has received 1 penalties totalling $1495.00 in fines.

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As set forth below, the new legislation requires employers to adopt a sexual harassment policy that meets certain minimum standards, to regularly provide sexual harassment training to employees, and generally prohibits mandatory arbitration clauses and non-disclosure agreements relating to sexual harassment except in specific and limited circumstances. To aid employers with meeting the new regulations, the State has created an employer toolkit with links to a model policy, model training documents, and other related forms.
If your organization is concerned about complying with these requirements, the Law Offices of Mark A. Cuthbertson are well-equipped to assist you, whether by providing employee training or drafting/revising your organization’s sexual harassment policy. For more information, contact Mark Cuthbertson at mcuthbertson@cuthbertsonlaw.com.
As of October 9, 2018, all New York employers are required to have a written sexual harassment prevention policy and provide it to all employees in writing or electronically. If provided electronically, the employees must be able to access the policy on a computer provided by the employer during work hours and print a copy for their records. While the State does not require that employers obtain a signed acknowledgment from their employees, the practice is encouraged as providing evidence of compliance.
While including some formulation of these provisions is mandatory in every sexual harassment policy, the law does not prohibit employers from including additional provisions that go beyond the baseline established by the State’s model policy. Common examples of additional provisions include a warning that false and malicious accusations may result in disciplinary action, a statement that investigations will be handled as confidentially as possible, and policies about fraternization and employee dating. It is also common for sexual harassment policies to include broader anti-discrimination provisions addressing race, gender, age, and/or disability.
Finally, employers are required to have a complaint form for employees to use when reporting incidents of sexual harassment (a model form prepared by the State is included in the employer toolkit linked above). While this was originally required to be a part of the sexual harassment policy itself, a revision after the public comment period now permits employers to simply inform employees of where the form maybe found (ex: company website).
Under the new legislation, employers are required to ensure that all employees, including full-time, part-time, seasonal, and temporary employees, receive sexual harassment training by October 9, 2019, and at least once per year thereafter. This includes employees who work a portion of their time in new York State, even if based in another state. Employees who start their employment after October 9, 2019 must complete their sexual harassment training as soon as possible after their start date. If an employee fails or refuses to take the training, employers are empowered to use administrative remedies to ensure compliance.
The training program itself can consist of a model program developed by the State or comparable training that meets the same minimum standards. While live training is not required, the training must be “interactive,” i.e. require some form of employee participation. This can be satisfied in several ways, such as (1) online programs that ask employees questions (which the employer answers correctly), (2) programs that allow employees to submit questions and get a timely response, (3) having a live trainer (either in-person, by phone or video conference, etc.) answer questions, and/or (4) requiring feedback from employees about the training and materials provided. Training for supervisors or managers should also address the added responsibility for individuals in those roles. Notably, there is no minimum number of training hours per year or per training session.
Finally, training must be specific to the standards and company practices of each employer. As such, an employee’s training from a prior employer in the same calendar year will only suffice where both employers used the same unmodified state training model, or provide training from another shared source (e.g., a training program provided by a shared union).
As of July 11, 2018, New York prohibits all new contracts from including mandatory arbitration clauses, i.e. clauses that require the parties to submit any dispute relating to binding arbitration prior to the commencement of any legal action, for sexual harassment claims. One exception is collective bargaining agreements, which the law provides will be controlling in the event of a conflict with the new law. This provision, codified in CPLR § 7515, does not prohibit the use of mandatory arbitration for other types of claims as part of a contractual agreement.
As of July 11, 2018, employers are prohibited from including or agreeing to terms in any resolution of a claim involving sexual harassment that would prevent the complainant from disclosing the underlying facts and circumstances of the harassment, unless the complainant indicates a preference for such a non-disclosure provision.
To establish that the complainant’s preference, the complainant must be given twenty-one days to consider the terms of any settlement agreement. After twenty-one days, if the claimant wishes to include a non-disclosure provision, it must be memorialized in an agreement signed by all parties. The claimant then has seven days to revoke the agreement, with the agreement only becoming effective after the revocation period expires. Notably, the employer may still propose the inclusion of a non-disclosure provision, provided that the above process is followed.
Any individual elected, appointed, or employed by the State who has been subject to a final judgment of personal liability for intentional wrongdoing in a sexual harassment claim that resulted in an adjudicated award shall reimburse any state agency or entity that made a payment to a plaintiff on the individual’s behalf for his/her share of the judgment within 90 days of such payment. The law also has similar provisions for commissioners, members of public boards or commissions, trustees, directors, officers, employees, or any other person holding a position by election, appointment, or employment in a public entity. This took effect when the law was signed by Governor Cuomo on April 13, 2018.
Bids for state contracts, including public departments or agencies thereof, where competitive bidding is required by law, will require the bidder and each signatory to certify under penalty of perjury that they have a written policy (compliant with the new law) addressing sexual harassment and that they provide annual sexual harassment prevention training. This takes effect January 1, 2019.
Plaintiff owned vacant property in the Town of Wappinger (“Town”), sitting at the end of a private road traversing a bridge. Plaintiff applied for a building permit to construct a new house on the property, but the Town denied the application as there was no legal access to the property as required by Town Law § 280–a and the analogous § 240–20 of the Code of the Town of Wappinger, since the road and the bridge were in such disrepair as to be virtually impassable. Plaintiff then brought an action against the Town, the Town’s code enforcement officer (“CEO”), and the Town’s zoning board of appeals (“ZBA”) for a declaratory judgment that state and local provisions requiring legal access to the property did not apply. The lower court denied Plaintiff’s motion for summary judgment and granted defendants’ cross motion, holding that the proposed construction was governed by Town Law § 280–a(1), and Plaintiff appealed.
On appeal, the Appellate Division, Second Department held that despite Plaintiff’s claims, application of the statute did not produce a result that was absurd, unjust, or at odds with its facially evident purpose. In fact, it found that the plain language of § 280–a was unambiguous and, therefore, there was no basis to consider extrinsic materials to determine the legislature’s intent in enacting the statute. Moreover, even if extrinsic evidence were considered, the legislative history did not support Plaintiff’s claim that his proposed construction was outside the intended scope of the statute. Finally, the Court held Plaintiff failed to make a prima facie showing that application of § 280–a deprived him of a vested right to construct the new house. As such, Plaintiff could not show damages for a categorical regulatory taking based on the denial of all economically beneficial use of the property without just compensation.
Thus, the Court remitted the matter to the Supreme Court, Dutchess County, for a declaration that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 applied to the proposed construction of a dwelling on the subject property.
The case was Kellner v. Town of Wappinger, 145 A.D.3d 676 (2d Dep’t 2016).
New York City recently scored two big wins in its long and high-profile battle against illegal hotels operating in the City, securing a $1.2 million settlement from real estate owner Salim “Solly” Assa, and a separate $1 million settlement with landlords Majid and Hamid Kermanshah. All three had been accused of listing apartments in the buildings they owned as short-term rentals, operating de facto commercial hotels out of the buildings.
The case of Assa, who owns four buildings in midtown Manhattan, is also significant for the terms other than the monetary settlement. NYC had taken legal action against Assa following his failure to answer roughly 100 notices of violation, and alleged that he had entered into business partnership with two brothers who would rent out the apartments at his properties. Though Assa denied any knowledge of wrongdoing, he agreed as part of the setttlement that his four buildings would be overseen by the City and an independent property manager for the next three years.
These two settlements are emblematic of NYC’s approach to regulating short-term rentals following its December 2016 settlement of AirBnb lawsuit over NYC’s new short-term rental advertising law. AirBnb had sued to block the law, which imposed fines of up to $7,500 on hosts who advertised illegal short-term rentals on platforms such as AirBnB, out of concerns it would impose criminal liability on third-party platforms like AirBnB. AirBnB agreed to drop the lawsuit after NYC agreed that the law would not be enforced against the company, but only against individual violators. Since then, the mayor’s Office of Special Enforcement has emphasized large-scale commercial enterprises, with these two settlements representing the largest penalties.
In 2016, New York State enacted a law providing for Paid Family Leave for eligible employees under qualifying circumstances. The program, which begins January 1, 2018 provides eligible employees with wage replacement to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. In addition, employees who take leave are also guaranteed to be able to return to their job and continue their health insurance, though he/she must continue to pay his/her portion of the premium cost while on leave. Collection of the payroll deductions by which the program is funded began on July 1, 2017.
How Paid Family Leave Funded?
Paid Family Leave coverage will be included under the disability policy all employers are required to carry, however the premium will be fully funded by employees through payroll deductions. These deductions, which began on July 1, 2017 are equal to .126% of the gross weekly wage, capped at the statewide wage of $1,305.92. A new maximum rate of employees’ contribution will be set by New York State each year.
Notably, the deduction is mandatory for Full-Time and Part-Time Employees. Seasonal and Temporary employees are not eligible and can opt out if they will not meet the eligibility requirements (discussed below) in a year.
Who Is Eligible For Paid Family Leave?
Nearly every full-time or part-time private employee in New York State is eligible for Paid Family Leave, and participation in the program is not optional such employees. Full-time employees are eligible for the program after 26 weeks of being hired, while part-time employees are eligible for the program after 175 days of being hired. Seasonal or temporary workers may opt out of the program unless their assignment will be for at least 26 continuous weeks or 175 days.
Furthermore, unlike the federal Family Medical Leave Act, employers are prohibited from requiring that employees take all of their sick leave and/or vacation before using Paid Family Leave. Employees who wish to receive full pay while on Paid Family Leave may be still utilize their available sick or vacation leave, but this is not required to take leave.
Under What Circumstances May Leave Be Taken?
As described more fully below, leave may be taken to help a parent bond with a child, to care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. However, Paid Family Leave may not be used for an employee’s own disability or qualifying military event.
Employees who are expecting, fostering or adopting a child, may be entitled to take time to care for and bond with their child. With proper documentation, eligible employees may be eligible for up to eight (8) weeks of Paid Family Leave (rising to 12 weeks by 2021). Paid Family Leave only begins after birth and is not available for prenatal conditions. An eligible employee may take Paid Family Leave during the first 12 months following the birth, adoption, or fostering of a child.
Employees who need to care for a close relative suffering from a serious health condition may be eligible for Paid Family Leave commencing in 2018. A close relative includes one’s spouse, domestic partner, child, parent, parent in-law, grandparent, or grandchild.
With respect to qualifying medical conditions, a serious health condition is any illness, injury, impairment, or physical or mental condition that involves either in-patient care in a hospital, hospice, or residential health care facility; or continuing treatment or continuing supervision by a health care provider.
Paid Family Leave is available for employees eligible for time off under the military provisions in the federal Family Medical Leave Act when a spouse, child, domestic partner or parent of the employee is on active duty or has been notified of an impending call or order of active duty.
How Much Leave Is Available And At What Rate?
For example, in 2018, an employee making $1000 a week would receive a benefit of $500 a week (50% of $1000), while an employee making $2,000 a week would receive $648 a week, or half of New York State's Average Weekly Wage (NYSAWW). The NYSAWW, currently $1,296, will be set every year after a comprehensive analysis by the New York State Department of Labor. Employees may take the maximum benefit length, as shown above, in any given 52-week period. The 52-week clock starts on the first day the employee takes Paid Family Leave.
After familiarizing themselves with the new law, employers should also take steps to notify employees of the law and its benefits, as well as the new payroll deduction. Employers should also update their employee handbooks to ensure they conform with the new law, and coordinate with the payroll department so that the required deductions are being withheld.
On December 2, 2016, Airbnb entered into a tentative settlement agreement with New York City in its legal challenge to the City’s short-term rental law. The law at issue, signed into law by Governor Cuomo in October 2016, imposes fines as high as $7,500 for illegally listing a short-term (less than 30 day) home rental in a multi-family building unless the host is present. The law’s intended targets were individuals who rent multiple apartments in the City, only to turn around and repeatedly rent them out through Airbnb. Critics allege that this practice, which is technically operation of an illegal hotel, has reduced the availability of affordable housing in the City. Airbnb brought an action challenging the law shortly after passage, arguing it was vague with respect to whether the host or Airbnb would be subject to the fine.
Under the terms of the agreement, which became official on December 5, 2016, Airbnb agreed to drop its lawsuit in exchange for an agreement that the City would limit the imposition of fines to hosts, and not Airbnb itself. In addition, the New York State Attorney General agreed that enforcement of the law would be left to New York City. For its part, Airbnb further vowed stricter enforcement of its newly announced “One Host, One Home” policy, which prohibits users from listing more than one property on the site.
Though some have framed this agreement as a capitulation by Airbnb, the agreement is in many ways a win-win scenario for both parties. Airbnb users in New York City generated nearly $1 billion worth of bookings last year, of which Airbnb takes between 6% and 12% in fees (depending on the price of the booking). By making this agreement, Airbnb protects that important revenue stream, while ensuring it will not be subject to heavy fines under the new law for illegal conduct by its users. At the same time, the government gets to notch a victory and end a practice that has caused outrage among tenants rights groups.
On November 22, 2016, Judge Amos Mazzant of the Eastern District of Texas issued a nationwide preliminary injunction blocking the U.S. Department of Labor's new overtime rule from taking effect on December 1, 2016. The new rule would have raised the minimum salary threshold for the white-collar exemption to $47,475, expanding overtime eligibility to roughly 4.2 million additional workers nationwide. Judge Mazzant's ruling and the attitude of the incoming Republican Congress leave the future of this rule in doubt.
Judge Mazzant's preliminary injunction arose from a lawsuit filed by 21 state attorneys general and a coalition of business groups who sued to block the new overtime rule as exceeding the Department of Labor's authority. In his decision, Judge Mazzant found that minimum salary test, which has been in effect since the 1940s, supplants the duties test for the executive, administrative and professional (i.e. "white-collar") exemption. Thus, based upon the plain text of the statute, the Court concluded that "[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change."
Though the preliminary injunction is temporary, it signals trouble for the future of the new overtime rule. If the rule is struck down, as the initial ruling suggests it might, the appeal would be heard by the conservative 5th Circuit Court of Appeals. In addition, Republican Congressional leadership has suggested that Congress will use the Congressional Review Act to permanently block the rule come mid-January. Either way, employers who have given raises or made changes in advance of the new rule now find themselves the difficult position of deciding how to move forward.
New York employers should be aware that the New York Department of Labor has proposed state-level increases to the minimum salary level for executive and administrative exempt employees. These regulations are expected to be finalized next month and take effect December 31, 2016.
This is a continuation of our previous post, discussing a FMLA retaliation claim brought by an employee who was allegedly terminated for failing to meet the documentary requirements of the FMLA, and her subsequent claim against her former employer, supervisor, and the company’s HR director. Please refer to our last post for the background of this case, as this post will focus on the Second Circuit’s subsequent reversal of the District Court’s grant of summary judgment for the Defendants.
With respect to individual liability for the HR director (Plaintiff did not challenge dismissal of the claims against her supervisor), the Second Circuit noted that the FMLA defines an “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” While the Second Circuit has not examined this clause directly, its sister courts have found that the FMLA definition tracks with the Fair Labor Standards Act definition. The Second Circuit concurred, and applied the “economic-reality test.” Under this test, courts ask “whether the alleged employer possessed the power to control the worker [ ] in question, with an eye to the ‘economic reality’ presented by the facts of each case,” based upon factors including “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Applying these factors, the Second Circuit held there was substantial evidence from which a rational trier of fact could find that the HR director was an “employer,” vacating the District Court’s dismissal of the individual liability claims. Specifically, the Court noted the substantial delegation of power from the company president regarding the decision to fire Plaintiff to the HR director, the HR director’s control over Plaintiff’s schedule to the extent she determined the conditions for Plaintiff’s return from FMLA leave, and the HR director’s extensive and exclusive communication with Plaintiff regarding the dispute with the company.
This decision was also notable as the Court formally adopted the prima facie standard for FMLA interference used by the District Courts. Under this standard, to prevail on a claim of interference with FMLA rights, “a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.” Applied to the facts of the instant case, the Second Circuit found that there were material questions of fact with respect to factors three and four. Accordingly, it held that dismissal was inappropriate and vacated the decision.
The case is Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016).
Generally speaking, the Family Medical Leave Act (“FMLA”) (29 U.S.C. §§ 2601 et seq.) allows employees to take leave from their employment to care for family members under a variety of circumstances. This case addresses an employee who was allegedly terminated for failing to meet the documentary requirements of the FMLA, and her subsequent claim against her former employer, supervisor, and the company's HR director.
Plaintiff filed suit in federal court against the company, her supervisor, and the HR director for interference with FMLA leave, and FMLA retaliation. The District Court granted summary judgment to the Defendants on all claims, holding (1) the supervisor and HR director were not an “employer” subject to individual liability under the FMLA, (2) Plaintiff could not sustain FMLA interference because she had not been denied leave to care for her older son, and, having failed to submit a medical certification form, had no entitlement to care for the younger son, and (3) Defendants offered legitimate reasons to terminate Plaintiff and Plaintiff had not demonstrated these reasons were pre-textual. Plaintiff appealed, and the Second Circuit vacated the grant of summary judgment on the FMLA claims.
Our next post will look at the Second Circuit’s reasoning. The case is Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016).
Here, Defendant employed by Plaintiff as the Director of Parks and Recreation, and was responsible for the collection of various fees on Plaintiff’s behalf. In April 2014, Defendant pleaded guilty to grand larceny in the third degree, having stolen more than $50,000 over the course of nearly six years. Thereafter, Plaintiff commenced the instant action to recover all compensation paid to the Defendant during that period and a declaration that Plaintiff had no obligation to continue providing health insurance. The Supreme Court granted summary judgment on the issue of liability, but concluded triable issues of fact remained as to Plaintiff's entitlement to damages under the faithless servant doctrine, noting Defendant’s “otherwise ‘unblemished’ 35 years of service. Plaintiff appealed.
On appeal, the Appellate Division, Third Department reversed, holding that “forfeiture of compensation is required even when some or all of the services were beneficial to the principal or the principal suffered no provable damage as a result of the breach of fidelity by the agent.” As there as conclusive proof that Defendant had stolen over $50,000 during the six-year span, Plaintiff was entitled to recover damages. In addition, there is no basis for apportioning the forfeiture to the specific tasks about which Defendant was disloyal where payment was not made on a task-by-task basis pursuant to a contractual agreement. Thus, for a salaried employer such as the Defendant, forfeiture encompasses all compensation earned by the Defendant during the period in which he was disloyal (here, $316,535.54).
Should you find yourself in a situation where an employee has consistently acted in bad faith towards you and your business, whether through theft, embezzlement, falsifying records, or other misdeeds, the faithless servant doctrine may be a way to recoup the losses you’ve suffered.
The case was City of Binghamton v. Whalen, 32 N.Y.S.3d 727 (3d Dep’t 2016).
This is a continuation of our post from two weeks ago, which looked at the new regulations issued by EEOC (“Final Rule”) on wellness programs. Whereas the previous post looked at the Americans with Disabilities Act (“ADA”), this post will focus on changes related to the Genetic Information Nondiscrimination Act (“GINA). Finally, as noted in our prior post, the Final Rule is effective immediately, but employers have until the first day of an employer’s plan year beginning on or after January 1, 2017 to comply with the amended notice and incentive provisions.
Generally speaking, GINA prohibits employers from requesting, requiring or purchasing genetic information from their employees, except in the context of a voluntary wellness program that does not condition employee inducements on the provision of genetic information. However, there was some ambiguity as to how the law treated inquiries regarding employee’s family members in the context of an employer-sponsored wellness plan.
Under the Final Rule, employers may offer a limited inducement to an employee whose spouse provides information regarding the spouse’s manifestation of any diseases or disorders as part of a health risk assessment (subject to the same limitations discussed in the previous post regarding the ADA). The maximum value of an inducement for a spouse’s participation is 30% of the total cost of self-only coverage (the same incentive that may be given to the employee). However, employers still may not offer an inducement for the employee’s spouse or children to provide genetic information, nor for information about the manifestation of disease or disorder by an employee’s children.


19-4004. Same; tax levies, use of proceeds; protest petition and election; issuance of bonds. In all counties wherein the board or boards of county commissioners in the event of a combination of counties has established a governing board, the respective board or boards of county commissioners may levy an annual tax upon all taxable tangible property in such county for mental health services and to pay a portion of the principal and interest on bonds issued under the authority of K.S.A. 12-1774, and amendments thereto, by cities located in the county. The respective board or boards of county commissioners may also levy an additional annual tax upon all taxable tangible property in such county for intellectual disability services and to pay a portion of the principal and interest on bonds issued under the authority of K.S.A. 12-1774, and amendments thereto, by cities located in the county. The additional levy authorized by this section for intellectual disability services shall not be made until a notice of intent to make such levy has been published in a newspaper of general circulation in the county or counties involved by the board or boards of county commissioners proposing to make such levy, and such notice shall state that if a petition signed by 5% of the electors of the county shall file a protest petition within 60 days of the date of such publication a proposition will be submitted at an election called for the purpose in the county for approval of the levy; if such proposition is approved or if no sufficient protest is made, then the board or boards of county commissioners shall levy such tax, but if a sufficient protest is made and such proposition is not approved, the levy will not be made. The proceeds thereof shall be placed in the hands of the appropriate governing board to be administered as provided by this act.
In addition thereto, to provide for the purchase of or the construction of facilities for the community mental health center or facility for people with intellectual disability, or both, the board or boards of county commissioners, upon petition of the governing board, may levy an annual tax on all taxable tangible property in their county and to issue and sell general obligation bonds of such county, for the purpose of creating and providing a special fund to be used in acquiring a site for, and the building, equipping, repairing, remodeling and furnishing of a community mental health center or facilities for people with intellectual disability, or both, or for any one or more of such purposes. The additional levy authorized by this section shall not be made until a notice of intent to make such levy has been published in a newspaper of general circulation in the county or counties involved by the board or boards of county commissioners proposing to make such levy, and such notice shall state that if a petition signed by 5% of the electors of the county shall file a protest petition within 60 days of the date of such publication a proposition will be submitted at an election called for the purpose in the county for approval of the levy; if such proposition is approved or if no sufficient protest is made, then the board of county commissioners will make the levy of such tax, but if a sufficient protest is made and such proposition is not approved, the levy will not be made. The board of county commissioners shall proceed in the manner prescribed to be followed in such notice. The tax levy may be made annually until sufficient funds have been created for the purpose or purposes, or if the county has issued and sold general obligation bonds, the proceeds raised by the annual tax levy shall be used to retire the general obligation bonds and the tax levy shall continue until the general obligation bonds have been retired. Such federal, state or private funds as may be available may be accepted by the board of county commissioners to be placed in the fund for operation of or construction of a community mental health center or facility for people with intellectual disability, or both, as the case may be. Title to the building or buildings of the community mental health center or facility for people with intellectual disability, or both, shall vest in the governing board which is responsible for the maintenance and operation of the facilities if a combination of counties has established the center, but, if only one county has established the mental health center or facilities for people with intellectual disability, title shall vest in the board of county commissioners of such county. If the board of county commissioners has contracted with a nonprofit corporation to provide mental health services under K.S.A. 19-4007, and amendments thereto, the title to the building or buildings, in the discretion of the board of county commissioners, may vest in the board of county commissioners or the nonprofit corporation providing mental health services, and the board of county commissioners may allow the nonprofit corporation to use the buildings without charge.
History: L. 1961, ch. 292, § 4; L. 1965, ch. 195, § 1; L. 1970, ch. 115, § 4; L. 1975, ch. 162, § 26; L. 1975, ch. 163, § 2; L. 1979, ch. 52, § 130; L. 1999, ch. 154, § 39; L. 2002, ch. 176, § 8; L. 2012, ch. 91, § 9; July 1.


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(September 25, 2018) The Constitution requires three branches of government. This separation of powers would prevent tyranny. In reality, however, they also have to work together. And there’s the rub. No matter who becomes the next Supreme Court Justice, these issues play a central role.
Congress — the legislative branch — passes laws and the executive branch enacts them, and if something doesn’t work, folks sue via the judiciary branch. During his Supreme Court confirmation hearing, nominee Brett Kavanaugh explained that the fact that something comes before the court sometimes means that the statute needs to be changed, that it doesn’t work. Judges and justices can make clear in their opinions which issues Congress needs to be aware of. And then it’s back to the legislative branch.
Chevron Deference — a.k.a. Chevron Doctrine or Chevron Test — came up a lot, and it’s clear why. It speaks directly to the separation of powers between the three branches of government. When the EPA came under a new leadership after President Reagan succeeded President Carter, it lowered its standards for permit requirements for polluters, claiming that was okay and didn’t change anything in the Clean Air Act as long as the overall pollution didn’t increase. Or something like that. The environmental protection group the Natural Resources Defense Council challenged the new interpretation of the Clean Air Act in court. The lower courts ruled in favor of the Natural Resources Defense Council, but Chevron appealed and it went to the Supreme Court.
So the question before the Court was: To what degree could administrative agencies — in this case the EPA — interpret how to enact statutes written by Congress, and to what degree, if any, should the courts be the place to duke out this battle between the legislative branch that writes a law (Congress) and the executive branch (a government department) that has to enact it?
In Chevron v. Natural Resources Defense Council, the Supreme Court decided that in cases where Congress has not clearly and specifically written in a statute how it should be enacted, or where the writing is ambiguous (statutory ambiguity), the courts should look to see if the executive agency charged with administering the law has applied a reasonable interpretation of the statute. If an agency’s interpretation is reasonable, even if it’s not the most reasonable interpretation, it stands. This was already more or less how things worked in cases of statutory ambiguity, but Chevron clearly formulated it and it quickly became precedent for many other cases involving statutory ambiguity.
There can be a tension between politicians in Congress who write laws, and administrative agencies that then interpret them, which often involves creating regulations. Or getting rid of regulations. When a Democrat is president, he or she heads all the government agencies with like-minded people, and an agency like the EPA will likely create as many regulations to protect the environment as it can. Which will give the Republicans the heebie-jeebies. On the other hand, when a Republican is president, he or she replaces all those Democrat heads of adminstrative agencies with Republicans, and the head of the EPA will most likely be someone who starts doing away with as many regulations as possible. Which drives the Democrats to distraction.
On Day Three of the hearing, Senator Lee (R-UT) brought up that Judge Kavanaugh had been accused of leading the attempt to delete administrative agencies, and he gave him the opportunity to clarify. Kavanaugh said that his record shows that he’s ruled both against and in favor of government agencies, and that he sees Chevron as a ruling for reasonable agencies. Which is interesting, because he seems to make the leap here from Chevron being a test to determine if an agency has a reasonable interpretation of a law, to Chevron being a test to determine if the very existence of an agency itself is reasonable or not.
Senator Flake (R-AZ) also brought up Chevron on Day Three. He pointed out that Chevron Deference can not only stretch the meaning of the law by leaving the details up to the administrative agencies, it in effect moves law-making to the other branches — to the executive branch by letting the agencies hammer it out, or to the judiciary branch by letting the courts determine if a statute is ambiguous or not. And Kavanaugh added that there is no neutral standard for statutory ambiguity, for determining how much ambiguity is enough to say that a statute is ambiguous. So two justices could disagree on the level of ambiguity, and that’s a problem.
On Day One, Senator Sasse (R-NB) complained that the Supreme Court has become the arena of political debate about legislature because the legislative branch moves their responsibility “on to the next branch, to the alphabet-soup agencies,” and that a lot of this has been happening for a century. Congress gives permission to departments to write legislation that Congress doesn’t understand, and the rules often include lines like that the department will ‘make rules’ to carry out laws. He also argues that giving away power in this way helps incumbency, because if you don’t legislate, you can’t be unpopular. However, the people are cut out of the process when the legislature is written by department bureaucrats who can’t be held to account. When Congress is neutered, when the bureaucrats — who can’t be fired — are the legislators, the Supreme Court becomes the political battleground, because it’s the only way the people can fight legislature that’s created in a bureaucracy. Sure, he’s got a point.
Senator Kennedy (R-LA) felt that Chevron Deference encourages misbehavior. A congressman can get legislation through even if the Senate doesn’t approve it, by having an administrative agency write it with lots of statutory ambiguity, and then a judge calls it ambiguous “and then we can do whatever we want to do”. Kavanaugh said that he had encountered real-world examples of this legislative branch shift of power to the executive branch, and that there are several ways to avoid that. One is nationwide injunctions: one federal district judge can enjoin a law or regulation for the entire country even if no other judge agrees. (What! They can do that?! I must find out more.) He didn’t get around to the other ways to avoid shifting lawmaking to the executive branch, because Kennedy moved on to something else.
Senator Crapo (R-ID) let Kavanaugh continue, though. He said that since 1999 a Major Questions Doctrine has been in place that limits Chevron somewhat. For major-cases rule making, deference to agencies does not apply, and we expect Congress to speak clearly if it wants to assign rule-making of significance to administrative agencies.
It’s interesting that it was only the Republicans who seem to have such a big problem with Chevron Deference. Or more generally, with the fact that government agencies hash out the details of a statute passed by Congress. What do they expect? Sure, in theory Sasse had a point, that the bureaucrats aren’t elected, but you also have to be practical. Congress is made up of politicians, representatives of the people (in theory anyway), who deal with every issue under the sun. So they write laws: clean the air, prevent food poisoning, educate the kids. It would be unreasonable to expect them to come up with all the details. There are three groups who are capable of doing that: government agencies, public interest groups and special interest groups. The last two should be heard, but in the end it makes sense that the administrative agencies fill in the details of the laws Congress passes. These agencies can hire experts in each field so that the laws are enacted in a way that makes sense. Why am I even explaining this?
Of course the other big issue regarding the separation of powers between the three branches of government facing the committee was that we have a Republican-majority Congress, a Republican president and a Republican-majority Supreme Court, so if President Trump needs to be indicted or investigated or subpoenaed, the will on the part of the government to do that is already barely there.
Senator Flake quoted Trump’s tweet to Attorney General Jeff Sessions, in which he chewed him out for finding two Republican congressmen guilty of corruption right before the midterms. He asked Kavanaugh if a president should be able to pressure the judiciary branch into doing his bidding. Kavanaugh replied that Congress passed plenty of laws that guarantee that the president doesn’t act inappropriately. But Trump did act inappropriately and Congress did nothing. He has no respect for the three branches of government, or no understanding that his place is the executive branch only, and nobody tells him he’s abusing his presidential power. There are no repercussions.
Senator Blumenthal (D-CT) laid out the Democrats’ concern: the president who nominated Kavanaugh is characterized as an unindicted co-conspirator in a criminal case. Some of the issues the Supreme Court may be confronted with in the near future are Trump’s refusal to comply with a subpoena, or meddling in or preventing his own indictment. Would Kavanaugh recuse himself in those cases? He wouldn’t say.
Senator Sasse asked Kavanaugh what the limits are to executive power. His answer was a standard civics list: The president’s elected. He serves a term. He presides over only one of the three branches of government. He doesn’t have the absolute power to make laws, Congress does that. He doesn’t have the power to adjudicate disputes, the judiciary does that. Even as commander in chief he is not above the law; Congress has substantial power in the war powers arena. The president does not have the ability to unilaterally take the country into war. The president does not have unilateral appropriations powers. And he’s not above criminal law, because “it’s foundational in the Constitution that nobody is above the law”.
In the past Kavanaugh wrote that he believed a president should be able to fire a special counsel. That would include a special investigator like Mueller. But he has also pointed out that Humphrey’s Executor is Supreme Court precedent for not firing him, and that Congress put an extra rule in place after Nixon fired the first special prosecutor investigating him, so that he couldn’t fire the second one. So, if Trump decided to fire Mueller, would Kavanaugh’s (past) belief that the president should have broad executive power weigh more, or would his love of precedent make him look to Humphrey’s Executor and U.S. v. Nixon and decide that the president can’t fire the people who are investigating him? And which people are we talking about? Because if he is allowed to fire his first special prosecutor and he then appoints another, and he’s luckier than Nixon and the next one does do his bidding, it doesn’t matter if Congress creates a special regulation preventing Trump from firing the second person, because he won’t have to.
Would Kavanaugh uphold a grand jury subpoena for information from Trump? Again, it depends on what wins out, his views on broad presidential power or U.S. v. Nixon. But even that is not clear cut, because, as Senator Whitehouse (D-RI) pointed out, every time Kavanaugh mentioned U.S. v. Nixon, he made sure to say that it is precedent for a trial jury subpoena. He wouldn’t say if it is useful precedent for a grand jury subpoena.
Whitehouse: There has never been a statute or a law determining indictment of presidents, correct? Kavanaugh: There is no law that Congress has ever passed, any law that protects the president from criminal investigation or indictment. Whitehouse: So then there would have to be a constitutional law about it, right? Kavanaugh: No, the Department of Justice can have a law about it. Whitehouse: It would be a real stretch to call department policy law. Kavanaugh: Internal regulations are a sort of law.
So which is it — are the Justice Department policies just policies or are they “a sort of law”?
Then there’s Trump’s claim that he can pardon himself. I suppose this one was too ludicrous to waste time on. At least, I hope that’s the reason it wasn’t really addressed. I would assume that if nobody is above the law, not even the president, that that means he can’t pardon himself. But, as the above shows, it’s impossible to know — based on the hearing — how Kavanaugh would rule.
This post is Part 2 in the series Supreme Court Nominee Brett Kavanaugh. Here is the next one.
Chevron Deference. Wex Legal Dictionary. Legal Information Institute. Cornell Law School. https://www.law.cornell.edu/wex/chevron_deference.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Wikipedia. https://www.wikiwand.com/en/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.
Graham, David A. The Proud Corruption of Donald Trump (Politics) The Atlantic, September 4, 2018. https://www.theatlantic.com/politics/archive/2018/09/trump-sessions-justice-department-hunter-collins/569239/.
Humphrey’s Executor v. United States, 1935. Oyez. Justia Supreme Court Center. https://www.oyez.org/cases/1900-1940/295us602.
Major Questions Doctrine. Conservapedia. https://www.conservapedia.com/Major_questions_doctrine.
Unitary Executive Theory. Wikipedia. https://www.wikiwand.com/en/Unitary_executive_theory.
United States v. Nixon, 1974. Oyez. Justia Supreme Court Center. https://www.oyez.org/cases/1973/73-1766.
Posted on September 25, 2018 April 11, 2019 by Barbara Backer-GrayPosted in THE THREE BRANCHES OF GOVERNMENT, SUPREME COURT, SEPARATION OF POWERSTagged Supreme Court, Separation of Powers, three branches of government, Brett Kavanaugh, Kavanaugh confirmation hearing, presidential power, unitary executive theory, statutory ambiguity.
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