Mark Stadnyk Challenges a Sweeping Revision in Patent Law

The following is an excerpt from an article in 

The New York Times
Monday, August 27, 2012

Mark Stadnyk Challenges a Sweeping Revision in Patent Law

By STEVE LOHR

In Silicon Valley, Apple just won big against Samsung in the patent lawsuit of the year, after trading claims and counterclaims of pilfered product ideas. Across the country, in a federal court in Florida, an inventor named Mark Stadnyk is waging a different kind of patent warfare — an ambitious and perhaps quixotic legal foray.

Mr. Stadnyk, who holds a patent on a motorcycle windshield, is suing the United States government, aiming to head off a patent law that he says will favor big companies and hurt lone inventors like himself.

Represented by a prominent Washington lawyer, Mr. Stadnyk filed a suit last month that challenges the constitutionality of legislation that Congress passed last fall, the America Invents Act. Mr. Stadnyk and his lawyer — along with some academics, entrepreneurs and venture capitalists — assert that the legislation is a triumph of corporate lobbying power over the founders’ wishes, and that it threatens America’s stature as the world’s leading innovator.

The present system, one of the nation’s oldest patent principles and called “first to invent,” relies on lab notebooks, e-mails and early prototypes to establish the date of invention. The impending law would overturn that by awarding patents to the inventors who are “first to file” with the United States Patent and Trademark Office.

Mr. Stadnyk, 48, a garage inventor who stumbled into the world of patents after he bought a powerful new motorcycle and wanted to avoid being battered by the wind when riding at 60 miles an hour, even with a windshield. He devised a system of brackets and gears to adjust the height and angle of the windshield and the gap between it and the motorcycle. With his system, he says, the rider feels a flutter of breeze instead of jolting winds and turbulence.

Mr. Stadnyk, who describes his invention style as “rough hacking with chunks of metal,” founded his company, MadStad Engineering, in 2006, and as sales picked up, he stopped working as a computer consultant to devote himself to the business.

Today, MadStad employs eight people, including Mr. Stadnyk and his wife, Patty. His adjustable windshield systems, priced from $100 to $320, are now used on dozens of makes and models of motorcycles, and are sold through dealers in Australia, Britain and Spain, as well as the United States. Yearly sales, he said, are more than $500,000 and growing briskly.

Mr. Stadnyk holds three patents, and he speaks of a patented idea as a uniquely human property right. “It came out of your mind,” he explained. “It’s not property you bought or inherited.”

Mr. Stadnyk became interested in the patent legislation as it proceeded. He says he studied the proposals and the law, read blogs and reached out to Washington lawyers and academics who raised the issue of its constitutionality. A grass-roots activist, he even made a couple of YouTube videos.

The shift to a first-to-file system, scheduled to take effect next March, is intended to simplify and streamline the current system, which can invite protracted litigation between competing inventors. The switch would also put the United States in harmony with patent offices in Europe, Japan and elsewhere, allowing them to share information and potentially ease the strain on overburdened patent examiners worldwide.

For more, visit www.nytimes.com.

News Release from EPA Region 10 - FIFRA

EPA ensures Oregon distributor properly labels pesticides

Contact Info: Chad Schulze, EPA FIFRA Program, 206-553-0505, schulze.chad@epa.gov
Tony Brown, EPA Public Affairs, 206-553-1203, brown.anthony@epa.gov

(Seattle – March 1, 2012) Wilbur-Ellis Company, an international distributor of agricultural products located in Hood River, Oregon violated federal pesticide laws by repeatedly omitting important manufacturing information on product labels, according to a settlement with the U.S. Environmental Protection Agency.

The settlement follows an Oregon Department of Agriculture inspection of Wilbur-Ellis’s facility in 2010. Inspectors found that Wilbur-Ellis sold and distributed mislabeled “Supreme Oil,” an insecticidal spray, 37 separate times. The EPA immediately issued a Stop-Sale Order for the product and helped bring the company into compliance.

According to Scott Downey, manager of the EPA's pesticide unit in Seattle, proper labeling of pesticides is key to protecting people’s health and the environment.

“Sellers and distributors of pesticides know that proper labeling is the law.” Downey said. “These laws help ensure that agencies can track problem pesticides back to the producer when needed to protect public safety.”

Wilbur-Ellis has had similar violations of the federal Insecticide, Fungicide, and Rodenticide Act in the past. The company has agreed to pay a $50,320 fine for the violations and has committed to revising its labeling practices.

Supreme Oil is a plant-based insecticidal spray that controls a wide variety of insect pests on fruits and vegetables.

Facebook: Risk & Riches

Excerpt from an article in

The New York Times

Monday, February 27, 2012

For Facebook, Risk and Riches in User Data

By SOMINI SENGUPTA

SAN FRANCISCO — It is Facebook’s biggest conundrum. As the world’s largest social network, it faces intense scrutiny from consumers, courts and regulators worldwide over how it handles the data it collects from its 845 million users. But as a company preparing to go public, it is under pressure to find new ways to turn that data into profit.

The scrutiny is at its most intense in Europe. Regulators in Ireland, where Facebook has its European headquarters, have already demanded that it give users greater control over their information. A proposed Europe-wide law goes much further by requiring Facebook, along with every other online business, to expunge every bit of personal data at a consumer’s request.

In the United States, Facebook faces government audits for the next 20 years about how it collects and shares data, along with an assortment of lawsuits that accuse the company of tracking users across the Web. Even the White House stepped into the fray last week, demanding that Web companies give users more say in how their personal data is used.

Facebook is not the only company dealing with these issues, but it is especially vulnerable because its very business model relies on the fire hose of information that its users willingly share. “We are in very turbulent and unpredictable times when it comes to privacy regulations,” said J. Trevor Hughes, a lawyer who leads the International Association of Privacy Professionals. “We see regulators with a sense that something needs to be managed better, but without the tools.”

The result is a cloud of uncertainty for Facebook, which is expected to go public this spring. Among the risk factors listed in Facebook’s filing for a public offering is the prospect of “adverse changes in our products that are mandated by legislation, regulatory authorities, or litigation, including settlements or consent decrees.”

Neither Admit Nor Deny

Excerpt from an article in The New York Times
Saturday, February 25, 2012

‘Neither Admit Nor Deny’ Settlements Draw Judges’ Scrutiny 

By EDWARD WYATT

WASHINGTON — The entrenched practice of allowing companies and individuals to settle federal regulatory charges without admitting that they actually did anything wrong is coming under growing scrutiny by the courts.

Two federal judges have questioned such settlements proposed by the Securities and Exchange Commission and this week a third judge held up a settlement offered by the Federal Trade Commission.

Judge Renee Marie Bumb of United States District Court in Camden, N.J., blocked a proposed settlement on Wednesday between the Federal Trade Commission and a marketing company based in New Jersey on charges that the company and its chief executive made false and unsubstantiated claims that the use of açaí berry-based products, which they promoted, would result in rapid and substantial weight loss.

Judge Bumb ordered both the commission and the company to justify why she should approve the proposed $11.5 million settlement when the lack of an admission by the company and the executive of any wrongdoing left her with no facts with which to judge whether the negotiated deal was fair, adequate and in the public interest.

In doing so, she cited a much-discussed case involving the S.E.C. and Citigroup. Last November, Judge Jed S. Rakoff of Federal District Court in New York rejected a proposed $285 million settlement of securities fraud charges for the same reason: without an admission of guilt or agreed-upon facts there was no basis for an approval.

And on Friday, an S.E.C. commissioner, Luis A. Aguilar, told a group of securities lawyers that a recent attempt to tighten the agency’s policy of allowing a company to settle a fraud case while neither admitting nor denying any wrongdoing “applies in so few situations, it needs to be revised to be more useful and effective.”

While another S.E.C. case in Wisconsin, where a federal district judge in December challenged an S.E.C. settlement, was subsequently approved, the cases demonstrate that Judge Rakoff’s challenge of the “neither admit nor deny” settlement is reverberating beyond Wall Street and New York.

That is not what securities law experts expected last November, when Judge Rakoff issued the ruling.

At the time, the consensus was that the decision was unlikely to affect cases involving other regulatory agencies or in other jurisdictions.

Because the proposed settlements included a permanent injunction against further wrongdoing by the defendants, they are subject to approval from a federal judge. But Judge Rakoff argued that the judiciary should not be considered a rubber stamp to approve executive-branch enforcement cases.

Lawyers both inside and outside the S.E.C. argued that the “neither admit nor deny” settlements were perhaps the only way to get companies to settle fraud cases, because to admit wrongdoing would open them to civil damages. (Emphasis added by me.)

An appeal of Judge Rakoff’s decision by the S.E.C. is pending at the Second Circuit Court of Appeals in New York.

Copyright Cheats Face the Music in France

Excerpt from an article in The New York Times
Monday, February 20, 2012

Copyright Cheats Face the Music in France 

By ERIC PFANNER

PARIS — The curtain has risen on the third act of one of the most ambitious French musical productions, one whose goal is to end digital piracy.

More than two years after France approved a tough crackdown on copyright cheats, the agency that oversees it sent its first cases to the courts last week. Some repeat offenders may temporarily be cut off from the Internet.

Studies show that the appeal of piracy has waned in France since the so-called three-strikes law, hailed by the music and movie industries and hated by advocates of an open Internet, went into effect. Digital sales, which were slow to get started in France, are growing. Music industry revenues are starting to stabilize.

“I think more and more French people understand that artists should get paid for their work,” said Pascal Nègre, president of Universal Music France. “I think everybody has a friend who has received an e-mail. This creates a buzz. There is an educational effect.”

But the curtain has not yet come down for the fallen file-sharers. As a presidential election nears, opposition to the law is heating up.

Rivals of President Nicolas Sarkozy, who championed the measure, say that it infringes on civil liberties. His opponents, building on the momentum from a successful campaign to defeat two U.S. congressional bills aimed at curbing piracy, as well as a swell of protest against an international copyright treaty, want to repeal or revamp the French law.

The agency that administers the three-strikes system, known by the French abbreviation Hadopi, had sent 822,000 warnings by e-mail to suspected offenders as of the end of December. Those were followed up by 68,000 second warnings, issued through registered mail. Of those, 165 cases have gone on to the third stage, under which the courts are authorized to impose fines of €1,500, or nearly $2,000, and to suspend Internet connections for a month.

Maryland Company Settles Pesticides Violations

News release from EPA Region 3:

Maryland Company Settles Pesticides Violations

PHILADELPHIA (February 9, 2012) -- PAMEX Foods, Inc. of Forestville, Md., has agreed to pay a $158,880 civil penalty to settle alleged violations of federal pesticide regulations, the U.S. Environmental Protection Agency announced today.

EPA cited PAMEX for violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), a federal law requiring the registration of pesticide products and pesticide-production facilities, and the proper labeling of pesticides.

FIFRA's requirements protect public health and the environment by ensuring the safe production, handling and application of pesticides; and by preventing false, misleading, or unverifiable product claims. FIFRA also prohibits the marketing of misbranded, improperly labeled, or adulterated pesticides.

EPA alleged that PAMEX violated FIFRA by selling two unregistered pesticides, Fabuloso Aroma de Bebe and Clorox Magia Floral, from its distribution facility located at 7900 Parston Dr., Forestville, Md. Fabuloso Aroma de Bebe, marketed as an antibacterial product, was sold 161 times, and Clorox Magia Floral, marketed as a disinfectant, was sold once.

As part of the settlement, the company neither admitted nor denied liability for the alleged violations, but has certified that it is now in compliance with FIFRA requirements.

For information about pesticides, call EPA's hotline at: 1-800-858-7378.

The U.S. Environmental Protection Agency also offers a hotline for Spanish-speaking citizens: a toll-free hotline where questions can be answered about pesticides. The Hotline Number is 1-888-919-4372.

For more information about EPA's pesticide program, visit: www.epa.gov/pesticides/.

Note: If a link above doesn't work, please copy and paste the URL into a browser.

Austrian Law Student Faces Down Facebook

Excerpt from an article in The New York Times

Monday, February 06, 2012

Austrian Law Student Faces Down Facebook

By KEVIN J. O'BRIEN

BERLIN — As Wall Street prepares for a record, multibillion-dollar initial stock sale from Facebook, the social networking site, a meeting with the potential to shape the economics of the deal was set to take place Monday in Vienna.

Richard Allan, a former member of Parliament in Britain who is the European director of policy for Facebook, and another executive from Facebook’s headquarters in Menlo Park, California, will meet with Max Schrems, a 24-year-old college student.

Mr. Schrems, a law student at the University of Vienna and a user of Facebook since 2008, has led a vocal campaign in Europe against what he maintains are Facebook’s illegal practices of collecting and marketing users’ personal data, often without consent.

In less than a year, Mr. Schrems’s one-person operation has morphed into a Web site, Europe Versus Facebook, and a grass-roots movement that has persuaded 40,000 people to contact Facebook in Ireland, where its European headquarters are located, to demand a summary of all the personal data the U.S. company is holding on them.

Mr. Schrems and his crusade have become a cause célèbre in parts of Europe, attracting the attention of lawmakers in Brussels as the Continent begins a lengthy debate over tough new proposed restrictions on personal data, which could affect Web businesses like Facebook.

Last month, the author of a proposed European data protection law, which would update a 1995 statute to reflect the realities of the digital age, cited Mr. Schrems’s case as an example of why European lawmakers should adopt tightened controls over Web businesses.

==========

FedEx CEO on Job Growth & Competitiveness

This morning FedEx founder and CEO Frederick Smith was interviewed on CNBC's Squawk Box.  Smith said that changing certain policies, especially the tax code, is needed to make the U.S. an attractive place to do business.  Of course, more business means more jobs.  To watch the interview, click the link below:

http://video.cnbc.com/gallery/?video=3000070059

2 New England Companies Fined for Violating Haz. Waste Mgt. Reqts.

News Release
U.S. Environmental Protection Agency
New England Regional Office
 February 1, 2012 
Contact: David Deegan, (617) 918-1017

Two New England Companies Fined for Violating Hazardous Waste Management Requirements

(Boston, Mass. – Feb. 1, 2012) – Two New England companies that store and distribute hazardous chemicals have agreed in separate settlements to pay a total of more than $179,000 in penalties and to donate about $43,000 worth of equipment and training to local fire departments to settle EPA claims that they violated federal laws regulating companies that handle hazardous chemicals.


Settlement agreements with EPA’s New England office were signed recently by Hubbard-Hall Inc., a chemical storage and distribution company based in Waterbury, Conn., and by Monson Companies, Inc., which is based in Leominster, Mass. and has a warehouse in South Portland, Maine.


The claims and agreements with both companies arose out of a series of inspections that EPA New England has done in the last two years at chemical warehouse and distribution facilities in an effort to address compliance issues. Since 2009, EPA New England has brought 13 Clean Air Act enforcement actions against companies that warehouse or distribute chemicals, including seven administrative compliance orders and six penalty orders.


Two agreements with Hubbard-Hall settled claims that the company failed to comply with the Clean Air Act at its facilities in Waterbury, Conn., and Wilmington, Mass. Under the agreements, the company will pay $111,290 in fines: $48,090 for Wilmington and $63,200 for Waterbury. The company will also buy hazardous atmosphere detection equipment for the Wilmington fire department and provide training in the use of this equipment, at a total cost of $10,887.
Hubbard-Hall failed to have the required risk management plan, or RMP, at both facilities, EPA said. These plans were necessary because the facilities stored large quantities of highly concentrated hydrofluoric acid. An RMP ensures that companies identify the risks associated with their extremely hazardous chemicals; take steps to prevent chemical releases (such as training employees and storing the chemicals safely), and make sure emergency responders can react quickly and safely to an accidental release.


In addition, in July 2011 EPA issued administrative orders to both Hubbard-Hall facilities for violations of the RMP regulations and the General Duty Clause of the Clean Air Act. According to the orders, the company stored incompatible chemicals so close together that a spill or release of one chemical could result in a violent chemical reaction with another chemical, creating toxic gases or causing a fire or explosion.


According to the agreement signed recently with Monson, the company will pay $68,100 in fines. It will also donate emergency response equipment for use by local emergency response teams and will invite those teams to the facility to participate in a training exercise, at a total cost of $32,975.


This will settle claims that Monson failed to meet the requirements of the Clean Air Act, the Maine Hazardous Waste Management Rules, federal hazardous waste laws and the federal Emergency Planning & Community Right-to-Know Act at its warehouse, distribution, repackaging and custom blending chemical manufacturing facility in South Portland.
EPA’s complaint against Monson asserts that the company violated the Clean Air Act’s General Duty Clause by failing to separate incompatible chemicals and to maintain adequate aisle spacing. Storing incompatible chemicals together creates a risk of fire, explosion, or release of toxic gases, while failure to maintain adequate aisle spacing between chemicals can impede access to the chemicals in the event of an emergency. The “General Duty Clause” of the Clean Air Act aims to prevent accidental releases of substances that can cause serious harm to the public and the environment from short-term exposures and to reduce the severity of accidental releases that do occur. 


According to the agreement, Monson also failed to submit a complete emergency and hazardous chemical inventory (Tier II) form for 2009 to local and state emergency planning officials and to the local fire department, in violation of the federal right-to-know law.  Failure of a facility to file these forms leaves the community unaware of the presence of chemicals in the neighborhood that may affect public health and the environment. Also, these forms help federal, state and local authorities plan for emergency response actions and the cleanup of industrial pollution.


In addition, Monson failed to make hazardous waste determinations to characterize containers of waste observed at the facility, and to update its hazardous waste contingency plan to reflect changes at the facility, as required by Maine Hazardous Waste Management Rules.
Both Hubbard-Hall and Monson cooperated with EPA in promptly correcting the violations and in reaching quick settlements.


EPA reminds operators of facilities that store hazardous chemicals that:


• Without sufficient inventory management, facilities may not realize chemical inventories have exceeded federal regulatory thresholds;
• Incompatible materials must be adequately separated;
• Buildings must be structurally appropriate for flammable chemical storage and equipped with the proper fire protections;
• The list of chemicals covered by OSHA Process Safety Management regulations is not always the same as the list of chemicals covered by Clean Air Act Risk Management Program regulations;
• Companies violating the Clean Air Act often are also violating EPCRA and/or hazardous waste regulations;
• Secondary containment systems for chemicals (to contain spills or leaks) must be in good repair, with drums stored in a stable way, and adequate aisle space for emergency responders;

• The Clean Air Act's General Duty Clause can apply even when Risk Management Program regulations do not. The General Duty Clause requires companies that manage extremely hazardous substances to prevent chemical accidents by, among other things, designing and maintaining a safe facility;

• Regular inspections are important to ensure the integrity of tank areas;
• Companies must coordinate with local emergency responders.


More information: 

- Clean Air Act General Duty Clause (http://www.epa.gov/compliance/civil/caa/gdcenf.html)
- EPCRA (http://www.epa.gov/lawsregs/laws/epcra.html)
- Tier II Reporting (http://www.epa.gov/osweroe1/content/epcra/tier2.htm)

# # #

Companies Face Fines for Lead Paint Disclosure Violations

News Release from EPA Region 1:

Companies Face Fines for Lead Paint Disclosure Violations at Two Navy Bases in New England

Release Date: 01/10/2012

Contact Information: David Deegan, 617-918-1017


(Boston, Mass. – Jan. 10, 2012) – Two companies face significant penalties for violating federal lead paint disclosure laws at the Portsmouth Naval Shipyard in Kittery, Maine and the Naval Submarine Base New London in Groton, Conn. 


A complaint filed by the U.S. Environmental Protection Agency asserts that Northeast Housing, LLC, and Balfour Beatty Military Housing Management, LLC failed on multiple occasions over several years to notify prospective tenants, including families with young children, about potential lead paint hazards in housing managed by the companies on the two Navy bases in New England.  Notifying prospective tenants and purchasers of housing units helps parents protect young children from exposure to lead-based paint hazards.


The companies face a possible fine of $153,070 for alleged violations of the Lead Based Paint Disclosure Rule.  EPA’s complaint asserts that the two companies failed to comply with the Disclosure Rule when they entered into 13 contracts to lease target housing for military personnel during the years 2007, 2008, 2009 and 2010 at the Portsmouth Naval Shipyard and the U.S. Naval Submarine Base.


The housing at both bases is owned by Northeast, a joint venture limited liability company between the Department of the Navy and a wholly-owned subsidiary of Balfour Beatty Communities, LLC, of which the BBC affiliate is the managing member.  There are approximately 25 target housing units located at Portsmouth Naval Shipyard, where housing was built in the 1800s and early 1900s.  There are approximately 735 target housing units at the Naval Submarine Base in Groton, which was built in the early 1960s.


"Exposure to lead paint is a serious public health concern here in New England because of how much older housing we have.  Further, military families make significant sacrifices to protect our Nation, and the health of those families, as well as all families, should not be jeopardized by not being notified of potential lead hazards in the housing where they reside," said Curt Spalding, regional administrator of EPA's New England office. "Property managers and owners play an important part in helping to prevent lead poisoning by following lead paint disclosure requirements and making sure families are aware of potential lead hazards in homes."
The EPA complaint details that the companies failed to provide available records and reports regarding lead-based paint and/or lead-based paint hazards to 13 lessees (10 lessees at Portsmouth and three lessees at the Conn. base).  Nine of the lessees were families with children, including seven families with children under the age of six.


Infants and young children are especially vulnerable to lead paint exposure, which can cause intelligence quotient deficiencies; reading and learning disabilities; impaired hearing; reduced attention span, hyperactivity and behavior problems. Adults with high lead levels can suffer difficulties during pregnancy, high blood pressure, nerve disorders, memory problems and muscle and joint pain.


The purpose of the Lead Disclosure Rule is to provide residential renters and purchasers of pre-1978 housing with enough information about lead-based paint in general and known lead-based paint hazards in specific housing, so that they can make informed decisions about whether to lease or purchase the housing.

Federal law requires sellers and landlords selling or renting housing built before 1978 to:

- Provide a lead hazard information pamphlet to inform renters and buyers about the dangers associated with lead paint;
- Include lead notification language in sales and rental forms;
- Disclose any known lead-based paint and lead-based paint hazards in the living unit and property and provide copies of all available reports to buyers or renters;
- Allow a lead inspection or risk assessment by home buyers; and
- Maintain records certifying compliance with federal laws for a period of three years.