“The beauty of the Indian Constitution is that the entire structure of the country is based thereupon. These eloquent words aptly summarise the letter and spirit of the Constitution of India. India has a sophisticated legal system, with a written Constitution. Each State has its own hierarchy of civil and criminal Courts. Each State has a High Court. ] thereby reflecting the incorporation of the doctrine of precedent, (as understood in English jurisprudence). ]. Special Leave Petitions are filed under Article 136 of the Constitution of India. Since the establishment of the Supreme Court of India in 1950, it has pronounced noteworthy decisions, which have left their imprimatur in constitutional and international jurisprudence. It has delivered judgements on many legal subjects: i.e. constitutional law, fundamental rights, human rights, environmental law, private and public international law, to name a few, and of course, the famous concept of public interest litigation (PIL). It is renowned for its “judicial activism”, an expression that has often been the subject of continuing debate.
The expression ‘PIL’ has been considered in a few judgements of the Supreme Court of India. The rights of an arrested person were considered in D.K. ]. The SCI has given various directions concerning the rights available to arrested persons, which directions have to be followed by various State authorities. ], the SCI has laid down guidelines for the prevention of sexual harassment of women in the workplace. The High Court of any State in India is at the head of a State’s judicial administration. “Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution”. ] Chief Justice of India, Mr Justice V. N. Khare in Union of India vs.
Justice Brett Kavanaugh, who was sworn in on Monday, did not partake in the decision, and Justices Ruth Bader Ginsburg and Elena Kagan dissented. North Dakota’s 2017 voter law ID was challenged by Native residents who alleged that the law disproportionately blocked Native Americans from voting. In April, a federal district court judge blocked large portions of the law as discriminatory against Native voters. “The State has acknowledged that Native American communities often lack residential street addresses,” Judge Daniel Hovland wrote. But in September, the 8th Circuit Court of Appeals allowed the law to go into effect. The Supreme Court upheld that ruling Tuesday. In her dissent, Ginsburg argued that the Supreme Court’s order was at odds with one of the top court’s most frequently invoked doctrines on election law: not to change the rules right before an election. By allowing a different set of ID rules in the general election from in the primary, Ginsburg warned, the court was risking widespread confusion and disenfranchisement. Ginsburg noted that according to the factual record of the case, about 20 percent of voters likely to try to cast a ballot in the midterms will lack the required identification. Another “approximately18,000 North Dakota residents also lack supplemental documentation sufficient to permit them to vote without a qualifying ID,” she noted.
So many Attorneys, which one should I pick? It’s confusing trying to choose an attorney. You may have never needed an attorney before, so you ask a friend to refer you to someone, or look on the Internet where hundreds or, even thousands of attorneys are listed. But how do you choose one attorney over another and how can you be sure that you will choose the right attorney to handle your particular legal problem? You need a Certified Attorney! Finding the right attorney is to your benefit. That is why the Supreme Court of New Jersey has directed the Board on Attorney Certification to carry out a special certification program in an effort to raise the level of competence of attorneys in this state. This is additional certification above and beyond the average lawyer that includes additional testing, schooling, and continuing legal education in a specialty. This program is designed to help you make an informed decision when seeking and selecting an attorney. The Certified Civil Trial Attorney designation is granted by the New Jersey Supreme Court for attorneys who are able to demonstrate sufficient levels of experience, education, knowledge, and skill in civil trial practice. A certified attorney is more than just an attorney who specializes in a particular area of law. At present, there are five specialty areas of practice that are approved for certification by the Supreme Court of New Jersey: civil trial law, criminal trial law, matrimonial law, workers compensation law, and municipal court law. As of December 2016, approximately 1,650 hold board certification out of roughly 75,000 active lawyers in New Jersey. The certification program helps the public find attorneys who have demonstrated proficiency in specialized fields of law. Certification helps lawyers by giving them a way to make their experience known to the public and to other lawyers.
Opinion by Chief Judge Prost, joined by Judges Newman and Hughes, here. Stryker v. Zimmer was one of two cases (the other was Halo v. Pulse) in which the Supreme Court granted cert to determine the appropriate standard for awarding enhanced damages under section 284 of the U.S. Patent Act. For my blog post on the Supreme Court’s June 13 decision, see here. For my post on the Federal Circuit’s decision on remand in Halo v. Pulse, see here. As in that case, the Federal Circuit reads Halo as supporting the proposition that subjective willfulness alone may result in a damages enhancement. Note also the panel’s statement, however, that just because the defendant is found to have willfully infringed doesn’t necessarily mean the case is “exceptional” for purposes of awarding attorneys’ fees (pp. After taking into consideration the circumstances of a particular case, a court may exercise its discretion and award enhanced damages under 35 U.S.C. § 284. Halo Elecs., Inc., 136 S. Ct. ]owever, such punishment should generally be reserved for egregious cases typified by willful misconduct.” Id.
]he subjective willfulness of a patent infringer, intentional or knowing, may warrant enhanced damages, without regard to whether his infringement was objectively reckless.” Halo Elecs., Inc., 136 S. Ct. 1932. The Supreme Court also rejected the use of a clear and convincing standard in favor of a preponderance of the evidence standard. On appeal, Zimmer did not appeal the jury’s finding of subjective willfulness under the Seagate test. On the record in this case, willful misconduct is sufficiently established by the jury’s finding. The jury made its determination under the clear and convincing evidence standard, which is a higher standard than is now necessary. We therefore affirm the jury’s finding of willful infringement. In doing so, we think the best course is to vacate the award of enhanced damages and remand to the district court for consideration of this issue. As Halo makes clear, the decision to enhance damages is a discretionary one that the district court should make based on the circumstances of the case, “in light of the longstanding considerations . Congress and the courts.” Id. 1934. Thus, it is for the district court to determine whether, in its discretion, enhancement is appropriate here. We therefore vacate the district court’s award of enhanced damages and remand to the district court so that it may exercise its discretion. The district court’s award of attorneys’ fees was based solely on its determination that Zimmer was liable of willful infringement. Though we uphold the district court’s willfulness determination, it does not necessarily follow that the case is exceptional. ]istrict courts may determine whether a case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the circumstances.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct.
Patent is a set of exclusive rights granted by the state to an inventor or his/her assignee for a limited period of time in exchange for the public disclosure of an invention. However, there is no international convention that grants patent to computer programs. But the English law does have some exceptions in certain cases where a computer program can be patented along with the computer. Under the Paris convention, 1883, that covers protection of industrial property, the member countries can specify the ‘protectable’ subject matter’ for patents on their discretion. According to the World Intellectual Property Organization (WIPO) 1978, a computer program must offer new and inventive technical solutions for it to claim patent protection. If a computer software is merely an algorithm it should not be protected under patents. The term of algorithm is not defined in the patent act. If the invention is technical in nature it will entitled to get protection under patents.
The mathematical algorithms which per se are not regarded as patentable subject matter universally, they are merely considered as abstract ideas or mental steps. The World Intellectual Property Organization (WIPO) 1978 provided that for granting patent protection for computer software it must fulfill the criteria of new and inventive technical solutions. These guidelines stated that a computer program, whether claimed as an apparatus or as a process, was unpatentable. Under these guidelines, an invention relating to a programmed computer could be patentable only if the computer were combined with other, non obvious elements to produce a physical result. The P.T.O. viewed computer programs and inventions containing or relating to computer programs as unpatentable mental steps, and not patentable processes or machines. In the 1972 case of Gottschalk v. Benson, the Supreme Court struggled with whether an algorithm to convert binary-coded decimal numbers into true binary numbers was considered patentable. The Court felt that a patent on this concept would pre-empt the entire mathematical algorithm.
Since mathematics could be considered an abstract idea, and abstract ideas are not patentable, the Supreme Court held that the algorithm in question is not patentable. In the 1980s, the Supreme Court forced the P.T.O. The 1981 case of Diamond v. Diehr provided the first instance in which the U.S. Supreme Court ordered the P.T.O. In that case, the invention related to a method for determining how rubber should be heated in order to be best “cured.” The invention utilized a computer to calculate and control the heating times for the rubber. However, the invention (as defined by the claims) included not only the computer program, but also included steps relating to heating rubber, and removing the rubber from the heat. The Supreme Court stated that in this case, the invention was not merely a mathematical algorithm, but was a process for molding rubber, and hence was patentable. In the early 1990s, the Federal Circuit (the highest court for patent matters other than the Supreme Court) tried to clarify when a software related invention is patentable.
The court stated that the invention as a whole should be examined. If the invention is only a mathematical algorithm, such as a computer program designed to convert binary-coded decimal numbers into binary numbers then the invention is unpatentable. In 1998, the Federal Circuit issued its State Street Bank & Trust v. Signature Financial Group decision, which further clarified the patentability of computer software in the United States. In this case, Signature Financial had obtained a patent on a “Hub and Spoke” method of running mutual funds. In this method, several mutual funds (or “spokes”) pool their investment assets into a single investment portfolio (the “hub”). Software then determines the value of each fund based upon a percentage ownership of each of the assets in the hub portfolio. This information is tracked on a daily basis, and is used to track fund share pricing and tax accountability. State Street Bank asked the court to declare this invention to be unpatentable as a mere mathematical algorithm or as a business method. The Federal Circuit rejected the arguments of State Street Bank, and instead upheld the patent by explicitly stating that business methods can form patentable subject matter. The court emphasized that software or other processes that yield a useful, concrete and tangible result should be considered patentable. Patent protection is still a debatable issue in some cases, such as in the case of computer programs. India, like the European Union, does not allow patents for inventions related to software. Patent laws in India are based on British law. Computer programs are not considered a patentable invention under section 1(2) of the U.K. Patents Act of 1977 also. However, section 2(o) of the Copyright Act 1957 does provide protection for computer programs and computer data. This is because this section recognizes computer programs and computer data under creative works category that is entitled to copyright protection. Best legal minds in India have had to work hard to understand what exactly “computer program per se” means. They have cited U.S. U.K. case law, E.U.
South Carolina whistleblowers who are employed by a South Carolina state government agency are protected from adverse employment actions when they timely report violations of state or federal laws or regulations or other wrongdoing. A South Carolina employee under the Act is an employee of any South Carolina public body entity, generally excluding those state executives whose appointment or employment is subject to Senate confirmation. 2,000) or twenty-five percent (25%) of the estimated money saved by the state in the first year of the whistleblowing employee’s report. The South Carolina State Budget and Control Board determines the amount of the monetary reward that is to be paid to the employee who is eligible for the reward as a result of filing a protected report. See S.C. Code § 8-27-20(B). This reward is very meager when compared to the bounty provisions of the federal False Claims Act, 31 U.S.C. §§ 3729-3732 (the “FCA”). The FCA allows a qui tam whistleblower or relator to receive up to 30% of the total amount of the government’s recovery against defendants who have made false and fraudulent claims for payment to the United States.
Some recent federal FCA recoveries by the U.S. 15,000); and (4) reasonable attorney fees as determined by the court. 5,000) for any appeal. At least one court has addressed the Act’s remedies with respect to a whistleblower employee. In Lawson v. South Carolina Department of Corrections, 340 S.C. 346, 532 S.E.2d 259 (2000), the S.C. Supreme Court held that when a whistleblower employee is limited to a recovery under the statutory remedies of the Act when the employee alleges a wrongful discharge only on the grounds of his whistleblowing. In Lawson, the court granted summary judgment against the employee because he could not point to a violation of any policy, ethics rule, or other regulation as a basis for his whistleblower action which amounted to “wrongdoing” under the Act. South Carolina has a separate whistleblower protection statute for employees who report violations of statutes, rules or regulations regarding occupational safety and health. S.C. Code § 41-15-510. The protected activities include filing a complaint, instituting a proceeding, or testifying about OSHA violations. Any employee who has been discharged or otherwise discriminated against by any person in violation of Section 41-15-510 has the right to file a complaint with the South Carolina Commission of Labor alleging such discrimination. South Carolina whistleblowers who are employed by a South Carolina state government agency are protected from adverse employment actions when they timely report violations of state or federal laws or regulations or other wrongdoing.
This past Sunday (April 15, 2018), the New York Times ran an article on its front page (here), right below the fold, that talked about the unsustainability of public employee pensions. Of course, Oregon PERS was the featured subject of this article, principally because we are one of the few states that publicly disclose the benefits received by all PERS retirees. The title of the article referred to the pension received by Dr. Joseph Robertson, newly retired, former President of OHSU, whose benefit is at the top of the the list. The article, by Mary Williams Walsh – a long-time Times investigative reporter – was filled with inaccuracies, half-truths, faulty inferences, and a poor history. The article attracted more than 800 comments, some disputing much of the incorrect information, pointing out errors and omissions, and criticizing the sensationalism of the article. Of course, there was a near equal number of comments reporting on how bad the public employees were in their own states.
The placement and source of the article (NYT) resulted in it being reprinted, verbatim, in at least 20 different newspapers across the state, and being either reprinted or reprinted with editorials in many of Oregon’s own local newspapers. I imagine countless other states found reason to reprint the article. The NYT amplified a poorly written, poorly researched, and frequently inaccurate article at least a thousand fold over what occurs when this same information has been confined to our local “tribal” newspapers. The effect, I fear, is going to be a much earlier, much more aggressive, and far more antagonistic push by anti-PERS zealots to light everyone’s hair on fire over this. 76,000 Monthly Pension: Why States and Cities Are Short on Cash”. It starts with Robertson’s pension benefit and continues its misadventure from there. First, a significant fact. There are more than 134,000 PERS retirees and beneficiaries (beneficiaries are not listed in the public list cited in the Oregonian). 100,000 per year. While the second is mentioned; the first is not.
Let’s do the math. 100,000 comprise roughly 1.5% of ALL PERS retirees. 100,000, a huge majority are Tier 1 (hired prior to 1996), under rules that have been changed more than twenty times since (although not retroactively, which has been prohibited by the Courts and the IRS). 2 billion corporate tax break for keeping its HQ in Oregon). Again, the endorsement payments were paid to the UO Athletic Department and were (presumably) run through UO payroll, and with the appropriate pension payments made to PERS on all income. None of this should have come as a surprise to the institutions; nothing was done in secret. None of this should have surprised the Legislature or PERS, both of which were aware of the details as they were formulated, and as the pension benefits were accruing. If there was anything untoward, there was plenty of time to object during the negotiations and the signing of the employment contracts.
“Oregon’s costs are inflated by the way in which it calculates pension benefits for public employees. “The bill is borne by taxpayers”. Of all the claims, this one pisses me off the most. Of course taxpayers are on the hook for public agency budgets; that’s why they are called “Public Agencies”. If employers had fulfilled their obligations in real time, the current problem would be negligible. But that didn’t happen. Following the income tax remedy negotiations, the employers were expected to cover the cost of this in their current contributions. ] and the Money Match problems hit the employers simultaneously, with concomitant and hardly unexpected rate hikes to cover the additional expenses. The article cites Josephine County as one of the PERS “basket cases”, but fails to mention that Josephine County prides itself on having the lowest property tax rates in the state. Josephine County refuses to raise its property taxes to support public services, and it is little wonder that they can’t fix roads, jails are at half capacity because of lack of guards, and 911 calls are not promptly acted upon. One school superintendent complains that PERS is the root of all their problems.
5 per thousand of assessed value on real property (this is 180 degrees different from pre-Measure 5 rules, where 90% of local school funding came from property taxes and 10% came from the State). Measure 5 also provided no funding mechanism for this massive change in school financing, leaving it to the Legislature to reallocate existing funds to cover the school budgets. Higher Education and Human Resources were massively underfunded to come up with the revenue to cover K-12 funding. Worse, the local school boards set the proposed school budgets and negotiated with their public school teachers and support personnel; the district in turn negotiates with the Legislature for their 90% based on the locally established budget. The state imposes no restrictions on salary and benefit packages for the school districts; they negotiate within the district with the Superintendent and the locally elected School Boards. 5 rate, and have also received approval from the State to form local improvement districts (“local option”) to tax outside the maximum.
Josephine County also has a total effective property tax rate of 0.62% of assessed value (less than half the maximum allowable), while larger counties tax at or above the statutory maximum 1.5% (depending on levies and local options). “For decades, PERS calculated pensions two different ways, and retirees could choose whichever produced the bigger numbers.” FALSE, FALSE, PANTS ON FIRE FALSE. No member chooses anything about his/her pension except the optional payout method (with a beneficiary, without a beneficiary, lump sum, partial lump sum, annuity certain). The Oregon statutes clearly require PERS to calculate benefits all applicable ways, and PERS CHOOSES the method yielding the highest Option 1 benefit. PERS calculates Final Average Salary based on parameters set by the Legislature, and the elements of those parameters that each agency chooses to participate in. The sick leave calculation is irrelevant to Money Match retirees. The article misrepresents Tier 1 and Tier 2 employee accounts.
These are not “tracking” accounts. They are real accounts whose member contributions were frozen at the end of 2003. “For workers with the tracking accounts, PERS dialed back the annual returns to 8%, then to 7.5% in 2016”. WRONG DEAD WRONG. First, only Tier 1 was guaranteed any specific earnings – the assumed rate of, then, 8%. Tier 2 had no such guarantee and has always been credited only with market earnings regardless of the amount. The maximum annual return ever guaranteed for Tier 1 members was 8%. Therefore, it wasn’t dialed back TO 8%; it never rose above. Moreover, the assumed rate (the 8% referenced) had/has a direct bearing on employer contributions. The higher the assumed rate, the less the employers have to contribute. So, both the employers and members had a shared common interest in keeping the assumed rate high. 2003 reforms set the assumed rate as the maximum earnings crediting for Tier 1 at 8%, not that it was “dialed back”.