Troubleshooting Java updates on the USPTO's website

      Java updates on Apple Macintosh computers can cause troubles with the U.S. Patent & Trademark Office's (USPTO) EFS and Private Pair systems.

      Over time, I've received the following advice from various representatives at the USPTO's Electronic Business Center:

1.  Update Java from the official Java website.
 
2.  Delete your bookmarks to specific EFS and Private Pair pages, and replace the bookmarks with links to more general pages:

EFS-Web

PAIR

3.  Allow Java to run in "Unsafe" Mode.

In Safari, go to Preferences, go to Security, and click on "Manage Website Settings". On the left side, select Java and on the right side, choose the EFS website and select "Run in unsafe mode".  Repeat for the PAIR website.


- Henry Park

Buying and selling a used boat in New York State

            This post is in memory of Ms. Julia Blankertz, a wonderful attorney and colleague.

            One of our clients recently approached us and asked us to whether we could assist her with the purchase of a used boat.  Although this wasn't a standard transaction for us, Julia leapt at the opportunity to handle this nautical related transaction.  Unfortunately, Julia never had the opportunity to write a blog post about the transaction.  So, here is a post in her memory.

            As a boat is a vehicle with registration and title paperwork, we started by examining New York State's Department of Motor Vehicles' (DMV) website.  That site helped us identify the three documents our client would need for the sale: (1) the boat's New York State Certificate of Title; (2) a bill of sale; and (3) a New York State, Department of Taxation and Finance form DTF-802, Statement of Transaction – Sale or Gift of Motor Vehicle, Trailer, All-Terrain Vehicle (ATV), Vessel (Boat), or Snowmobile. 

           Fortunately, as this sale transaction was a friendly one, there were no issues with obtaining or preparing these documents.

           Here are four key points to remember:

1.             On the Certificate of Title, it is important that both the seller and buyer complete Section 1 on the reverse of the Certificate.

2.            A bill of sale – a blank version of the bill of sale we prepared is available here (I am hosting this document on Mega.co.nz), needs to contain the following information:

- year and make of the vehicle

- hull identification number (HIN)

- date of the sale

- purchase price

- names and signatures of the buyer and the seller

3.             Form DTF-802 needs to be completed accurately, especially sections 5 and 6.  The purpose of this form is to allow the DMV to collect the sales tax on the sale of the boat.

4.             After the sale is completed, the buyer will need to submit to a DMV office: (1) the completed original Certificate of Title, (2) the original of the signed bill of sale, and (3) a completed form DTF-802.  Then the DMV will calculate and collect the sales tax and issue a sales tax receipt.

- Henry Park

updated on 10/17 to identify where draft document is hosted

S Corporation tax election in a Limited Liability Company

            A limited liability company with more than one member is treated by default as a partnership for tax purposes.  However, the LLC could elect to be treated as a corporation or S Corporation for tax purposes.

            A reason that people consider the S Corporation tax election is that it reduces the social security and medicare taxes that the owner-employees of the LLC will pay. 

            While electing S corporation tax status for a newly formed LLC can be simple, by filing IRS Form 2553 within 75 days of formation (the instructions state two months and 15 days), there are potential issues with the election.

            Among the issues is that most operating agreements are prepared for partnership tax treatment.  This is an issue because the terms of such operating agreements run afoul of the S Corporation rules that there is only one class of stock (or membership interests, in the case of an LLC).  This means that the membership interests must have identical distribution and liquidation provisions; although voting rights do not have to be identical.  Another potential issue is that the LLC cannot have more than 100 members, and there are restrictions on who can be a member:  (a) other companies or corporations cannot be members, and (b) no nonresident alien can be a member.

            If you make your S Corporation tax election, but your operating agreement or other documents violate a test for S Corporation eligibility, then your election is void and depending on how you the tax election was made, the LLC most likely will be taxed a C Corporation.

            If you have any questions concerning this topic, please feel free to contact us.

- Henry Park

USPTO and Java v8 update 51

    According to the US Patent Electronic Business Center representative, the US Patent & Trademark Office's PAIR and EFS-Web services are compatible with the latest release of Java version 8 update 51, available at Java.com.

- Henry Park

U.S. Department of Labor issued guidance on misclassification of workers

      Yesterday, the U.S. Department of Labor (DOL) issued a guidance document providing its current interpretation under the Fair Labors Standard Act (FLSA), 29 U.S.C. § 201, as to whether a worker is an employee or an independent contractor.

      The DOL's position, in a nutshell, is that "most workers are employees under the FLSA."  Guidance at p.2.

      To reach this position, the DOL relies upon the FLSA's definition of "employ" which means to "suffer or permit to work".  29 U.S.C. 203(g).  This definition was chosen to provide as broad a scope of coverage as possible.  Guidance at p.3.  With that definition in mind, a court examines a worker's situation using the multi-factorial "economic realities" test to determine "whether the worker is economically dependent on the employer or in business for him or herself."  Guidance at p.2. The goal of the test "is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer [and thus "is suffered or permitted to work"]  (and thus its employee) or is really in business for him or herself (and thus its independent contractor)."  Guidance at p.2.

     The relevant factors for the economic realities test are:
A.  Is the work an integral part of the employer's business?
B.  Does the worker's managerial skill affect the worker's opportunity for profit or loss?
C.  How does the worker's relative investment compare to the employer's investment?
D.  Does the work performed require special skill and iniative?
E.  Is the relationship between the work and employer permanent or indefinite?
F.  What is the nature and degree of the employer's control?

    In reaching this position, the DOL argues that the common law control test, "which analyzes whether a worker is an employee based on the employer's control over the worker and not the broader economic realities of the working relationship," was rejected when the FLSA was enacted.  Guidance at p.3-4.

    Determining whether a worker is an employee or independent contractor is a difficult issue, and one fraught with penalties should the wrong conclusion be reached.

- Henry Park

USPTO and Java

    The USPTO has just updated its webpage discussing EFS-Web System Requirements.  The webpage states that the USPTO supports Java version 8 update 45.

    Hopefully, the USPTO will keep their webpage up to date.

- HP

Fourth of July

Happy Fourth of July!

May you celebrate our Independence Day with friends and family.


Lyrics for the Star-Spangled Banner

Oh say can you see by the dawn's early light,
What so proudly we hailed at the twilight's last gleaming,
Whose broad stripes and bright stars through the perilous fight,
O'er the ramparts we watched, were so gallantly streaming?
And the rockets' red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there;
O say does that star-spangled banner yet wave,
O'er the land of the free and the home of the brave?

On the shore dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines in the stream:
'Tis the star-spangled banner, O! long may it wave
O'er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion,
A home and a country, should leave us no more?
Their blood has washed out their foul footsteps' pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave,
O'er the land of the free and the home of the brave.

O thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation.
Blest with vict'ry and peace, may the Heav'n rescued land
Praise the Power that hath made and preserved us a nation!
Then conquer we must, when our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner in triumph shall wave
O'er the land of the free and the home of the brave!