Amazon | Fraser Blog

Five Stories That Matter in Michigan This Week – January 5, 2024

Reminder: Michigan LLCs Must File Annual Report by February 15

With the new year upon us, we want to remind you that limited liability companies formed with the Michigan Department of Licensing and Regulatory Affairs must file their annual report (called an Annual Statement) by February 15.

Why it Matters: LLCs that fail to file are subject to fines. More importantly, failure to file an annual report after two consecutive years results in an LLC falling out of good standing with the state of Michigan, which may lead to the dissolution of the entity. Contact a Fraser Trebilcock lawyer if you require help with corporate filing and reporting requirements.

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Michigan Minimum Wage Increased After New Year

Now that we’re into calendar year 2024, Michigan’s minimum wage has increased per the Improved Workforce Opportunity Wage Act of 2018 which establishes the annual schedule of increases. The minimum hourly wage increased to $10.33 per hour; the 85% rate for minors aged 16 and 17 increased to $8.78 per hour; the tipped employee rate of hourly pay increased to $3.93 per hour; and the training wage of $4.25 per hour for newly hired employees ages 16 to 19 for their first 90 days of employment remains unchanged.

Why it Matters: It’s important to be aware of new laws, and changes to existing laws, that have taken effect as of January 1, 2024. Contact us with any questions.

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Fraser Trebilcock Announces Department Chairs for 2024

Fraser Trebilcock announces new Department Chairs for 2024: Sean P. Gallagher, Administrative Law; Robert D. Burgee and Paul V. McCord, Business & Tax; Robert D. Burgee, Employee Benefits: Welfare/Health; David J. Houston, Labor, Employment, and Civil Rights; Michael P. Donnelly, Litigation; Jared A. Roberts, Real Estate; and Marlaine C. Teahan and Mark E. Kellogg, Trusts and Estates.

Why it Matters: A new year brings a renewed commitment to leadership within our firm. When it matters in Michigan, we are the trusted advisor for businesses and individuals requiring planning and consulting services, or facing legal and regulatory challenges, and our capabilities extend to wherever clients require counsel. Read more.

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Reminder: Prevailing Wage Act Being Reinstated in Michigan in 2024

It’s important for businesses to be aware of laws that will take effect in 2024. One is the reinstatement of Michigan’s Prevailing Wage Act (the “Act”), which will require contractors and subcontractors in Michigan to pay the prevailing wage and benefit rates to employees working on most state funded construction projects.

Why it Matters: A prevailing wage law was in effect in Michigan from 1965 until 2018 when the law was repealed. On March 24, 2023, Governor Whitmer signed the Act into law. It will take effect in March of 2024.

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How do you Defend an Amazon Neutral Patent Evaluation?

Amazon’s Neutral Patent Infringement Program (NPE) is Amazon’s version of a quasi-judicial court to resolve patent infringement disputes between sellers. It is akin to an arbitration or mediation overseen by an experienced and vetted patent practitioner. NPE is not a court of law, so any of the rulings are not prejudicial on any platform or marketplace other than Amazon.com. However, it aims to provide a more cost-effective method to resolve patent disputes between sellers.

Why it Matters: The program is initiated once a patent holder submits a complaint to Amazon through Amazon’s seller portal. The accused product is immediately removed from its Amazon listing and the accused infringer is notified. The accused infringer then may negotiate a settlement directly with the rights holder or agree to participate in the NPE program. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Business & Tax | Robert Burgee
Labor, Employment & Civil Rights | David Houston
Intellectual Property | Andrew Martin

Five Stories That Matter in Michigan This Week – December 22, 2023

Reminder: Prevailing Wage Act Being Reinstated in Michigan in 2024

As we prepare for the calendar to turn to 2024, it’s important for businesses to be aware of laws that will take effect in the new year. One is the reinstatement of Michigan’s Prevailing Wage Act (the “Act”), which will require contractors and subcontractors in Michigan to pay the prevailing wage and benefit rates to employees working on most state funded construction projects.

Why it Matters: A prevailing wage law was in effect in Michigan from 1965 until 2018 when the law was repealed. On March 24, 2023, Governor Whitmer signed the Act into law. It will take effect in March of 2024.

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How do you Defend an Amazon Neutral Patent Evaluation?

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Fraser Trebilcock Announces 2024 Board of Directors

The Shareholders of Fraser Trebilcock, one of Michigan’s long-established full-service law firms, have elected Thaddeus E. Morgan as President of the firm. Shareholders H. Kirby Albright and Ryan K. Kauffman were re-elected to the Board of Directors. Mr. Albright will serve as Vice President & Treasurer, and Mr. Kauffman will serve as Secretary.

Why it Matters: When it matters in Michigan, we are the trusted advisor for businesses and individuals requiring planning and consulting services, or facing legal and regulatory challenges, and our capabilities extend to wherever clients require counsel. The annual election of the Board of Directors allows Fraser Trebilcock to continue its tradition of exceptional client service, dedicated community involvement and professional excellence. Read more.

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Michigan Cannabis Exceeds $260 Million in November

Cannabis sales surpassed $260 million in November, via the monthly report from the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $256,677,143.52, while medical sales came in at $3,808,138.68, totaling $260,485,282.20.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with.

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Cass County Circuit Court Rules that Growing Cannabis is an “Agricultural Operation” Under Michigan’s General Property Tax Act

HRP Cassopolis, LLC (“HRP”) owns real property located in LaGrange Township, located in Cass County, Michigan. The property, which consists of two parcels, is leased to a cannabis grower and retailer. LaGrange Township’s assessor classified both parcels as “Commercial” under the Michigan General Property Tax Act (“GPTA”). In response to the classification, HRP submitted a petition to the board of review, which denied the petition. HRP then appealed to the State Tax Commission, which also upheld the decision to classify the parcels as commercial. HRP then filed a Claim of Appeal with the Cass County Circuit Court.

Why it Matters: On appeal, the appellee argued that the assessor properly classified the property as commercial because HRP did not establish that growing cannabis is an “agricultural operation” under the GPTA. The GPTA defines an agricultural operation as “growing and harvesting any agricultural, horticultural, or floricultural commodity.” The Circuit Court rejected the appellee’s arguments and ruled in favor of HRP. The court explained that caselaw requires it to give the words in a statute their plain and ordinary meaning, and in this case, according to the court, “cannabis cultivation falls squarely within [GPTA’s] definition of an agricultural operation.”

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Intellectual Property | Andrew Martin
Cannabis Law | Sean Gallagher

How do you defend an Amazon Neutral Patent Evaluation?

What is Amazon’s Patent Infringement Program and how does it work?

The program is initiated once a patent holder submits a complaint to Amazon through Amazon’s seller portal. The accused product is immediately removed from its Amazon listing and the accused infringer is notified. The accused infringer then may negotiate a settlement directly with the rights holder or agree to participate in the NPE program.

A neutral evaluator is assigned to each case to determine whether a particular vendor’s goods violates the patent or patents asserted by the rights holder. Both the rights holder and the accused infringer have the opportunity to argue their cases. Each party may file a brief up to 15 pages along with a $4,000 deposit each. The winner of the process gets their $4,000 deposit refunded.

How to defend against an Amazon Patent Infringement Program claim.

A seller who choses to participate in the NPE program may defend against a claim of patent infringement by:

- arguing noninfringement;
- providing evidence that the patent was previously declared invalid or unenforceable by a court, USPTO or ITC; or
- proving the products were on sale one year or more before patent’s effective filing date.

Importantly, patent invalidity is not an available defense for the accused infringer. This is one of the main differences between the federal court system and the NPE program because arguing invalidity is often a large part of a defensive strategy. Interestingly, Amazon will still consider whether the accused products were on sale one year or more before the patent’s effective filing date, which would be grounds for invalidity in the federal courts.

Most likely, an accused infringer will need to argue non-infringement. Patent infringement is a complex concept, therefore before a decision is made whether to participate in the NPE process, a non-infringement analysis should be conducted by a Registered Patent Attorney to determine the likelihood of a successful defense.

Part of a non-infringement strategy will be to argue the most narrow interpretation of the subject patent’s claims. The claims are the only part of a patent that defines the rights granted by the patent. Therefore, arguing for the most limited interpretation of the claims will yield the most limited scope of patent rights.

A patent must be construed in view of the prior art. The claims cannot be read to cover prior art, nor can they be construed to be broader than what was considered during prosecution. While Amazon’s NPE process does not consider invalidity arguments, you can submit prior art to support arguments limiting the scope of the claims. This is a complex and technical argument that should be drafted by a Registered Patent Attorney familiar with claim construction and patent litigation. If you need assistance or have any questions, please contact Andrew G. Martin or your Fraser Trebilcock attorney.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.