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Five Stories That Matter in Michigan This Week – May 9, 2025

Michigan Proposes Ban on Noncompete Agreements

Earlier this year, Michigan legislators introduced House Bill 4040, which aims to prohibit employers from implementing or enforcing noncompete clauses in employment contracts. The proposed legislation contains narrow exceptions only for situations involving the sale of business ownership interests or when an employee is responsible for selling the majority of a company’s assets.

Why it Matters: The proposed legislation comes amid significant national attention on noncompete agreements following the FTC’s attempted ban and the subsequent nationwide injunction blocking its enforcement. This has prompted many states to reconsider their noncompete policies. If passed, Michigan would join a select group of states including California, Minnesota, North Dakota, and Oklahoma. We will continue to monitor for new developments regarding this legislation.

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Navigating Through Life’s Toughest Obstacles

When facing charges of any kind, criminal law experience matters most. You need someone on your side with inside knowledge to provide guidance for a solid defense. We have extensive experience representing individuals and businesses in all stages of criminal proceedings.

Why it Matters: Helping clients for more than two decades, Rob is an experienced criminal defense and professional licensing attorney who has successfully represented clients in both state and federal courts in felony and misdemeanor cases in more than 50 counties across the state of Michigan. He is passionate about what he does, and, understanding the direct and collateral consequences that a criminal conviction or professional licensing sanction can bring, he compassionately works with his clients to focus on what matters most to them. Learn more.

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Michigan’s First Quarter Cannabis Sales in 2025 Hits $766 Million

In Michigan, total first quarter sales in 2025 for adult-use and medical cannabis totaled $766,198,323.48.

Why it Matters: Though there are reports of declining sales of cannabis starting in 2025, the prices of cannabis and cannabis-related products continue to decrease and make consumers happy. Growers on the other hand are seeing profits decrease.

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NLRB Establishes Standard for Workplace Rules

The National Labor Relations Board (NLRB) has issued a ruling in Stericycle Inc., adopting a new legal standard for evaluating the lawfulness of employer work rules. Under the previous standard, an employer was not required to narrowly tailor its rules to promote its legitimate and substantial business interests without unnecessarily burdening employee rights.

Why it Matters: Workplaces may need to review existing policies to their employee handbooks to ensure compliance, and tailor their workplace rules to service legitimate business interests.

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Ensuring Your Business is Secure Through Patent Protection

Whether it is a symbol that you use for branding or a formula that makes your product unique, your intellectual property assets need to be protected. Some of the most recognizable forms of intellectual property fall under copyrights, patents, and trademarks.

Why it Matters: A patent is a legal monopoly for protecting a utilitarian device, system, machine, composition or process. When should you file? Timing is of the essence to prevent a competitor from winning the race to the Patent Office. Our patent law attorneys can help you think through the issues and take the actions necessary to ensure your work and business are protected. Learn more.

Related Practice Groups and Professionals

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

Five Stories That Matter in Michigan This Week – May 2, 2025

CRA Files Formal Complaint Against Adult-Use Marijuana Processor

This week, the Michigan Cannabis Regulatory Agency filed a formal complaint against Pure Roots LLC, alleging the adult-use marijuana processor purchased marijuana from a non-licensed marijuana establishment, and that they failed to properly transport the marijuana in a secure transporter.

Why it Matters: The CRA is intending on imposing fines and/or other sanctions against Pure Roots LLC license, which may include the suspension, revocation, restriction, and/or refusal to renew their license.

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Ensuring Your Business is Secure Through Patent Protection

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Senate Labor Committee Hears Testimony Over Independent Contractor Proposal

The Senate Labor Committee heard testimony this week regarding proposed legislation over independent contractors.

Why it Matters: A few changes SB 6–7 would make include implementing an ABC test, and requiring three years of wage information for similar roles. Additionally, fines and penalties for misclassification would increase, and in some cases, may lead to prison sentences for business owners.

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Gain Peace of Mind Through Life’s Toughest Obstacles

Why it Matters: Helping clients for more than two decades, Rob is an experienced criminal defense and professional licensing attorney who has successfully represented clients in both state and federal courts in felony and misdemeanor cases in more than 50 counties across the state of Michigan. He is passionate about what he does, and, understanding the direct and collateral consequences that a criminal conviction or professional licensing sanction can bring, he compassionately works with his clients to focus on what matters most to them. Learn more.

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CRA to Hold Public Hearing and Receive Comments on New Package of Rules

The Michigan Cannabis Regulatory Agency has scheduled a public hearing for the purpose of receiving public comment on a proposed omnibus rule-making package on Tuesday, May 6, beginning at 9:00 a.m.

Why it Matters: The proposed rules are meant to address a number of important policy issues, including accounts receivable and hemp-derived products. Once the public hearing has concluded and the public comment period has ended, the CRA’s final rules will be sent to the Legislative Service Bureau for formal certification. The draft rules can be found here.

Related Practice Groups and Professionals

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

Five Stories That Matter in Michigan This Week – March 22, 2024

The Uniform Power of Attorney Act

The Uniform Power of Attorney Act (UPOAA or Act), 2023 PA 187, was signed into law in November 2023 and goes into effect July 1, 2024. It repeals Michigan’s current statutory law on durable powers of attorney, specifically Sections 700.5501-700.5505 of the Estates and Protected Individuals Code (EPIC). The UPOAA is not part of EPIC, instead, it is a stand-alone statute located at MCL 556.201 et. seq.

Why it Matters: The UPOAA will apply to all powers of attorney in Michigan beginning July 1, 2024, with certain exceptions. Read more from attorney Melisa M.W. Mysliwiec.

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Can an Out-of-State Patent Attorney Represent Me?

Securing a patent for an innovative idea involves maneuvering through a complex, multifaceted process. And having the right guide—patent legal counsel—is an essential part of the process. A common misconception is that a party hoping to secure a patent must turn to a local attorney for help. This belief, while understandable considering that many legal matters require local expertise and licensing, overlooks the dynamics of how things work with patent law.

Why it Matters: The truth is, in the digital age, the geographical location of your patent attorney matters less than their expertise, experience, and ability to navigate the United States Patent and Trademark Office’s (“USPTO”) requirements. Learn more from attorney Andrew Martin.

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Michigan CRA Publishes February Data: Average Price Decreases

Per data released by the Cannabis Regulatory Agency (CRA), the average retail price for adult-use sales of an ounce of cannabis in February was $91.94, a decrease from $93.20 in January. This is an increase from February 2023, where the average price was $86.00.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

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CRA Warns of Scam Targeting Michigan Cannabis Businesses

On March 8, the Michigan Cannabis Regulatory Agency (CRA) sent out an advisory bulletin warning cannabis businesses of an individual posing as an agent of the CRA demanding payment of license fees under the threat of revoking their license(s).

Why it Matters: The CRA noted, “Licensees and applicants are reminded that administrative rules require they notify the CRA and local law enforcement within 24 hours of becoming aware – or within 24 hours of when they should have been aware – of the theft or loss of any product or criminal activity at the marijuana business.”

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Fraser Trebilcock Attorneys Secure Summary Disposition for Firm Client

Fraser Trebilcock attorneys Danielle Lofton and Gary C. Rogers have obtained summary disposition and dismissal of a lawsuit in favor of the firm’s client in a personal injury case pending before the Kalamazoo County Circuit Court.

Why it Matters: Attorney Lofton successfully argued the motion, convincing the trial court that the plaintiff’s injuries did not rise to the level of serious impairment of body function, following mediation in which the plaintiff, who was represented by a prominent plaintiff’s personal injury firm, rejected the settlement recommended by a mediator, and wanted to proceed to trial before a jury. Instead of accepting the mediator’s recommended settlement amount, the plaintiff will now receive nothing. Learn more.

Related Practice Groups and Professionals

Five Stories That Matter in Michigan This Week – March 15, 2024

Michigan Senate Passes Bill to Require Dyslexia Screening in Schools

On March 12, the Michigan Senate overwhelmingly (37-1) passed a bill that would require schools to screen all students for signs of dyslexia. It would also require programs to educate prospective teachers on dyslexia’s characteristics.

Why it Matters: This bill is part of a larger effort to improve reading in Michigan. In spring 2023, one-third of Michigan third grade students scored not-proficient in reading.

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Michael E. Cavanaugh Selected as a Member of Michigan Lawyers Weekly “Hall of Fame Class of 2024”

Fraser Trebilcock attorney Michael E. Cavanaugh has been selected as a member of Michigan Lawyers Weekly “Hall of Fame Class of 2024.” This special award recognizes esteemed members of the legal profession who have been in practice for at least 30 years. “I am extremely honored to be recognized by Michigan Lawyers Weekly as a member of their Hall of Fame Class of 2024,” said Mr. Cavanaugh.

Why it Matters: Michigan Lawyers Weekly’s annual “Hall of Fame” award recognizes Michigan’s legal leaders who have been in practice for 30 years, highlighting their successful careers and valuable contributions to the community. These legendary lawyers have made their mark, either in the courtroom or the boardroom, in their law firms or legal departments, with community organizations, and with local, state and national bar associations. Read more.

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Fraser Trebilcock Attorneys Secure Summary Disposition for Firm Client

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Can an Out-of-State Patent Attorney Represent Me?

Why it Matters: The truth is, in the digital age, the geographical location of your patent attorney matters less than their expertise, experience, and ability to navigate the United States Patent and Trademark Office’s (“USPTO”) requirements. Learn more from attorney Andrew Martin.

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Corporate Transparency Act ‘Unconstitutional’ says Federal District Judge

A U.S. District Court in Alabama has determined that Congress overstepped its constitutional authority in passing the Corporate Transparency Act (“CTA”) (see National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)). The CTA requires the disclosure of the Beneficial Ownership Information (“BOI”) of millions of American corporations, limited liability companies, and other entities.

Why it Matters: In the wake of this decision, FinCEN seems to have accepted the decision but only insofar as it affects its enforcement of the CTA against the named plaintiffs. The reporting obligations for the remaining 30 million or so entities is unchanged. Time will tell if FinCEN will appeal the decision and/or how it will deal with the seemingly inevitable series of similar cases that will start filling up courts across the country. Read more from attorney Bob Burgee.

Related Practice Groups and Professionals

Can an Out-of-State Patent Attorney Represent Me?

Securing a patent for an innovative idea involves maneuvering through a complex, multifaceted process. And having the right guide—patent legal counsel—is an essential part of the process.

A common misconception is that a party hoping to secure a patent must turn to a local attorney for help. This belief, while understandable considering that many legal matters require local expertise and licensing, overlooks the dynamics of how things work with patent law.

The truth is, in the digital age, the geographical location of your patent attorney matters less than their expertise, experience, and ability to navigate the United States Patent and Trademark Office’s (“USPTO”) requirements.

Understanding Legal Representation at the USPTO

When it comes to securing a patent, the role of registered patent attorneys is pivotal. Unlike the localized nuances of general legal practices, such as commercial litigation or employment law, patent law operates under a unified federal legal framework, overseen by the USPTO. This means that any attorney registered to practice before the USPTO can represent inventors nationwide, regardless of their physical location.

Becoming a registered patent attorney isn’t a simple feat. It requires specific qualifications that are vetted by the USPTO. Candidates must pass the Patent Bar Exam (a notoriously difficult test), and have a background in science or engineering. This helps ensure that registered patent attorneys have not only a deep understanding of patent law, but also the technical grounding necessary to comprehend the complexities of the invention for which a patent is sought.

This combination of legal acumen and technical expertise positions registered patent attorneys as specialized guides through the patent application process. Accordingly, when selecting a patent attorney, their registration status with the USPTO is a necessity, ensuring they possess the expertise necessary to represent your interests.

Dispelling Myths about Local Patent Representation

The belief that effective patent representation requires a local attorney is a myth rooted in traditional views of legal counsel, and the ways clients typically hire attorneys. However, when it comes to patent law, harboring this belief often limits inventors’ access to the best possible expertise. The digital age has transformed how we communicate and collaborate, making physical proximity to a service provider, such as a patent attorney, less critical than ever. In the specialized field of patent law, where the expertise of a registered patent attorney is paramount, regardless of their geographic location, this shift is particularly relevant.

One of the biggest advantages of looking beyond local options is the potential for cost savings—often referred to as “geographic arbitrage.” The fees charged by patent attorneys can vary significantly depending on their location, often reflecting the cost of living in their area. Attorneys working at big firms in metropolitan areas with higher living costs typically charge more—much more—than those in regions where the cost of living is lower. For someone like myself, who practices patent law in Lansing, Michigan, it can be shocking to see what some patent lawyers practicing in larger markets charge. Living in a lower cost of living area, allows me to charge much more reasonable rates in comparison to large markets like Chicago or D.C.

This discrepancy provides an opportunity for inventors and businesses to engage highly qualified legal representation at a more budget-friendly rate without compromising on the quality of service or expertise. By expanding the search for a patent attorney nationwide, clients can leverage these geographical cost differences to their advantage.

Moreover, the specialized nature of patent law means that finding the best match for your specific technological or industrial sector is crucial. Limiting your search to local attorneys could mean missing out on working with a professional who not only understands the intricacies of your invention but also has a proven track record of success with similar patents. The goal is to secure the most competent and effective representation for your patent application, ensuring it stands the best chance of approval by the USPTO.

Criteria for Selecting the Right Patent Attorney

Selecting a competent and qualified patent attorney is a critical step toward securing your intellectual property rights. The process can be difficult, but by focusing on a few key criteria, you can ensure that you’re making an informed decision.

- USPTO Registration: Confirm the attorney is registered to practice before the USPTO.
- Technical Expertise: Look for experience in your specific field of invention. An attorney with a relevant technical background may understand the technology of your invention quicker.
- Responsiveness: The attorney should be accessible for questions and updates, and proactively keep you apprised as to the status of your matter.
- Collaborative Approach: Seek an attorney who shows genuine interest in understanding your invention and business goals. A collaborative attorney-client relationship fosters a stronger patent strategy.
- Value and Cost Savings: Consider the attorney’s fee structure and the potential for cost savings by selecting someone based in a smaller market.

Conclusion

A patent is not just a legal document—it’s an invaluable asset that can significantly impact the success and competitive edge of your innovation. Securing this asset with the right legal counsel is paramount. The lingering myth that effective patent counsel must be local limits your options and potentially the quality of your patent protection. In reality, the right attorney, one who brings a blend of expertise, value, and a deep understanding of your technology, may not be just around the corner. By focusing on important factors beyond proximity, you can secure representation that not only safeguards your patent but also supports your broader business objectives.

If you are interested in discussing your patent questions and legal needs, please contact Fraser Trebilcock registered patent attorney Andrew Martin.

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.

Five Stories That Matter in Michigan This Week – February 9, 2024

Reinstatement of Michigan’s Prevailing Wage Act Takes Effect February 13

On March 24, 2023, Governor Whitmer signed into law a bill reinstituting Michigan’s Prevailing Wage Act (the “Act”). The new Act, which takes effect February 13, 2024, will require every contractor and subcontractor in Michigan to pay the prevailing wage and benefit rates to employees working on most state funded construction projects.

Why it Matters: Contractors that fail to pay prevailing wages may have their contract terminated, be required to pay any excess costs incurred by the state for contracting with a new employer, and be fined up to $5,000.

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A Health Professional’s Guide to Navigating the Disciplinary Process: What to Expect if You Are Facing a Professional Licensing Investigation or Administrative Complaint

Health professionals are committed to caring for patients with expertise, compassion, and integrity. However, in the heavily regulated healthcare field, those professionals can sometimes find themselves navigating not just the medical challenges of their patients but licensing issues of their own as well. Licensing issues can arise unexpectedly, and, when they do, they can cause tremendous stress and uncertainty.

Why it Matters: As an attorney with years of experience handling professional licensing matters for health professionals, Robert J. Andretz has witnessed firsthand how professional licensing investigations and Administrative Complaints can disrupt health professionals’ careers and their ability to provide patient care. He will explore how to navigate the disciplinary process in Michigan so that you can know what to expect if you are ever faced with a threat to your license. Learn more.

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Fraser Trebilcock Welcomes Robert J. Andretz to the Firm

We are pleased to announce the hiring of attorney Robert J. Andretz who will work primarily in the firm’s Lansing office.

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Understanding How Trademarks, Copyrights, and Patents Protect Your Business

Copyright is the exclusive legal protection that covers an original work of authorship. Copyrights vest upon creation of the work, which means placing the work onto a tangible medium.

Why it Matters: Similar to trademark law, it can be difficult to enforce your copyright if the work is not registered with the U.S. Copyright Office. Learn more on this series about trademarks, copyrights, and patents from Fraser Trebilcock attorney Andrew Martin.

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Client Alert/Reminder: Form W-2 Reporting Due for Employer-Provided Health Care / Disclosure Due to CMS for Medicare Part D

Unless subject to an exemption, employers must report the aggregate cost of employer-sponsored health coverage provided in 2023 on their employees’ Form W-2 (Code DD in Box 12) issued in January 2024. Please see IRS Notice 2012-09. Additionally, group health plans offering prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was creditable.

Why it Matters: The filing deadline is 60 days following the first day of the plan year. If you operate a calendar year plan, the deadline is the end of February. If you operate a non-calendar year plan, please be sure to keep track of your deadline. Contact your Fraser Trebilcock attorney for any questions.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Professional Licensing | Robert Andretz
Intellectual Property | Andrew Martin
Employee Benefits | Bob Burgee
Employee Benefits

Five Stories That Matter in Michigan This Week – February 2, 2024

A Health Professional’s Guide to Navigating the Disciplinary Process: What to Expect if You Are Facing a Professional Licensing Investigation or Administrative Complaint

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Understanding How Trademarks, Copyrights, and Patents Protect Your Business

Trademark registration separates your business from your competition and makes you unique. It is one method of protecting your intangibles while publicly providing notice to other businesses or individuals to avoid copying or infringing on your intellectual property rights.

Why it Matters: But when do you need this? When do you get them? And what are they for? Learn more on this series about trademarks, copyrights, and patents from Fraser Trebilcock attorney Andrew Martin.

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Ward Off 2024 Tax Season Flu – File Early and Electronically

Earlier this week, January 29, 2024, marked the start date for the 2024 filing season and the first date that the IRS will begin accepting and processing 2024 returns. The IRS will issue most electronically filed refunds within 21 days, however there are a variety of factors that can delay the issuance of any refund claim outside of the 21-day period, so one should not rely on receiving a refund within 21-days.

Why it Matters: It is important to file early and electronically to avoid any delays in receiving a refund, if applicable. If you have any questions, contact your Fraser Trebilcock attorney.

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The DOL Issues Final Rule Creating New Standard for Classifying Workers as Employees vs. Independent Contractors

On January 9, 2024, the United States Department of Labor released its final rule on worker classification under the Fair Labor Standards Act (FLSA).

Why it Matters: This new rule, effective as of March 11, 2024, signals a return to a standard more likely to classify workers as employees than contractors. Thus, it is more likely that employers will be determined to have misclassified workers as contractors, resulting in liability. Learn more from your Fraser Trebilcock attorney.

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Michigan Legal Cannabis Sales Hit New Record in 2023

Licensed cannabis dispensaries in Michigan registered a record $3.06 billion in sales in 2023. This represents a 25% increase over sales in 2022. Recreational cannabis accounted for $2.74 billion of total sales in 2023.

Why it Matters: According to an analysis by Metro Times, more than $274 million in tax revenue from cannabis sales will go to local governments, schools, and roads.

Related Practice Groups and Professionals

How do you defend an Amazon Neutral Patent Evaluation?

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

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.

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.

Five Stories That Matter in Michigan This Week – December 15, 2023

The Effective Date of the Repeal of Michigan’s Right-to-Work Law Will be Sooner Than Expected

The Michigan legislature repealed the state’s right-to-work law earlier this year. The law provided that employees in Michigan could not be forced by union contracts to join or financially support any labor organization as a condition of employment. The effective date of the repeal was anticipated to be March 30, 2024, however it will now likely be effective on February 13, 2024.

Why it Matters: The effective date of the repeal is tied to the end of the Michigan legislature’s legislative session. Because the legislature ended its legislative session early this year, on November 14, 2023, the effective date will come sooner than anticipated.

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CRA Publishes November 2023 Data: Average Price Decreases

Per data released by the Cannabis Regulatory Agency (CRA), the average retail price for adult-use sales of an ounce of cannabis in October was $97.51, a very minimal decrease from $97.62 in October. For the first time, this is an increase to the average price when compared to the year prior, when in November 2022, the average price was $95.12.

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Qualified Michigan Residents Set to Receive Checks From EITC

It was announced earlier this week that qualified Michigan residents under the state’s expanded Earned Income Tax Credit (EITC) program should start to expect to receive their checks in the mail starting February 13, 2024. It is estimated it will take up to six weeks to distribute payments.

Why it Matters: As we covered earlier this year, the Michigan legislature had passed a bill, which Governor Whitmer signed into law, expanding the state’s Earned Income Tax Credit (EITC). The law retroactively increased the state’s EITC to 30% of the federal credit, where it is estimated to impact over 700,000 low-income workers. Families should receive on average $550.

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Governor Whitmer Signs Bills Permitting State and Tribal Businesses to Engage in Commerce with Each Other

The landscape of the cannabis industry in Michigan continues to evolve as new legislative efforts in Michigan aim to bridge the operational divide between state-licensed cannabis enterprises and tribal cannabis businesses. Two pivotal bills, Senate Bill 179 and Senate Bill 180, were signed by Governor Whitmer on October 19, 2023, creating a collaborative business environment for these formerly siloed entities.

Why it Matters: Prior to the legislation being enacted, state-licensed and tribal cannabis operations in Michigan functioned independently, restrained from mutual commerce and collaboration, including prohibitions on cannabis products being sold between these businesses. The new legislation allows these two distinct parts of the cannabis industry to interact.

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Patentable vs. Infringing: What’s the Difference?

The patent system is intended to spur innovation, incentivize inventors, and protect against infringement. One of the big challenges innovators face in this realm is understanding patentability and what constitutes infringement.

Why it Matters: The distinction between what is patentable and what is infringing is defined by the scope of the patent claims. For instance, a new invention that improves upon a patented product may still be patentable even though the envisioned product itself may infringe on the patented claims. On the other hand, a product that is not patentable may also infringe granted patents. Learn more from your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

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

Patentable vs. Infringing: What’s the Difference?

Criteria for Patentability

Patentability requires consideration of three key criteria: novelty, non-obviousness, and usefulness (or utility). The requirement of utility is a de minimus requirement and is met if any use can be had from the claimed invention. To be patentable, an invention must be novel meaning it cannot be part of the existing body of knowledge known as “prior art.” It must also be non-obvious meaning it cannot be an obvious extension of existing technologies or solutions when viewed by a person of ordinary skill in the art.

The scope of patentable material is wide, encompassing everything from new chemical compounds to software methods, and from mechanical devices to biotechnological processes. However, there are limitations. For instance, abstract ideas, natural phenomena, and artistic creations are in the public domain and are ineligible subject matter.

Patent Infringement

Patent infringement occurs when an individual or entity makes, uses, sells, or imports a patented invention without permission from the patent holder. While this may sound straightforward, it’s not; determining infringement is often a complex matter requiring detailed legal analysis.

There are several forms of infringement to be aware of:

- Direct Infringement: The infringing product or process directly falls under the scope of the patented claims. The doctrine of equivalents is also direct infringement in which a product or process contain elements identical or equivalent to each claim element of the patented invention.
- Indirect Infringement: Where a third party contributes to or induces others to infringe.

Distinguishing Between Patentable and Infringing

The distinction between what is patentable and what is infringing is defined by the scope of the patent claims. For instance, a new invention that improves upon a patented product may still be patentable even though the envisioned product itself may infringe on the patented claims. On the other hand, a product that is not patentable may also infringe granted patents.

Legal Consequences and Remedies

The consequences for infringing on a patent can be severe, ranging from monetary damages to injunctive relief.

- Monetary Damages: Courts can award significant damages to the patent holder, often based on the what the court determines to be a “reasonable royalty” but may also consider profits lost due to the infringement. In cases of willful infringement, these damages can be trebled.
- Injunctive Relief: In some cases, courts may issue an injunction to prevent further infringement. This can halt the production or sale of the infringing product, having a substantial impact on the infringer’s business.
- Legal Costs: The cost of litigation in patent cases can be substantial, adding another layer of consequence for the infringer.

Given the stakes involved in patent infringement, it’s crucial for companies and individuals to take proactive steps to avoid it, including consulting with experienced legal counsel.

Conclusion

Understanding the difference between patentable inventions and infringing actions is critical in our innovation-driven economy. By grasping the distinctions, you can harness the power of intellectual property while avoiding the pitfalls of infringement.

If you or your business is interested in intellectual property services, such as drafting patent applications, conducting freedom to operate opinions, analyzing patentability, or determining infringement risks, 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.