Inside 3Q2013 2 . . . . Five Tips for Preparing Effective Intellectual Property Assignments 3 . . . . ACC News 4 . . . . FOCUS on Pro Bono 4 ... FedEx Ground Impacts the Community with its Pro Bono Efforts 5 ... MSA’s Law Department Partners with “Wills for Heroes” for Pro Bono Works 6 . . . . Contract Negotiations — Terms and Conditions 7 . . . . Upcoming Events 8 . . . . Welcome New Members! 8 . . . . Board Members and Contacts FOCUS President’s Message Kevin Whyte, Carmeuse Lime & Stone

For this edition of Focus, I wanted to say “no”, but rather try to strive to perform at a higher address the noble calling of the legal determine the underlying standard. $is does not profession. So I “Googled” “law profession goal and fashion a solution. mean, however, that we need and quotes” hoping to !nd a good lead in to simply accept interpreta- Just two examples (there are to this article. Try it yourself. Su"ce it to tions or positions taken by many more and probably say – not a pretty site. We lawyers get a bad the regulatory agencies. better ones) are set forth rap, maybe sometimes deserved. However, In some cases, we need to below. whether serving in house or in private challenge such positions. practice, I still believe, a#er all these years, I am sure that many of us At times, the agencies seem that lawyers serve a valuable purpose in have had business people to give too little weight (or our society. Perhaps, there are too many of come to us and say - how even no weight) to economic us, but I would still be proud if one of my can we get out of this contract? I still considerations. While we would all like to kids were to pursue the legal profession. involuntarily %inch whenever I hear this. live in a pollution free world, we also enjoy Contracts mean something. $e concept the modern conveniences of our advanced $e Declaration of Independence and the that contracts are meant to be performed civilization. Sometimes trade-o&s are Constitution were written primarily by and can be enforced is central to our free required and di&ering interests must be lawyers. Gandhi and Mandela were both enterprise system. But I have learned balanced. Lawyers are good at negotiat- lawyers. Turow and Grisham have written over the years to be more patient (at least ing reasonable solutions in these complex some pretty good books. We may not go I try). By digging a bit deeper, we can areas where the law, public policy and down in history as famous lawyers, but sometimes help to !nd a business solu- science intersect. we can help to ensure that our compa- tion. First question – is the other side in nies operate within the system, a system Securities disclosure, settling complex breach. If not, what don’t we like about based upon laws, written and interpreted litigation, compliance and governance, the contract? Is there something that the by lawyers. employment and labor and business trans- other side might not like or would want actions are just a few more areas in which One of the major criticisms of lawyers is to change that we would be willing to lawyers can bring their special skills and that we can argue “both sides of a case”. consider? For example, can we trade a knowledge to help solve business issues, in Personally, I do not see any problem with longer term (to give the customer security an ethical and legal manner. this, as the consideration of most complex of supply) for some better pricing in the issues involves merits on both sides of the short term? Sometimes, it is really just Oh by the way – I am no literary expert – argument. In some cases, there may be a matter of enforcing rights already set but the Shakespeare quote “let’s kill all the more than two sides and multiple possible forth in the current document. You never lawyers” needs to be taken in context. If outcomes. We are trained to see the shades know how the issue might be resolved the goal were to create a communist dicta- of gray and to try to fashion solutions that until you do some digging. torship, then killing all of the lawyers (or solve business problems while complying at least tossing them in jail) would make Sustainability is another area where we with legal and ethical requirements. $is perfect sense. can serve. Environmental compliance is is what it means to “think like a lawyer”. no longer enough. All companies need to When we are at our best, we do not simply Five Tips for Preparing Effective Intellectual Property Assignments By Brienne S. Terril1, Fox Rothschild LLP

Intellectual property assignment agree- Tip 2 - Specify the Scope of the Convey- In light of this, parties to an assignment ments are commonly used to transfer own- ance - An intellectual property assign- should cautiously cra# and carefully ership of intellectual property, registered ment may not only grant ownership review conveyance language in order to or unregistered, from one party to another. rights in the transferred items of intellec- guarantee a contemporaneous transfer of Whether an assignment is executed as part tual property, but also to rights relating to the relevant intellectual property. of an employment or consulting arrange- the transferred intellectual property. For Tip 4 - Record the Assignment - Assign- ment, a sale or acquisition, or another example, an assignment may specify that ments involving the transfer of registered transaction, the following !ve tips will help the assignee is the owner of any patents intellectual property are o#en recorded ensure that the assignment documents the that ultimately issue from a transferred with the appropriate patent, trademark or parties’ intent regarding the nature of the patent application. Similarly, an assign- copyright o"ce in the governing jurisdic- assignment, and provides adequate notice ment may expressly provide that rights in tion. Recording an assignment provides of the transfer to third parties. and to continuations, continuations-in- the public with legal notice of the transfer. part, divisional applications, and foreign Tip 1 - Identify the IP Being Conveyed - In addition, in the United States, an counterpart applications are transferred An assignment should clearly identify the assignment that is not recorded within along with a patent application. Assign- intellectual property being conveyed. $e three months of execution is void against ments of trademarks or copyrights should premise is simple enough, yet due to a vari- any subsequent purchaser for valuable address whether renewal rights are con- ety of factors, parties o#en neglect to suf- consideration who is without notice of veyed as part of the assignment. !ciently identify the intellectual property the assignment. Accordingly, it is in an being conveyed. $is can lead to ambigu- It is important to expressly document the assignee’s best interests to ensure that an ity as to the parties’ intent and can cause scope of the rights being transferred pur- assignment is recorded in the U.S. within headaches for assignees who subsequently suant to an assignment. Failure to do so three months from execution in order transfer the acquired intellectual property. may result in an assignee obtaining fewer to prevent a subsequent purchaser from rights than may be intended or expected. acquiring any rights to the intellectual Clearly identifying transferred intellectual property. property is especially important for reg- Tip 3 - Use the Correct Conveyance istered items of intellectual property such Language - To properly e&ect transfer of Assignments may also be recorded in as patents, patent applications, trademark intellectual property through an assign- countries outside of the U.S. for appli- registrations and copyright registrations. ment, the parties should pay particular cable intellectual property, which may To avoid confusion, an assignment should attention to the conveyance language provide an assignee with certain bene!ts. identify the transferred intellectual that is used. Courts have consistently For example, in some countries, patent property with as much detail as possible. found that assignments that include infringement damages begin to accrue For example, an assignment conveying present tense conveyance language, such from the date that an assignment is actu- a patent should identify the patent by at as “hereby assigns,” e&ect contempora- ally recorded in the relevant patent o"ce. least the serial or patent number. If this neous transfer of the underlying intel- As such, an assignee should consider information is unknown or unavailable, lectual property. However, courts have recording an assignment soon a#er exe- then an item should be identi!ed by as also consistently found that agreements cution in order to maximize the amount much information as is known, such as by that include future tense conveyance of infringement damages that may be title, inventors, !ling date, issue date and language, such as “shall assign”, “agrees available to the assignee in an infringe- applicable country. to assign” and “will assign” are not suf- ment action. However, many countries !cient to e&ect contemporaneous transfer outside of the United States consider Similarly, a trademark assignment should of intellectual property. Instead, these assignment of intellectual property to be include, for example, the serial number, agreements are o#en considered to be a taxable transfer. Such countries o#en registration number, country of registration, mere agreements to assign that require charge a Value Added Tax (VAT) on !ling date, registration date, and classes of execution of a subsequent agreement in the estimated value of the intellectual corresponding goods or services. Including order to perfect transfer of the intellec- property. $erefore, an assignee may wish as much identifying information as possible tual property that was the subject of the to evaluate the value of the intellectual will lessen any ambiguity that might exist original agreement. property and the possible tax implications as to what items of intellectual property are before deciding to record an assignment actually being conveyed. outside of the United States. ______1Brienne S. Terril, Esq., is an intellectual property attorney with the o"ce of Fox Rothschild LLP, and helps represent some of the nation’s largest technology companies. She focuses her practice on patent prosecution and transactional matters across a range of technology areas, including computer security, encryption and mobile device technologies. Contact her at [email protected]. continued on page 3

2 Western Pennsylvania Chapter FOCUS 3Q13 continued from page 2

Tip 5 - Know the Requirements to recorded. For example, many countries tion process and avoid the need to correct Record Prior to Executing an Assign- outside of the U.S. require an assignment an assignment post-execution. ment - Identifying the jurisdictions in be signed by both the assignor and the Carefully cra#ing assignment conveyance which an assignment will be recorded assignee. In addition, certain countries language and understanding the require- and understanding the recordation require that the address of the parties be ments and obligations of recording such requirements of those jurisdictions prior expressly provided in the assignment and assignments will help ensure that the to executing an assignment will help that an original copy of an assignment be transfer process progresses smoothly and simplify the recordation process. Many recorded. Knowledge of these require- that the parties’ intent and expectations are jurisdictions have requirements that must ments will help streamline the recorda- achieved and appropriately documented. be met in order for an assignment to be

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3 FOCUS on Pro Bono FedEx Ground Impacts the Community with its Pro Bono Efforts

are o&ered a will, !nancial power of attorney and health care directive [o#en called a living will]. • $e Education Law Project is moving along on two fronts. $e !rst is a Class Action Settlement Fund which is admin- istered by a cross-disciplined team of nine and is responsible for distribut- ing funds to children with Individual Education Plans [IEPs] who were not provided with an adequate and appro- priate education by the school district where they were domiciled. $e students may pursue auxiliary educational oppor- tunities paid for by the Fund. A second activity allows attorneys to collaborate Pro Bono is a group effort at FedEx Ground! with a local law !rm to work in a clinic setting to provide guidance and legal FedEx Ground is committed to supporting which we all know is di"cult to turn o&, counsel to parents of students with IEPs. the communities in which it does business. we had to partner with an organization In addition to countless charitable contri- that had structure in place and provided • $e Guardian ad Litem project also butions and volunteer activities bene!t- malpractice insurance for us corporate focuses on helping children. At the ing the Pittsburgh area, FedEx Ground’s lawyers as the Partnership does.” request of the court, a pro bono attor- in-house legal team demonstrates this ney is appointed to represent the best Now in its fourth year at FedEx Ground, corporate commitment every day by “giv- interest of a child in a high-con%ict the program o&ers an array of pro bono ing back” to the local community through custody dispute. As part of the two-year projects to engage its employees. $e Bar its acclaimed pro bono program. appointment, the guardian ad litem Association o&ered the necessary training, investigates the facts and presents them FedEx Ground’s success and recent growth and the team went forward providing legal to the court to assist the court in mak- has provided a unique opportunity for a services to the county’s income-quali!ed ing custody determinations. $e !rst highly-talented group of civic minded legal citizens who have earnings not in excess of case is now underway. professionals to launch an expansive pro 2.5 times the poverty level. FedEx Ground bono e&ort that meaningfully improves the legal professionals choose to participate in While the team’s accomplishments to lives of people facing legal challenges in the following formalized pro bono projects: date in this area are extraordinary, FedEx Western Pennsylvania. Ground is never satis!ed with status quo, • $e Protection from Abuse Project was and the team continues to truck forward $e Pittsburgh Pro Bono Partnership was the !rst up in 2010 and enabled FedEx with other pro bono ideas intended to a logical !t for FedEx Ground. Since 2010, Ground employees to help domestic enhance FedEx Ground’s impact on the the legal team has been actively partici- violence victims obtain long-term pro- pating with this a"liate organization of tection orders. continued on page 7 Allegheny County Bar Foundation that • $e Wills Project was founded by local law !rms and corpo- began in January rate legal departments. 2011 in partnership “It was truly refreshing to see how many with the Bridgeville people had an interest in doing some Public Library, and community volunteer or pro bono work,” now also operates says Jennifer Fox Rabold, a senior counsel in the Cra#on and in the business transactions area of the McKees Rocks Public department. “But thinking like lawyers, Libraries. Clients

FedEx Ground was presented with the 2011 Organization Pro Bono Award by the Allegheny County Bar Association. Pictured from left: Jennifer Fox Rabold and Joanne La Rose.

4 Western Pennsylvania Chapter FOCUS 3Q13 MSA’s Law Department Partners with “Wills for Heroes” for Pro Bono Works

In 2013, MSA’s law department set out “For many !rst responders, thinking about als witnessed. MSA estimated that its to !nd a signature pro bono project that a will is an uncomfortable reminder of volunteers donated approximately $30,000 would touch the company’s mission of the inherent danger of their profession,” in legal and notary services and 125 vol- promoting safety for workers around the said Doug McClaine, MSA Vice President, unteer hours. world. MSA is the global leader in safety Secretary and General Counsel. Mr. “Our legal team [was] thrilled to volunteer products, including those that protect McClaine explained that for those who are its services to directly help Pittsburgh’s !rst !re!ghters and other !rst responders. seriously injured or die in the line of duty responders,” Mr. McClaine said. “While Given this commitment to protecting !rst without a will, the loved ones le# behind all of our associates at MSA know that responders, “Wills for Heroes” was a per- must deal with tedious paperwork, di"cult their jobs impact our mission - that men fect !t for the MSA law department’s pro decisions and !nancial struggles. Having and women may work in safety - many do bono work. “Wills for Heroes” is a national a will and living will in place allows !rst not o#en get the opportunity to interact program that allows volunteer lawyers to responders to decide how their assets and with customers directly. To say the least, provide wills, living wills and other estate care will be handled if the unthinkable we [were] proud to do our part to support documents to !rst responders and their happens. such an important cause,” he said. spouses or signi!cant others free of charge. MSA’s law department was the lead spon- MSA’s law department received positive Once the program was selected, there sor of the June 1st event, in conjunction feedback, not only from the !re!ghters were funding obstacles to overcome. As with the Pennsylvania Bar Association served, but also from its own business with many small law departments, MSA and the Young Lawyers Division of the clients within MSA. Many business cli- maintains a tight budget and needed to Allegheny County Bar Association. At ents were pleased to see the law depart- conduct an event at very little cost. $e MSA, the program was led by Stephanie ment, a non-customer facing group, biggest challenge was obtaining reasonably Sciullo and Rebecca Gales. 100% of MSA !nd a creative way to interact MSA’s priced malpractice coverage; the premiums law department members participated in customers while furthering a good cause. quoted initially would have made the event the event – including attorneys, parale- MSA plans to repeat this event annually. cost-prohibitive. Ultimately, MSA was able gals, and administrative assistants – as MSA credits ACC resources for inspir- to negotiate a limited endorsement to its did many of MSA’s outside counsel from ing the event, including a program at commercial general liability policy at no four local Pittsburgh law !rms. Pre-event the 2012 ACC annual meeting on “Pro cost. An MSA associate also arranged for training and proprietary Wills for Heroes Bono Partnerships Mean Greater Value Panera Bread to donate refreshments for so#ware allowed attorneys who had no From Your Outside Counsel.” MSA the !re!ghters and their families. previous estate planning experience to also researched programs and insurance participate. A wills and estates practi- $e event was held on Saturday, June 1, issues through “Corporate Pro Bono” at tioner was on hand during the event to 2013, with the Pittsburgh !re!ghters of http://www.cpbo.org/. provide guidance on more complex issues. Local No. 1. MSA volunteers conducted $e department’s two notaries provided 45- to 90-minute sessions with individual notary services; !re!ghters and spouses, a#er which the paralegals and !re!ghters le# with complete, notarized other profession- documents. Wills for Heroes!

From L-R: MSA Law Department members Rebecca Gales, Lisa Fedorchak, William Berner, Stephanie Sciullo

5 Contract Negotiations — Terms and Conditions The Wisdom of the Crowd, ACC, September 2013

ACC’s Wisdom of the Crowd is compiled buyer’s internal purposes only, and the from any defects? $e best legal advice from questions and responses posted on terms and conditions contained therein is to precisely de!ne what is meant by various ACC Committee eGroups*, which shall have no force or e&ect. Seller defective and what is warranted (e.g., serves to leverage the knowledge of ACC objects to any di&erent or additional meeting certain speci!cations). Do not members in a valuable resource. $is terms or conditions contained in any just rely on your quotation standard series addresses issues involving negotiat- request for quotation, purchase order terms governing instead of the custom- ing terms and conditions. Keep reading to or other writing or document of the er’s PO. It is too risky. learn more of what your colleagues think. buyer, and no such di!erent or addi- Russell Fink, vice president and general counsel, tional terms shall be e!ective or binding Titan America (10/10/2012) When it comes to contract negotiations, upon seller unless agreed to in writing the devil is in the details. My typi- • If I !nd myself stuck with an obsti- and signed by an o"cer of seller.” cal review of contracts results in three Charles Barry, director of contracts & compliance, nate party (and internal client), I try categories: deal killers, clauses I want Proto Labs, Inc. (10/5/2012) to salvage what I can — I’d accept the (or don’t) and clauses I use as negotiat- o&ending language a#er advising the ing terms. In the end, we need to put our • I !nd it curious that, instead of client of the risk, but then seek to carve business hats on and do what is best for addressing the issues head-on, the con- out those provisions that matter most — our clients. Confused? Do not despair. sensus response seems to be to simply an indemni!cation, choice of law, etc., Keep reading to learn more of what our pile your standard language on top of so they come back into play. If the risk colleagues think. the opponent’s standard language, and that is posed, however, is signi!cant or to leave it all for another day. Or to I run up against resistance even to that • Another way to accomplish the same then see if later whether a court will approach, I would escalate it for a senior goal of protecting a supplier from an sort out the battle of the forms to favor business manager’s call once all perti- unacceptable standard warranty of a you or to favor the other guy. Given nent facts are disclosed. Important bit buyer and other terms in a buyer’s PO that it’s a coin toss, basically, on which of advice: Don’t take it personally if you Terms and Conditions is in the follow- form will win in a battle of the forms, run into a brick wall. Give the advice, ing statement: isn’t the better business/legal advice to zealously represent the client, advo- Quotations. A quotation is an o&er to determine whether you need to worry cate internally (while being politically sell, is valid only for the buyer’s 3D about “their” warranty period being astute) — and then move on. CAD model on which it was based, and the one enforced in the !rst place? David Schonbrun, head of legal, Hiscox is subject to these terms and conditions, Again, if you’re warranting against (1/23/2013) all of which are deemed incorporated a hardware failure in the !rst (1)(5) therein. Any change to the 3D CAD (10)(100) years, then your company is The information in this Wisdom of model requires an updated quotation. best to do the fault-cause-root analysis the Crowd should not be construed Quotations are valid for 30 days, a#er up-front on your product to determine as legal advice or legal opinion on which pricing may change without what is most likely to fail/wear-out/ specific facts and should not be notice. Seller reserves the right to cor- fatigue in that !rst (1)(5)(10)(100) considered representative of the rect clerical and other patent errors in year time span, and to then decide views of its authors, its sponsors, any quotation. if replacing the failed/worn/fatigued and/or the ACC. This Wisdom of the O!er and Acceptance. $is document portion is a cost-of-doingbusiness that Crowd is not intended as a definitive from seller, together with a valid quota- you can live with. statement on the subject addressed. Laura Vogel, assistant general counsel, The Auto tion, contains the entire terms and Rather, it is intended to serve as a Club Group (10/9/2012) conditions associated with this transac- tool providing practical advice and tion. $e buyer may accept a quotation • Why bother with all the standard lan- references for the busy in-house by issuing a purchase order or other guage about whose form will control if practitioner and other readers. writing expressing its intention to be you do not know if it will be e&ective? bound, or in any other manner accept- It is better to negotiate and agree [to] Additional Resources: able to seller. Any terms, conditions or the terms and conditions than to rely Wisdom of the Crowd, Contract Negotia- writing within such a purchase order, on your form. $at way, you avoid the tions – Terms & Conditions or writing addressing the subject mat- uncertainties of the battle of the forms. Contracts: Management and Process ter of this transaction, shall be for the For example, what if the customer’s pur- ______chase order terms provide that the seller Contracts: Dra"ing and Negotiation *(Permission was received from the warrants that their product is not defec- ACC members quoted below prior to Workshop publishing their eGroup comments in tive and will indemnify the customer this Wisdom of the Crowd resource.) continued on page 8

6 Western Pennsylvania Chapter FOCUS 3Q13 continued from page 4 local community. For example, while in skills FedEx Ground’s legal team use every “I think that is largely because we o&er a its infancy, the FedEx Ground team is day in advising its corporate clients. variety of projects and make sure that all exploring opportunities to o&er corporate of the 100+ people in the legal department “$is program has been very successful,” legal advice and counsel to qualifying local are encouraged to participate. We have says Joanne LaRose, managing attorney non-pro!t organizations. $e goal would excellent representation from attorneys in the contractor model support group. be to share with those organizations the and non-attorneys in the programs.”

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7 continued from page 6

Are you familiar with the ACC Contract with thousands of real-world clauses at a search tool to accurately !nd speci!c Advisor? $is resource analyzes ACC’s your disposal, and a powerful tool that documents and clauses. Give ACC’s Con- vast collection of sample contracts and allows Members to identify potentially tract Advisor a try at http://contracts.acc. Member-submitted forms and policies missing clauses or language in their own com/acc/forms.aspx. to create model forms, a clause database contracts. In addition, you have access to

Welcome New Members!

Joseph Balestrino Luca Giorgi Diana Leech United States Steel Corporation FedEx Ground Package System, Inc. Health Services Donna Bucella Gail Gratton Donald Lewinski Education Management Corporation Highmark Health Services Crown Castle USA, Inc. Kristen Budris Steven Harris Emily Lewis Industrial Scientific Corporation II-VI Incorporated Talisman Energy USA Inc. Christi Davis Beth Henke Julian Neiser The PNC Financial Services Group, Inc. Education Management Corporation The Rhodes Group Janet Duderstadt Tomi Herold Alec Rzoski Inc. Highmark Health Services WESCO Distribution, Inc. Nina Faber Christopher Hess David Shelton Mine Safety Appliances Company Apex Energy, LLC United States Steel Corporation Steven Franckhauser Kevin Katona HbK Energy Teletracking Technologies, Inc.

Board Members and Contacts

President VP-Membership Board of Directors Kevin Whyte Linda Schneider Daniel Fayock Carmeuse Lime & Stone GlaxoSmithKline PPG Industries, Inc. 412.995.5520 412.200.3292 [email protected] [email protected] Lewis Gardner EQT Resources President Elect VP-Program Richard Heiser Susan Apel Susan Shin Connelly FedEx Ground Ellwood Group, Inc. United States Steel Corporation 724.752.3680 412.433.2926 Colleen Zak Hess [email protected] [email protected] Inc.

Secretary VP-Communications Lucas Paglia Karen Brownlee Marcy Smorey-Giger American Eagle Outfitters Inc Confluence Technologies, Inc. [email protected] 412.697.4259 Vinita Sinha kbrownlee@confluence.com VP-Pro Bono Highmark Inc. Scott Seewald Treasurer Alcoa Inc. Mary Tortorice M. Cristina Sharp 412.553.4974 Dick’s Sporting Goods, Inc. United States Steel Corporation [email protected] Mark Yablonski 412.433.2864 H.J. Company [email protected] Chapter Administrator Barbara Dudek 412.366.2686 [email protected]

8 Western Pennsylvania Chapter FOCUS 3Q13 8