April 2024

At the forefront of protecting workers’ rights and fostering fair competition, the Federal Trade Commission (FTC) recently implemented a groundbreaking Noncompete Rule. This rule, finalized on April 23, 2024, while supposing to safeguard American workers against the effects of noncompete agreements presents substantial new hurdles when it comes to protecting intellectual property. The unintended consequences of the new rule are yet to be fully understood.

Key Provisions of the FTC’s Noncompete Rule
The FTC’s Noncompete Rule prohibits employers from enforcing noncompetes against most workers. Here are the key provisions of the rule:

•  Ban on New Noncompetes: Employers are prohibited from entering into new noncompete agreements with workers as of the effective date of the rule. This restriction ensures that workers are not unfairly bound by restrictive contracts when seeking employment opportunities.
• Limitations on Enforcing Existing Noncompetes: Existing noncompete agreements can only be enforced against senior executives, defined as workers earning more than $151,164 in a “policy-making position.”
• Notification Requirement: Employers must inform workers whose noncompetes are no longer enforceable that their agreements will not be upheld. The FTC provides model language to facilitate this notification process, ensuring transparency and compliance.
• Exception for Business Sales: Noncompete agreements between the seller and buyer of a business are exempt from the rule, allowing for continuity in business transitions.

Impacts on Trade Secrets
While the proposed rule does not explicitly change the law of trade secrets, the practical impact is substantial. Thus, although Federal and State Trade Secret laws still exist and provide some protection, proving and maintaining the trade secret may become unworkable. Noncompetes have typically been a critical component in a company’s trade secret strategy and ensuring that employees cannot unfairly use, and commercially exploit, trade secrets against the company. For example, employees with trade secret knowledge cannot, even should they wish to, avoid using trade secret information when performing the same job for a direct competitor. Such a situation may lead companies to segment and compartmentalize trade secret information among different employees, resulting in inefficiency and ultimately advancement of such employees.

Impacts on Confidential Technical and Business Information
Not only does the new rule potentially devastate trade secret protection, but it also may substantially impact a company’s ability to control its confidential technical and business information. Such information may have substantial value but yet it may not rise to the level of a trade secret. As such, noncompetes in cooperating with confidentiality agreements are sometimes the only tools available to retain some protection against unfair competition by competitors who hire employees only to obtain the information.

The new rule will have far reaching affects on intellectual property, including trade secrets. With noncompete agreements becoming largely unenforceable, companies may need to rethink the overall IP strategy. McCoy Russell has experience across the range of IP protections available and is ready to assist in this regard. Please contact us at [email protected] if you think we can be of assistance.

As a boutique woman-owned IP firm, McCoy Russell’s recognition as a top performing firm is due in large part to its highly-skilled teams comprising legal, technical, and administrative professionals. Today, we express our gratitude and appreciation for the unwavering dedication, professionalism, and expertise of the firm’s administrative team.

The administrative team is the backbone of the firm, ensuring its seamless day-to-day operations. From managing client communications and organizing schedules to overseeing essential records and action items, these dedicated professionals collaborate with each other as well as both the legal and technical members of the firm. Their efficiency and attention to detail enhances the firm’s ability to deliver outstanding service to its clients.

McCoy Russell LLP is proud to recognize the significant contributions of its administrative teams. Their hard work and pursuit of excellence enables the firm to provide elegant patent and trademark solutions and portfolio development. We extend our sincere thanks to all members for their exceptional efforts and commitment.

Monitoring and enforcement are essential for maintaining brand integrity, safeguarding market share, and supporting brand value. By monitoring how the brand is used in the market, businesses and business owners can quickly identify and address potential threats, such as unauthorized use of trademarks, copyrights, or trade secrets, thereby protecting a brand’s reputation.

Enforcement actions help reduce infringement, including counterfeit products, which can dilute the brand’s market presence and harm consumer trust. Strong enforcement demonstrates a brand’s commitment to protecting assets, bolstering customer loyalty and solidifying its market position.

An important part of McCoy Russell’s successful brand protection strategy is coordinating protection for a brand’s house mark with a strategy for secure branding expansion worldwide.

McCoy Russell’s trademark practice focuses on strategic counseling and action. Domestic and worldwide searching and clearance of both word marks and design marks as well as infringement and validity searches and studies are core services provided by McCoy Russell. McCoy Russell further provides trademark prosecution services, conflict services, including oppositions and cancellations, domain name dispute resolution actions, licensing, anti-counterfeiting and other related trademark services. McCoy Russell pursues filings and enforcement in over 130 countries coordinating with a team of trusted IP colleagues. Please contact us at [email protected] if you think we can be of assistance.

In the world of IP, two significant forms of protection for business innovations and proprietary information are trade secrets and patents. Both serve to safeguard valuable business assets, but they differ in terms of their scope, duration, and methods of enforcement.

Trade secrets encompass confidential business information that provides a competitive edge. Examples include formulas, processes, techniques, or any data not generally known to the public. The primary benefit of trade secrets is their longevity; as long as the information remains confidential, the protection remains in place. Trade secrets can provide indefinite protection as long as they are kept secret. Additionally, the process of obtaining trade secret protection does not require a formal application, making it an immediate and cost-effective option.

However, trade secrets have limitations. If the information becomes public knowledge, either through legal means or unauthorized disclosure, the protection is lost. Furthermore, trade secret holders may have difficulty proving that the information was misappropriated, which can be a challenge in legal battles.

Patents, on the other hand, provide exclusive rights to an invention for a limited period, usually 20 years from the filing date. Patents are granted for inventions that are novel, non-obvious, and useful, such as new devices, processes, or chemical compounds. The patent holder has the right to exclude others from making, using, or selling the patented invention during the patent term.

The benefits of patents include the ability to monetize the invention through licensing or sale and the right to take legal action against infringers. Patents offer strong protection and can be a valuable asset for businesses. However, the patent process can be lengthy and expensive, and once the patent expires, the invention becomes public domain.

McCoy Russell recognizes the strategic decisions necessary to take advantage of both trade secrets and patents and helps counsel and guide clients in developing an approach specific to their business.

Consulting with an intellectual property professional can help businesses navigate when is best to utilize one or the other, or both. McCoy Russell provides educational trainings around the local innovation community, clients, and their development teams to offer guidance on the most appropriate form of protection to maximize the value of their intellectual property and protect their competitive advantage.

Shading in design patent drawings is not merely an embellishment but an element that communicates elements of an invention. The United States Patent and Trademark Office (USPTO) imposes stringent guidelines on patent drawings in design patents, making shading indispensable for designers and inventors seeking US design patent protection.

Design patent drawings serve as visual blueprints of innovations, dictating the scope and character of the invention. The inclusion of shading can delineate surface contours, textures, and three-dimensionality, facilitating comprehension and clarifying what is protected to potential infringers.

Two primary shading techniques are commonly utilized: stippling and line shading. Stippling, employing dots to create gradients, may depict textured surfaces or other surface features. Conversely, line shading, achieved through parallel lines of varying thickness and spacing, may be used to illustrate and accentuate shape and depth.

Several best practices streamline the shading process. Accuracy as to the drawing is required to be able to accurately cover clients’ designs. Consistency in shading within each figure and within the group of figures is of high importance. Consistency operates to maintain coherence throughout the drawings. Although shading can be integrated in a number of aspects of a drawing, there is a balance as to the amount of shading necessary for clarity and care should be taken to avoid excessive detailing that may obscure the claimed design.

Shading should strategically accentuate unique design elements, highlighting the invention’s novelty. However, caution must be exercised when shading overlapping components to prevent ambiguity or otherwise introduce clarity concerns as to what is being claimed in the design. Moreover, foreign design filings do not utilize shading in the same manner as the US, thus, it is important to consider how the shading will be interpreted or removed for the related foreign design filings.

McCoy Russell has a specialty design practice that makes use of both in-house drawing specialists and trusted drafts teams to support its clients’ designs. Integrating shading with the design drawings is an important aspect of ensuring clarity in U.S. designs.

Patexia recently released their patent intelligence report for 2024. This report provides insights into the performance and activity of patent attorneys and agents, patent law firms, and companies by evaluating and ranking them based on their expertise, experience, success rate, and overall performance before the USPTO in the areas of biotech, high-tech, and overall practice. Among those organizations receiving accolades is McCoy Russell.

Further, John Russell has been ranked among the Top 25 Patent Attorneys. John has received much recognition for his work in patent law and is at the forefront of thought leadership through his blog www.mriplaw.com, which has become one of the most popular patent prosecution blogs available. Mr. IP Law has no paid advertising, and is fully supported by John’s personal involvement. Mr. IP Law helps elevate the practice of patent prosecution to a different level by sharing ideas, practical strategies, and opportunities with the Intellectual Property community so as to approve the ability of all innovators in securing the valuable intellectual property our economy needs to thrive.

McCoy Russell congratulates John on his recognition among the Top 25 Patent Attorneys in the U.S.

McCoy Russell, a distinguished firm in intellectual property law, celebrates another anniversary as the firm continues delivering intellectual property legal services and portfolio development to its clients. Since its inception, the firm has garnered a reputation for its high-quality patent applications, global trademark strategy, and cost effective solutions, serving a diverse clientele ranging from startups to Fortune 500 companies to government agencies and academic/research institutions.

McCoy Russell hosted a cake cutting at firm’s collaborative space in the heart of the Pearl. As the firm celebrates another milestone, McCoy Russell reaffirms its commitment to providing legal services and supporting client success.