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Twelve Days of Tort Law – Service of Process

On the tenth day of Christmas, a marshal served on me! A complaint, but he did so improperly!

Welcome to part ten of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: service of process.

Being the astute reader you are, there is a good chance you noticed that each of these festive law blogs begins with a marshal serving a complaint. Today we are going to learn what that means.

Much like my festive tort law postings, civil lawsuits in Connecticut begin with a state marshal serving a complaint. Why, you ask? Simple. Because I think it’s funny.

Oh, you meant why do Connecticut lawsuits begin with service by a marshal? Well, that’s simple too. Because Connecticut General Statute § 52-45a says they have to. If not, the lawsuit can be dismissed for insufficient service of process. What does this mean? Well, that’s not so simple. If you’re crazy enough to be interested in it, you should go to law school (or have a drink with a group of lawyers).

The take away? If you are served by a marshal, you need to take it seriously. DO NOT disregard it. Instead, call an attorney.

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

Want to read more? Find the rest of the series here:

Chris Mutchler
Christopher Mutchler

Copyright Christopher Mutchler – Wethersfield, CT – 2018

Snapchat: Innocent Fun, or a Statutory Bar to Patentability?

Back in law school, I wrote an article contemplating the implications of young employees posting to Snapchat images of proprietary designs prior to those designs being patented. Today, I will address that issue from the prospective of defense counsel seeking to challenge the validity of such a patent in an infringement litigation.

As a disclaimer, it is important to note that I am not licensed to practice before the United States Patent and Trademark Office, and as such cannot speak to the implications of anything contained herein on patent prosecution, either in pre or post grant proceedings. Rather, the contents of this article are relevant only with particular regard to an invalidity defense in the context of a suit for patent infringement. For advice on the implications of this or anything else on patent prosecution, contact a licensed patent attorney.

For those who don’t know, Snapchat is a social media platform whereby users communicate with one another via transmitting photographs and video set to “disappear” after a finite time period. Messages can either be privately exchanged between two individuals, or more public, up to and including publicly accessible.

For any of what follows to make sense, we need to do a quick high-level rundown of patent law. Patent protection is governed by Title 35 if the United States Code, of which §§ 101, 102, 103, and 112 are, generally, most impactful upon patentability. 35 U.S.C. § 101 dictates patentable subject matter; 35 U.S.C. § 102 proscribes “novelty” as a condition for patentability; 35 U.S.C. § 103 proscribes “non-obviousness” as a condition for patentability; and 35 U.S.C. § 112 proscribes the form of patent prosecution documents.

Patent infringement is a Federal cause of action governed by 35 U.S.C. §§ 271, et seq. Almost always, when an action for patent infringement is commenced, the defendant accused of having infringed will contest the validity of the patent(s) alleged to have been infringed. Pragmatically speaking, this is because invalidity is, in essence, a complete defense to infringement. To over-simplify for the sake of clarity, you cannot infringe a patent that is not a valid patent.

35 U.S.C. § 102(a)(1) provides that an inventor shall not be entitled to a patent for an invention that has been in public use prior to the time of filing. There are exceptions to this generality, particularly where (35 U.S.C. § 102(b)) the inventor himself or his joint inventor committed the public disclosure, which disclosure was made one year or less prior to the effective filing date. For the sake of simplicity, we will assume that none of these exceptions apply.

How does any of this relate to Snapchat? When I initially began the thought process behind this article, I was a young law student who had freshly obtained a degree in engineering. While I was camped out in the library with my nose crammed in law textbooks, many of my engineering friends were off working on exciting new technology, which they would document on Snapchat. Between the jealousy I felt and the amount of studying I had been doing, I could think only one thing: “Is that a public disclosure?”

Since that time, I have mulled the issue over quite a bit, and discussed it with much more experienced attorneys than myself. In so-doing, I have arrived at this conclusion: it very well may be.

You will notice that the answer is neither definitively “yes” nor definitively “no.” As is so often the case in law, it depends heavily on the facts of each particular case. For portrayal on Snapchat to invalidate a patent, it would have to be substantially more than a three-second photograph you sent to your mother with a new technology barely visible in the background. Such an instance would not be “public use” within the scope of § 102(a). However, a large publicly traded company that mistakenly transmitted a fifteen-minute video of an engineer thoroughly explaining a new technology for the public to view, and which then failed to notice its mistake for several weeks, may very well be invalid pursuant to § 102(a). Between those two extremes is an area of grey depending heavily on the specific facts of the disclosure.

The moral of the story? Put your phone away at work. It probably won’t amount to anything, but if it does, it could be bad. Better safe than sorry.

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help.

Christopher Mutchler
Christopher J. Mutchler, Esq.

Copyright Christopher Mutchler

Twelve Days of Tort Law: Assault

On the ninth day of Christmas, a marshal served on me! A complaint alleging I assaulted someone civil-y!

Welcome to part nine of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: assault.

Assault is a very simple tort, but one that is often confused due to its portrayal in popular culture. Assault is an act intended to create reasonable apprehension of imminent harmful or offensive contact. You do not need to actually hit someone to assault them, you just have to make them fear that you are about to hit them. That assault did not require any actual touching absolutely blew my mind in my first year of law school, and I could not get beyond the fact that the professor had addressed its portrayal to the contrary in popular culture. To get a better understanding, lets use the same example as in battery.

Here it is again. It’s Christmas morning, and the family is opening presents. Little Billy’s presents are wrapped in blue wrapping paper, and Little Susie’s presents are wrapped in pink wrapping paper. Little Billy unwraps a toy dump truck, and begins shrieking in excitement. Little Susie unwraps a doll house, and begins to cry. Little Susie walks over to Little Billy and gives him a great big shove.

“MY DUMP TRUCK!” She screams.

In Part Eight, we learned that Little Susie has committed a battery. But has she also committed an assault?

As is so often the case in law, the answer is “it depends.” We need more facts to say definitively whether an assault has been committed. There absolutely has been a harmful or offensive touching, and Little Susie clearly acted intentionally. The crux of an assault claim, however, is whether the person assaulted was “reasonably apprehensive” of the harmful or offensive contact.

If Little Billy had his back turned and Little Susie snuck up behind him without his knowing, then Little Billy could not have been put in “reasonable apprehension.” This is because under these facts, Little Billy did not know that Little Susie was about to push him, and thus could not have been fearful of being pushed.

If, however, Little Susie did not sneak up on Little Billy but instead turned a bright shade of red, began stomping her feet and pounding her firsts, let out a shriek and charged Little Billy, then we may have a case for assault. All of these actions would make a reasonable person fearful that they were about to be hit. If Little Billy watched Little Susie act in this way before Little Susie Pushed him, Little Susie may very well be liable to Little Billy for assault.

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

Chris Mutchler
Christopher Mutchler

Copyright Christopher Mutchler

Twelve Days of Tort Law: Battery

On the eighth day of Christmas, a marshal served on me! A complaint alleging (civil) battery!

Welcome to part eight of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: battery.

Most people have heard the term battery in the criminal context, but what you may not be aware is that battery can be brought as a civil action as well. Battery is defined at common law as unconsented-to intentional contact with another that is either harmful or offensive. What does that mean?

Here’s an example. It’s Christmas morning, and the family is opening presents. Little Billy’s presents are wrapped in blue wrapping paper, and Little Susie’s presents are wrapped in pink wrapping paper. Little Billy unwraps a toy dump truck, and begins shrieking in excitement. Little Susie unwraps a doll house, and begins to cry. Little Susie walks over to Little Billy and gives him a great big shove.

“MY DUMP TRUCK!” She screams.

Little Susie touched Little Billy “harmfully” when she shoved him. She meant to do it. Little Billy did not consent to being shoved. Little Susie may be liable to Little Billy for battery. Simple.

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

Chris Mutchler
Christopher Mutchler

Everyone Is Talking About “Fresh Prince” Star Alfonso Ribeiro’s Lawsuit Over the “Carlton Dance” in Fortnite – Here’s How He Could Have Strengthened His Case For Copyright Infringement

Alfonso Ribeiro’s lawsuit against Epic Games over the unauthorized use of the “Carlton Dance” in its mega-hit “Fortnite” (Ribeiro v. Epic Games, Inc., et al., CaseNo. 2:18-cv-10412 (C.D. Cal. December 17, 2018)) has drawn a lot of media attention. Ribeiro’s complaint against the video game maker was filed on December 17, 2018, and includes six grounds for relief, two of which are allege copyright infringement.

According to the complaint, Epic Games, Inc. et al. (“Epic Games”) “capitalized on Alfonso Ribeiro’s celebrity and popularity” by selling as an in-game purchase Ribeiro’s “signature dance.” For those who may be unfamiliar, Ribeiro is “known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air….” The complaint alleges that Ribeiro created what has come to be known as “The Carlton Dance” in 1991, and first performed it on The Fresh Prince of Bel-Air during the episode Will’s Christmas Show. Fortnite is a popular free-to-play video game which profits by selling in-game purchases.

The complaint alleges that Epic Games profited from selling Ribeiro’s digital likeness and proprietary dance in-game without Ribeiro’s consent. According to Ribeiro’s complaint, Ribeiro submitted an application for copyright registration of three variations of his dance two days before filing suit, on December 15, 2018.

Contrary to what many mistakenly believe, the fact that Ribeiro had not “formally” copyrighted his dance with the United States Copyright Office at the time Epic Games incorporated it into Fortnite is not fatal to his copyright infringement claims. What many confuse for “copyright protection” is actually the separate and distinct concept of “copyright registration.” Even if a work is not registered, the author of the work has a copyright to it at common law. This means that you can sue for copyright infringement even if you have not registered your work.

This does not mean, however, that registration is useless. In fact, quite the opposite is true. Registration provides a copyright holder with several benefits, including increased damages known as statutory damages (17 U.S.C. § 504(c)). Copyright registration also creates the rebuttable presumption of ownership and validity, two issues that almost surely will be litigated extensively here. While far from fatal to his case, Ribeiro’s copyright infringement claims could have been a touch stronger had he sought and obtained copyright registration for his dance immediately upon its creation.

It is still too early to determine how litigation will unfold, but it will be exciting to see Epic Games’s response!


Christopher J. Mutchler, Esq.

The Twelve Days of Tort Law: Prejudgment Remedy

On the seventh day of Christmas, a marshal served on me! An application for prejudgment remedy!

Welcome to part seven of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: prejudgment remedy. Hopefully, you read Part Six of our series and you already know why you’re being sued. If not, you can check it out here:

What is a prejudgment remedy? Connecticut is one of very few states that allows an injured person to secure “collateral” for their injuries in certain situations. The Court’s order that such collateral be secured is called “prejudgment remedy,” and is governed by Chapter 903a of the Connecticut General Statutes (Conn. Gen. Stat. §§ 52-278a, et seq.). If the court finds that there is probably cause that judgment will be rendered in the amount sought, it may order an attachment of assets before the case even gets to trial.

The consequences of this are absolutely huge. If the case against you is strong enough, you can be forced to pay out damages almost immediately. Prejudgment remedy is thus often used as a tool to quickly force a settlement. If your dog did enough damage, your home could be liened; why fight it for years when you may be able to settle for less?

As always, nothing contained herein is intended as advice on any situation, and is simply insufficient to replace the advice of competent legal counsel. If you have been served with an application for prejudgment remedy, you should contact a lawyer as soon as possible. If you have been injured, only a licensed Connecticut attorney can determine whether prejudgment remedy may be appropriate in your case.

Life’s not always fair, but it may be fairer than you think it is. You shouldn’t have to suffer over someone’s else’s error. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

Chris Mutchler
Christopher Mutchler

The Twelve Days of Tort Law: Dog Bites

On the sixth day of Christmas, a marshal served on me! A suit alleging strict liability!

Welcome to part six of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: dog bites. In Connecticut, pursuant to Conn. Gen. Stat. § 22-357, a dog’s owner is “strictly liable” for any damages caused by his/her dog if that dog bites someone. 

What does is it mean to be “strictly liable” for something? Good question. Strict liability means that no matter the circumstances that gave rise to a particular event, you are on the hook for damages once that event occurs. In the context of dog bites, this means that if your dog bites someone, you are on the hook for their medical expenses no matter why your dog bit the person.

There are, of course, some exceptions to this. For instance, Connecticut law does not allow recovery for a person who first “teased,” “abused,” or “tormented” a dog that bit them. It is worth noting that no person under the age of seven may be said to have “teased,” “abused” or “tormented” a dog that bits them.

Now, because this is a Christmas series, you probably are wondering what ridiculous way I am going to say this can ruin your holiday. However, because this is an easy one I am going to leave the specifics to your imagination. Create a good story in your head, because on Day Seven the marshal will be bringing a prejudgment remedy and seeking to lien your house for it!

Life’s not always fair, but it may be fairer than you think it is. You shouldn’t have to suffer over someone’s else’s error. If you’re in a bind, the Law Office of Christopher J. Mutchler may be able to help.

Chris Mutchler
Christopher Mutchler

The Twelve Days of Tort Law: Days Four and Five

On the Fourth/Fifth day of Christmas, a marshal served on me! Nothing. Days four and five are Saturday and Sunday, respectively, and I don’t know any marshals who are willing to effect service on weekends (if you know of any, please let me know!).

Instead, I spent the morning playing video games while my girlfriend thought I was writing this (love you, babe!) Tune in tomorrow to hear an exaggerated tale of how your dog could cost you your home this holiday!

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

Chris Mutchler
Christopher Mutchler

The Twelve Days of Tort Law: Non-Delegable Winter Duties

On the third day of Christmas, a marshal served on me! A suit for breach of non-delegable duty!

Welcome to part three of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: non-delegable winter duties. In this posting, you will learn what a non-delegable duty is, how such a duty can be breached, and why I felt the topic to be worthy of throwing off the melody of my opening line.

Understanding what a “non-delegableduty” is requires you to first understand what a “duty” is. Apart from my dry sense of humor, a recurring theme that I’m sure you’ve noticed in this series is one person owing a duty to another. This is because “duty,” or “duty of care” is the basis of most of personal injury law. A “duty” is an obligation, and the “duty of care” is just another word for the idea that we are obligated to act a certain way around others. Some duties can be delegated, or assigned contractually to other people. The duty of care cannot.

When a person fails to act as he or she should have, that person is said to have “breached” the duty of care. A shop owner who sees a spill but doesn’t bother to clean it up has breached the duty of care he owes to his customers. A driver who is flying down the fast lane while texting has breached the duty of care he owes to everyone else on the highway. A homeowner who allows his/her sidewalk to freeze over and does nothing about it has breached the duty of care he/she owes to passersby.

Easy, right? Great. Now for the last point. Why, pray tell, is this non-delegable duty business so important to discuss that I would do something so drastic as throwing off the melody of my opening line by a couple of syllables? Because it’s winter time, and ensuring that your sidewalk has been adequately cleared is a non-delegable duty. That means even if you paid Little Timmy from down the street $50.00 to shovel your sidewalk by hand knowing full well it would have cost less to have it done professionally, you(and NOTTimmy) can still be on the hook for damages if someone gets hurt on your icy walkway. You may still be able to recover from the little weasel based on indemnity, but that’s a whole other ball of snow (ha ha).

The takeaway from all of this is simple: if you don’t want to get sued, its probably best to brave the cold and make sure your sidewalk is taken care of, even if you paid someone else to do it.

I hope you enjoyed Part Two of the series. You can find the others at the link below:

Life’s not always fair,  but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

The Twelve Days of Tort Law: Civil Liability for Underage Drinking

On the second day of Christmas, a marshal served on me! A complaint alleging that I acted recklessly!

Welcome to the second installment of The Law Office of Christopher J. Mutchler’s festive twelve part pseudo-satirical series on Connecticut personal injury law: civil liability for underage drinking. The law on this is pretty complicated, so before I get into whether you’re on the hook for medical bills if Uncle Bob’s college aged son falls flat on his face after his sixth glass of eggnog that he swears he didn’t know had alcohol in it, I want to talk about an important distinction: the difference between civil and criminal liability.

Very broadly and perhaps over-simplistically, there are two types of things for which a wrongdoer may be held liable: criminal offenses and civil offenses. Very generally, and again perhaps over-simplistically, criminal offenses are things that could put you in jail, and civil offenses are things that you just have to pay money for. As almost everyone is familiar with O.J. Simpson’s famous double homicide case, I will use that as a clarifying example. O.J. was found not guilty of the criminal charges that were filed against him, but was found liable for the civil charges filed by the victims’ families. This is why O.J. did not serve any time in prison, but was required to pay out a huge sum of money.

Got it? Good. Now that you know that the difference between the civil and criminal consequences of an action, you will appreciate the importance of my telling you that everything that follows is with regard ONLYto the civil consequence of the actions described. There are plenty of things that may not result in civil liability but will very probably carry a criminal penalty. Of course, even with respect to the specific civil actions that follow, this article is no replacement for the advice of competent legal counsel, and should not be relied upon for any determination of potential liability. Nothing contained herein should be interpreted as legal advice with regard to any specific situation, for which you should always retain competent legal counsel.

Okay, now on to the good stuff. Here’s a hypothetical that many may identify with. It’s Christmas day, and you’re hosting. Friends and family from all over the country have gathered joyously at your home, laughing cheerfully while recounting all that’s gone on in their lives since this time last year. There is a flurry of snow, but no more than a dusting is expected to stick until late tonight. Perfect. A chorus of toddlers accompanies the Bing Crosby album blaring in the background, and everything is wonderful. You politely excuse yourself, and walk back to the kitchen for a refill.

You mix yourself a Christmassy drink, excited for the expensive bottle of liquor you’ve been saving for today, and head back to the family. Your first sip is a little disappointing (it tastes just like the five-dollar-per-pint crap you used to drink in college), but you chalk it up to an unrefined pallet. As you leave, you notice your weird college-aged nephew, Douglas, eying you guiltily from the corner of the room.

“DOUGLASSSS!” you yell, slightly drunkedly as you poke Douglas in his ribs obnoxiously with your index finger. “How’s freshman year at State been treating you?”

It is clear that freshman year at State has not been treating Douglas well. He was a little on the pudgy side beforehe moved on campus from your neurotic sister’s house, and he has clearly been enjoying his new found freedom a little too much. His clothes are dirty, his hair is greasy, his face has broken out, and he’s added a good twenty-five pounds to his petite frame.

“It’s going grrrreeat, Cousin Pat!” he slurs in response. “Hey, I’m having a lot of fun at your party! This cheesecake is delicious! Only thing that would make it better is if it were rum cake! Ha ha ha ha! I’m just kidding. I’m too young to drink rum. Or any alcohol. Ha ha ha ha!”

Your name is not Pat, Douglas is not your cousin, and your suspicions are aroused.

“Glad to hear it, Douglas!” you reply. “Say, what do you have in that cup there?”

“What, this?” he fumbles, nervously. “Just a little decaf coffee. No alcohol here, no-sir-ee. Not for me, I’m only 18. That would be illegal, and I wouldn’t dream of doing something illegal. I’m just not that kind of kid, Cousin Pat!”

Annoyed, you remind Douglas of your name, and demand that he hand over his drink. You take a sip, and realize where your good liquor went. Now you’re faced with a choice: do you ruin the otherwise perfect holiday, or let this slide until later? His parents drove him here, and the only person he could really harm is himself. What should you do?

Well, criminal law and your own moral code may dictate otherwise (see why the distinction was important?), but as far a civil liability goes, you may have some reprieve. The Connecticut Supreme Court addressed a very similar issue in a 2014 case called Stafford v. Roadway.* In Stafford, thetwenty-year-old minor plaintiff showed up to a friend’s barbecue with a garbage bag full of beer (thirty beers, to be precise). While at the barbecue, the plaintiff drank about five of his beers and smoked some marijuana before taking off on foot for a bonfire scheduled later that evening. The plaintiff continued drinking all day, and was quite intoxicated by the time of the bonfire (“only four or five” of the original thirty beers remained at this point). The plaintiff continued to drink until he became so intoxicated that he fell asleep in a chair next to the fire.

After a period of time, the plaintiff woke up and tried to walk off towards the woods to relieve his bladder. Other guests, concerned for his safety, tried to get the plaintiff to sit down, but to no avail. As he was walking, he stumbled and fell into the bonfire. The plaintiff was taken to the hospital for his injuries, where his blood alcohol content was found to be 0.202. As a result of the fall, he suffered serious burns to his hands, forearms, and buttocks. He sued the host of the bonfire, among others, for his injuries.

That’s ridiculous, you say? Well, apparently the jury thought so too, because they returned a verdict in favor of the defendants. Primarily at issue during trial was whether the plaintiff’s own negligence exceeded that of the defendants’ to such an extent as to preclude liability. In other words, the jury was asked to decide whether something the plaintiff did rather than something the defendants did caused the plaintiffs injuries. The jury held that this was in fact the case, and the Supreme Court upheld the grounds for their verdict. After all was said and done, the defendants came out on the winning end.

So what does all of this mean for your drunk, underage nephew Douglas who has clearly had a rough couple of months off at State? Well, it means that at least as far as civil liability goes, you are safe to just let Douglas sleep it off. If he does something to injure himself, the mere fact that he is too young to drink legally is not going to relieve him of his duty to act responsibly.

I hope you enjoyed Part Two of the series. You can find the others at the link below:

Life’s not always fair, but it may be fairer than you think it is. If you’re in a bind, The Law Office of Christopher J. Mutchler may be able to help!

Chris Mutchler
Christopher Mutchler

*Stafford v. Roadway, 312 Conn. 184, 93 A.3d 1058 (2014).