I started canning tomatoes from my garden at least 10 years ago. Perhaps 11 or 12 years ago.

At the time I started, I did some research on the Internet and got comfortable with a method of canning that essentially requires the tomatoes to be boiled down and blended into a coulis or semi-sauce consistency (for at least 45 minutes, usually much more – for example, today, I simmered the tomatoes for 3 hours) and then pouring the cooked/blended liquid into sterilized jars with salt and a little bottled lemon juice. This approach puts boiling liquid into hot jars with boiled lids, but does not require boiling the jars once they’ve been filled.

Sometime in the interim, the English Internet got much more concerned about food safety with canning. For example, the USDA Guidelines on Tomato Canning state that all canned tomato preparations need to be processed in a water bath or pressure cooker (even if you’re dealing with a boiled preparation).

But, there are plenty of Internet resources in French and Italian (as well as a few in English) that still swear by this style of canning as what multiple generations of families have historically done with no problems.

After a few years of the annual debate about whether I needed to change my approach because the Internet says so, in this time of COVID-19 stay-at-home, I decided to buy a proper pH meter to figure out if my canned preparations were below the 4.6 pH cutoff of acidity, below which, C. botulinum bacteria cannot grow.

First, I ordered my new science toy. Then, I calibrated the pH meter according to the instructions. At first I thought it may be broken because the distilled water kept testing at a pH below 6 and I thought we all knew that water was supposed to be a pH of 7. Welp, turns out that’s true immediately after distillation, but when it sits around exposed to the atmosphere, distilled water absorbs carbon dioxide and becomes slightly acidic with a pH of around 5.8.

Relieved that my new toy wasn’t broken, I proceeded to test the pH of the raw tomatoes I was going to use to make the sauce — I took 3 samples for most of the tomatoes and there was some variance, even within the same piece of fruit. My pH meter is rated to be correct to within 0.01 pH. Here are the readings:

• White Oxheart: 3.90, 3.83, 3.97
• Snowberry: 3.90, 4.37, 3.96
• Amish Salad: 4.39
• Kentucky Beefsteak: 4.01, 4.15, 4.17
• Golden Globe: 4.61, 4.86, 4.41
• Isis Candy Cherry: 4.51, 4.37, 4.83

After 1 hour of boiling, the sauce tested at 3.96 & 3.99. After 2 hours of boiling, I used the stick blender to break up the remaining chunks of flesh and skins and tested the pH immediately after blending, where it measured 4.09 & 4.08.

After 3 hours of boiling, I tested the sauce and it measured 3.98 & 4.01. At this point, I was feeling pretty good. Since pH is a logarithmic scale. A pH of 4 is significantly more acidic than 4.6.

For fun, I tested the lemon juice and it measured at a pH of 2.54 and 2.53. I put some lemon juice in each of the quart jars as well as some salt, filled the jars, and then stirred the mixture in each jar with a chopstick before my final pH measurement.

The five quart jars measured 3.95, 3.69, 3.88, 3.85, and 3.78. All well under the 4.6 danger point. So, I cleaned the rims, put the boiled lids on top, tightened the bands, and turned the jars upside down to cool. I am now very comfortable that the science supports my traditional no-water-bath approach to canning tomato coulis from my garden.

• 1 cup black beluga lentils
• 1 yellow onion, 1/2 minced, 1/2 chopped
• 6 cloves garlic, minced
• 3 celery stalks, minced
• EVOO
• 6 T butter
• 1 lb mushrooms, cut in halves or thirds, parallel to the stem
• 6 sprigs thyme
• red pepper flakes
• 3-4 cups chicken broth or bouillion
• splash white wine
• splash champagne vinegar

Melt 2 T butter in 1 T EVOO in a sauce pan & sautee celery and minced onions ’til soft (~9 minutes) on medium heat. Add lentils & thyme and stir ’til coated. Add 3 cups broth or bouillion/water, 1 T black pepper, and bring to a low simmer. Cover & cook until lentils are al dente (~35-40 minutes), checking the liquid level to stir and add more liquid if necessary every 10 minutes. Turn of the heat, remove the thyme sprigs, add champagne vinegar to taste (~1-2 T) and continue to stir the lentils as they cool to allow the remaining liquid to boil off.

In a cast iron pan, heat 2 T EVOO on medium, and brown the mushrooms on their sides 4-5 minutes each side. Add 2 T butter, garlic & chopped onions and cook the mixture until the onions are soft. Turn off the heat, sprinkle red pepper flakes, deglaze the pan with a bit of white wine, add the remainder of the butter and stir until melted.

Add the lentils to the cast iron pan, turn up the heat, and cook together while mixing for a few minutes to cook off a little bit of the remaining mixture.

Enjoy!

People are often surprised to learn that employers sometimes try to claim ownership in an employee’s intellectual property for inventions that are not related to their job.

Like many attorneys who work with startup companies, I am a huge fan of California Labor Code 2870.  This law says that an employer in California may not require an employee to assign IP created by the employee during the time of that employee’s tenure if it’s created on the employee’s own time, without using the employer’s resources (use your own non-company owned computers and network connectivity, people!), and so long as it is not related the company’s research and development.

An untold number of start-up companies have been created by founders in California who did the initial IP development on the side while holding down a salaried job with an employer.  Statutory protection of inventor rights in independent inventions (alongside a prohibition against most post-termination non-competes) is often cited as one of the reasons the vibrant startup ecosystem in Silicon Valley and throughout California exists.

Unfortunately, I’ve seen many contracts where employers purported to own all (or much more than California allows) of the intellectual property created by the employee during their employment.  Thanks to California Labor Code 2870, the overreaching portions of those contracts are unenforceable in California.  In California, founders who create IP for their next startup (or FOSS developers who work on unrelated FOSS projects) can feel comfortable that the IP created in their moonlighting, hobbies, side hustles, etc. are their own property if they follow the rules.

I knew that a few other states had similar inventor rights statutes on the books, but it had been a while (let’s be honest, probably a decade) since I’d looked into it generally.  So, in preparation for a lecture I was giving to new engineering graduates (with job opportunities all over the United States), I did some Internet searching.

I was very surprised to learn that Delaware has an inventor rights statute.  How had I not heard about/internalized this before?

As you may know, Delaware has more corporate entities than people.

According to the Secretary of State’s 2016 Annual Report, there were more than 1.2 million corporate entities registered in Delaware, and at that time, more than 2/3 of the Fortune 500 were Delaware corporations.

In other words, Delaware is the most popular US state for corporate formations and many, many companies (especially big public companies) that employ lots of people are Delaware corporations.

Because of this, many of the contracts with overreaching IP terms I’ve reviewed in the past were with Delaware corporations.  Most of those employees were not working *in* Delaware, and I’ve always looked to the labor code of the state in which the employees were employed.  However, if a company chooses to avail itself of Delaware law by incorporating there, it is subject to Delaware law, public policy, and jurisdiction.  I don’t know why it hadn’t occurred to me that all employees who work for a Delaware corporation can point to  19 DE Code § 805 (2017) :

Any provision in an employment agreement which provides that the employee shall assign or offer to assign any of the employee’s rights in an invention to the employee’s employer shall not apply to an invention that the employee developed entirely on the employee’s own time without using the employer’s equipment, supplies, facility or trade secret information, except for those inventions that:

(1) Relate to the employer’s business or actual or demonstrably anticipated research or development; or

(2) Result from any work performed by the employee for the employer.

To the extent a provision in an employment agreement purports to apply to the type of invention described, it is against the public policy of this State and is unenforceable. An employer may not require a provision of an employment agreement made unenforceable under this section as a condition of employment or continued employment.

Those of you who know California Labor Code 2870 will find this language very familiar. The Delaware version is just a slightly different version of the same law.  In general, I think the Delaware drafting is slightly tighter, although I don’t like the lack of the “at the time of conception or reduction to practice” limitation. I do, however, love the clear final sentence, which I will be using to argue against over-reaching IP provisions in Delaware corporation employment agreements.

Sure, a greedy corporation could claim that even though Delaware won’t enforce an egregious IP assignment, perhaps another state where the employee is working will.  But it’s not a good look for the employer to intentionally go against the public policy of the state where they are availing themselves of corporate protection.  Most employers don’t sue to acquire employee IP, but rather point to contracts and demand assignment from employees who are scared to incur legal fees.  I suspect they’ll be even less likely to sue if they realize their employee is aware of a public policy of Delaware that specifically prohibits the contractual term they are trying to enforce.

California adopted Labor Code Section 2870 in 1979.  Delaware adopted Labor Code Section 805 in 1984.  I’ve confirmed that as of today, at least the following states (I need to do a 50 state survey) have an inventor rights statute:

Including the weight of all of the Delaware corporations plus employees working in and corporations incorporated in all of the other green states above means that inventor rights statutes are not a leading-edge policy that only applies to a few select states and companies.  Inventor rights is actually a legal norm that applies across the majority of large technology employers in the United States, and even employers who are not expressly required to respect them should consider that failing to do so is likely to cause them to lose out on top talent in their employment pool.

For more information, see the redline below for a detailed display of the differences between California’s and Delaware’s statutes, or click on the links to see the specific statutes for each state.

California https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=2870

Washington http://apps.leg.wa.gov/rcw/default.aspx?cite=49.44.140

Nevada https://law.justia.com/codes/nevada/2010/title52/chapter600/nrs600-500.html

Utah https://le.utah.gov/xcode/Title34/Chapter39/C34-39_1800010118000101.pdf

Kansas https://law.justia.com/codes/kansas/2006/chapter44/statute_18289.html

Minnesota https://www.revisor.mn.gov/statutes/?id=181.78

Illinois http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2238&ChapterID=62

North Carolina https://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_66/Article_10A.pdf

Delaware http://delcode.delaware.gov/title19/c008/index.shtml

SCaLE 14X (The Southern California Linux Expo) put on a wonderful full-day MCLE last week.  I spoke on recent US Copyright cases and their applicability to the Free and Open Source Software world.

Slides available here (US Copyright Law Recent Developments and FOSS 2016.01.22) in case others may find them useful.  (As usual, feel free to use, quote, distribute, etc. so long as you leave my copyright notices in place for substantially similar works and note my presentation as the source for any material you may use in derivative works you may create.)

These conversations are ugly.

But I’m not scared of ugly.

I try to have these conversations with my clients when they are doing well, have money, are growing, and the sky is blue. But, occasionally, especially for the first time entrepreneur team, at that point, even though they’ve been referred to me by someone who says, “she tells it like it is” they don’t want to listen.

In the hopes that you are here because you do want to listen — here goes:

First and foremost – That money in the bank account is not yours. If you decide to shut down your start-up and you move money from its bank accounts into your own, or others who aren’t *legally* entitled to it, you may be *personally* liable.

I know. I know. You want to pivot. You think that money is yours. You think you *need* it to pivot. But contract law and employment law (and god help you, tort law) all have first dibs on that money – if you move it, you are giving your creditors a good argument that they should be able to come after you personally. Pivot from within the corporate entity — don’t try to divert the cash.

Second — When I explain bluntly *why* you may want a termination for convenience, even when your customers insist you don’t need one — it’s because when you are running out of money and want to shut down your non-profitable contracts, you won’t be able to pick and choose what customers to terminate without one.

Third — when I explain carefully *that you must not specify detail X* if you need the flexibility you have told me is essential – you are not in a good spot if you later specify detail X with particularity in a written contract in order to close a deal with a customer who later comes back with a nastygram demanding performance on the detail you were trying to avoid.

Finally, at the end of the game, if you come to me and demand legal assistance for “continued relationships” and “good will” and “recommendations to your peers” please be sympathetic to my perspective.

Like your fledging business, mine is one that makes or breaks it by collecting on bills due and payable. Only, unlike a venture-backed business, I have no free checks from people who are betting on my future success to run with.

For me, it’s do or die, every month (my staff gets paid, regardless of whether I do). As such, my firm is not likely to put much stock in a continued relationship, good will, or recommendations to peers of a company who didn’t think it was important to pay for the services they consumed.

Yes — I understand that there are large law firms out there who are willing to float businesses with tons of potential for months or even years. If you can get them to do your legal work for a future promise of payment, you should take that deal. It’s amazing. Unfortunately, while I wish I was cash-flush enough to do so, I can’t offer it.