Business Innovation is About More than Looking Forward

When most people think about innovation today, they often think about groundbreaking new technology. While this is often what leads to exciting new changes, innovation is about more than the latest technology. Instead, it can be about taking a look back in order to move forward. Older methods and technology have a certain reliability and history to them, which can still have untapped potential.

Take a look at Google’s cell phone service, which was announced just in April called Project Fi. What Project Fi does is allow your smartphone to make phone calls, send text messages, and use data all over Wi-Fi, when you have it, and if you don’t, then it uses one of two different traditional cellular networks (Sprint & T-Mobile). This is a great example of repurposing old technology (Wi-Fi) for a new and innovative solution to modern issues. Cell phone reception can still be weak indoors but Wi-Fi is available in so many places that this can largely solve that problem. Additionally, even the fastest cell phone data speeds pale in comparison to typical Wi-Fi speeds, so why not use that instead and save money in the process?

Project Fi is all about saving money, its plans start at $20 per month for unlimited talk/text + $10 for each GB of cell data you buy. Project Fi’s plans only have you pay for data that you use, and refund you for what you don’t. Seems kind of weird to think that for years the envy of cell phone plans were newer, faster, and unlimited data usage, and now the latest smartphone plan is actually encouraging you to use older tech (Wi-Fi) and reward you for using less data than ever (over cell networks anyway).

Use Google as an example and think about ways that you can find a novel use for older technology, equipment, or methods that are reliable like Wi-Fi. If one of the most innovative companies on the planet found a way to do it, then so can you. After all, if innovation is all about thinking outside the box and being creative, then why limit yourself to only the latest tech?

Today’s tech-centric culture is surprisingly looking to the past more than you might think. Consider the popularity of organic and use of simple/natural ingredients in foods at grocers like Whole Foods, or the demand for handmade goods from sellers at Etsy. Try not to think about new technology as a replacement to older methods, but instead a supplement, just another tool in the toolbox of ways that you can accomplish, build, or make something new.

If you need legal advice on making a change to your business, or are ready to start a new business of your own, then don’t hesitate to reach out and contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at

CO Ranked #4 State for Business by CNBC

This year’s rankings by CNBC for best states for business are in, and Colorado has taken the #4 spot. This comes as a significant, but not surprising, improvement from last year, where we discussed CO’s position at #8 in the CNBC rankings. Take a look at a complete breakdown of the rankings by state and categories here.

The rankings are conducted by scoring each state on 10 key categories including the following (in order starting with the most valuable to the overall score): Workforce, Cost of Doing Business, Infrastructure, Economy, Quality of Life, Technology & Innovation, Education, Business Friendliness, Cost of Living, and Access to Capital. Colorado managed to snag top ten rankings in four categories including: Economy (3rd), Quality of Life (9th), Tech & Innovation (5th), and Access to Capital (8th). Colorado was noted for it’s strong economy with a low unemployment rate of 4.3% and its innovation.

I was surprised to see that the Centennial State only got 9th in the quality of life category, especially since it tied with Iowa for this position. There is so much great outdoor recreation to explore here in Colorado, but you can scrutinize the methodology and rankings yourself with the methodological breakdown available here.

Overall, this news comes as yet another of the growing number of reasons and reports demonstrating that Colorado is a great place to live and a great place to do business. Now could be a great time for you to get started and put your entrepreneurial spirit to work.

If you a ready to start doing business in Colorado, then don’t hesitate to contact the Law Office of E.C. Lewis, P.C., home of your Denver Small Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at

CO Anti-Patent Troll Law

Colorado recently passed a law aimed at reducing the amount of so-called “patent trolling.” Generally, “patent troll” is used as a derogatory term to describe non-practicing entities, which are entities that own a patent on something but do not use it themselves (they may license it to others or do nothing at all with it other than enforce their patent rights against others). Such entities may “troll” other companies that are allegedly using that patent without permission by sending them threatening letters that if they do not pay up a licensing fee for the patent, that they will take them to court over it.

There have been various cases where businesses have shut down or struggled after receiving these letters or paying the licensing fees. This has become an issue of particular concern in the tech industry where very broad patents have been issued, that arguably never should have been or at least been more narrow. You can check out these two This American Life podcasts on the subject if you want to learn more: When Patents Attack! Part 1; Part 2. However, more specifically, this law was motivated by cases where businesses have received threatening letters without much information as to who they were coming from or what the basis was for the alleged infringement.

HB-1063 aims to combat this by allowing Colorado’s Attorney General to go after people who send threatening letters in bad faith to companies asking for money over alleged uses of their patents by the company. The act would apply to instances such as where the sender of the letter falsely claims that litigation has been filed against the recipient or related persons, where there is no reasonable basis in fact or law for the allegations (such as if the sender does not own the patent in question or have any authority to license or sell it). The act can also come into play when the sender does not provide enough information to the recipient. Required information would generally include:

  • Identity of the person sending the letter
  • The number issued by the USPTO of the patent in question
  • Factual allegations regarding the specific areas that the recipient’s activities (products/services/technology) infringed the patent in question

Note that this law should not prevent anyone who legitimately has the rights to the patent and/or its licensing, unless you fail to send adequate information to alleged violators or send such letters without a reasonable basis. This means that so-called patent trolling will not cease to exist, but it should make allegations of patent infringement more substantive, clear, and transparent. This should also reduce abusive and more questionable instances of patent trolling.

It will be interesting to see if this law has the desired effect of both reducing the instances of “patent trolling” in Colorado and encouraging technology and knowledge-based companies to begin and grow in Colorado. From a legal perspective, it will also be interesting to see if this law will have any problems with preemption by federal law, basically meaning that this state law could be held invalid by the federal courts because it is incongruent with federal law (this legal concept is based on the Constitution’s Supremacy Clause).

If you have questions about intellectual property issues, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at

Coats v. Dish Network and CO Businesses

On Monday, June 15th, the Colorado Supreme Court issued its ruling in Coats v. Dish, LLC, this was a high profile case in Colorado symbolizing the clash between Colorado law permitting medical marijuana use, Federal law’s criminal approach to all marijuana use, and employers’ anti-drug policies banning marijuana use. All three of these issues came together in this case between Dish Network and Mr. Coats, a former employee of the company.

Mr. Coats is a quadriplegic who tested positive for marijuana while he was employed as a customer service representative by Dish Network. He defended his use by saying that it was done after work for medical reasons and that it was legal in the state of Colorado, and he stated that he would continue to use medical marijuana. He was subsequently fired, and Mr. Coats filed a wrongful termination lawsuit against Dish Network, claiming that his medical marijuana use was protected by Colorado’s “lawful activities statute.” C.R.S. 24-34-402.5 full text available here.

The relevant part of this law for this case was a portion of section 1:

“(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…”

This law is a small exception to the general rule that if you are an at-will employee, then you can be fired by your employer for any or no reason at any time without direct legal consequences. This law protects employees from engaging in lawful activities that they  engage in off the employer’s premises during nonworking hours. Note however that there are some exceptions even to this exception where employers may still fire for lawful, off duty conduct, but those were not at issue in this case.

Some news reports covering this story have imprecisely framed the issue. They claim that the CO Supreme Court was ruling on whether or not employees of businesses can use marijuana “off-duty.” This portrayal suggests that anyone who is employed and uses medical marijuana can no longer use it because of the ruling. This is not quite right.

What the CO Supreme Court was actually deciding was whether or not Colorado’s “lawful activities statute,” discussed above, protects employees who use medical marijuana from being fired for using it off the premises during nonworking hours. Ultimately, the CO Supreme Court determined that the word “lawful” in the law is not limited to Colorado law only. Instead, they held that it meant that it must be lawful under Colorado and Federal law, and that since all marijuana use is criminal under Federal law, then medical marijuana use would not be classified as “lawful” under the statute and would not be covered by the statute.

You may be thinking about the recent actions by the Federal government not to intervene in states where marijuana use is legal and how that related to this decision. The CO Supreme Court addressed this in a footnote:

“The Department of Justice has announced that it will not prosecute cancer patients or those with debilitating conditions who use medical marijuana in accordance with state law. Similarly, in December 2014, Congress passed the Consolidated and Further Continuing Appropriations Act that prohibited the Department of Justice from using funds made available through the Act to prevent Colorado and states with similar medical marijuana laws from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated and Further Continuing Appropriations Act, 2015, Pub. Law No. 113-235, § 538, 128 Stat. 2130, 2217 (2015). However, marijuana is still a Schedule I substance, and no medical marijuana exception yet exists in the CSA. As such, medical marijuana use remains prohibited under the CSA.”

Ultimately, this case means that if an employer fires you for using medical marijuana, the “lawful activities” statute does not protect you, so it is up to the employer to decide if medical marijuana use is acceptable. In practice, this may mean that, employed persons cannot use medical marijuana, but legally speaking, it is up to the employer to make that decision. As a Colorado business, this means that it is up to you to decide how you want to address medical marijuana use by employees, and it appears that this decision has not restricted your authority to manage employee drug use any differently than before this case was decided.

If you have questions about employment laws relating to your business, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at

Knowledge vs. Motive & Employment Discrimination

Here in the 10th Circuit, where Colorado is located, it was previously considered a requirement by the courts that discrimination claims under Title VII based on a religious accommodation required the employer to have actual knowledge of the religious accommodation request from the employee or prospective employee. In practice, this would mean that an employee or applicant would have to ask the employer for such accommodation before they could be liable for discriminating against them for this reason. At first glance, this sounds like it makes sense, but in practice, things are more complex. The Supreme Court recently reversed the 10th Circuit’s approach in an 8-1 opinion in the case of E.E.O.C. v. Abercrombie & Fitch Stores, Inc.

You may have heard of some of these cases in the news, as there have been a few. The gist of the facts from these different cases is that an applicant wearing a headscarf, as part of their religious beliefs, was not hired by Abercrombie, despite being qualified. The reason for this was because of the “Look Policy” that Abercrombie has for all of its employees, which prohibits “caps” to be worn by employees (there is no definition for caps in the policy but Abercrombie states this covers anything covering up a person’s head). Note however, that Abercrombie has since altered their Look Policy to allow for such religious headwear.

In the recent case, there was no discussion between the applicant and Abercrombie regarding her wearing the headscarf, other than that she was aware that Abercrombie had a “Look Policy” (but no details of the policy were discussed). The applicant never asked if the headscarf was okay and Abercrombie never asked the applicant if they would be wearing the headscarf on the job. Abercrombie simply assumed that the applicant would be wearing it, and did not hire her, since it would violate the Look Policy. The applicant won in district court, but the 10th Circuit ruled in favor of the employer. The 10th Circuit held that an applicant must communicate the need for a religious accommodation to an employer in order for the employer to be liable for discrimination. On review, the Supreme Court held instead that the need (or presumed need) for a religious accommodation only has to be a motivating factor for their decision not to hire the applicant, and that no actual knowledge of the need for such accommodation is necessary.

What does this mean exactly? No actual knowledge is required? Basically speaking, what the court seems to be telling us is that there is a clear distinction between knowledge and motive, and that employment decisions can be motivated by something, despite the employer not knowing with complete certainty as to its truthfulness. Here’s some insight from the Court’s opinion:

“Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

Here’s an example provided by the Court:

“…suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the…employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.“

What does this mean for businesses? It is simple, do not discriminate based on an applicant‘s (or employee’s) religious beliefs, or even based on religious beliefs that you think they have (even if you don’t know for sure). If you suspect that an applicant (or employee) will need a religious accommodation, and you make an employment decision motivated by this, then you have discriminated against that person under Title VII.

If you have questions about how to go about making employment decisions for your business in compliance with the law, please contact the Law Office of E.C. Lewis, P.C., home of your Denver Business Attorney, Elizabeth Lewis, at 720-258-6647 or email her at