Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Senator Sasse Proposes Legislation Extending the Patent Term for Inventions Intended to Treat COVID-19

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Posted in Biotech / USPTO

On April 6, 2020

On March 30, 2020, Senator Ben Sasse, R-Neb., introduced a bill that would create the Facilitating Innovation to Fight Coronavirus Act. The first part of the legislation would shield healthcare providers from federal, state, and local civil liability if they are testing or treating coronavirus patients in certain circumstances. The second part of the bill would extend patent protection for new and existing medical devices and drugs intended to treat COVID-19. The added patent protection under the bill would only apply to eligible patents. An eligible patent is “a patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease.” The bill proposes that the term for new eligible patents “not begin until the date on which the national emergency declared by the President …terminates.” Moreover, the bill provides that the term for an eligible patent “shall extend for 10 years longer than it otherwise would under [the Patent Act].” Thus the bill would enhance patent protection for inventions covering technologies created to treat the coronavirus and inventions covering existing technologies adapted to treat the coronavirus. The CARES Act, enacted on March 27, 2020, provides $140.4 billion in...

USPTO Waives Certain Deadlines in Light of the Coronavirus Outbreak

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Posted in Patent / USPTO

On April 3, 2020

On March 31, 2020, the United States Patent and Trademark Office (“USPTO”) issued a notice permitting 30-day extensions to the time allowed to file certain patent-related documents and to pay certain required fees. Gibbons previously analyzed the first USPTO coronavirus guidance. For this second guidance, the USPTO determined, under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), that the COVID-19 “emergency has prejudiced the rights of applicants, patent owners, or others appearing before the USPTO in patent matters, and has prevented applicants, patent owners, or others appearing before the USPTO in patent matters from filing a document or fee with the Office.” The USPTO thus provided parties with the ability to extend certain patent deadlines if the party is personally affected by the COVID-19 outbreak. The USPTO notice expressly provides that three Patent Trial and Appeal Board (PTAB) deadlines may be extended for 30 days upon request: a request for rehearing of a PTAB decision; a petition to the Chief Judge under 37 C.F.R. § 41.3; and a patent owner preliminary response in a trial proceeding. “For all other situations, a request for an extension of time where the COVID-19 outbreak has prevented or interfered with a filing before the Board can be made by contacting the PTAB.” Relief under the notice is...

Is Your Property Historic? You Might Not Think So, But Always Check!

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Posted in Development/Redevelopment

On March 30, 2020

In a state like New Jersey, land in urban or developed areas is often at a premium, and developers will need to be mindful of whether the property has any historical significance. In addition to the standard approvals required from local planning or zoning boards, one approval that is commonly overlooked is that of the local historic preservation office or commission. These entities are authorized under the Municipal Land Use Law, N.J.S.A. 40:55D-107 et seq., and are now common in municipalities large and small throughout New Jersey. Where a formal commission exists, applications for development are to be referred to the historic preservation commission for review whenever applications involve property in historic districts or on historic sites identified by the official map or master plan. In other municipalities, there may be an application and approval process separate from the typical land development board. Some are required as part of completeness obligations for applications for development, where others are a separate process from the typical application for development. One active historic preservation commission has been the City of Newark’s Landmarks and Historic Preservation Commission (the “Commission”). This article provides a brief primer on when Commission approval is required, and what developers can expect during the application and approval process in the City of Newark (“the City”)....

New Jersey Enacts and Expands Laws Providing Employees With Enhanced Benefits and Protections Resulting From COVID-19

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Posted in Family Leave

On March 30, 2020

New Jersey Governor Phil Murphy has recently signed into law two important bills – one (AB 3848) providing job protection to certain employees impacted by COVID-19 (“the COVID-19 Act” or “Act”), and the other (S2304) expanding the scope of the New Jersey Earned Sick Leave Law (ESLL), the New Jersey Family Leave Act (FLA), and the New Jersey Temporary Disability Law (“TDBL”). The Act, along with the amendments to the existing laws referenced above, are discussed below and are intended to increase protection and benefits to employees as a result of COVID-19. Job Protection for Certain Employees Who Take Time Off Due to Infectious Disease Under the COVID-19 Act, during the Public Health Emergency and State of Emergency declared by Governor Murphy concerning the coronavirus, employers are prohibited from terminating or refusing to reinstate an employee who requests or takes time off from work, for a specified time period, at the recommendation of a licensed New Jersey medical professional because the employee has or is likely to have an infectious disease that could infect others in the employee’s workplace. Upon the employee’s return from time off, he or she must be reinstated to the same position held when leave began, with no reduction in seniority, status, employment benefits, pay, or other terms and conditions of...

Redacted Use of Force Report in Which the Subject of the Force Is a Minor Must Be Disclosed, Appellate Division Holds

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Posted in Appellate

On March 27, 2020

A recent Appellate Division decision provides for increased transparency into the activities of law enforcement, ruling that a use of force report (“UFR”) involving a minor should not have been withheld under New Jersey’s Open Public Records Act of 2001 (“OPRA”). A UFR is a one-page report required by a New Jersey Attorney General directive to be filed in all circumstances in which law enforcement personnel use physical, mechanical, or deadly force against a civilian. In January 2018, a Trentonian reporter received a tip that Ewing Township law enforcement used excessive force against a minor. The reporter filed a public records request for any UFRs generated as a result of the encounter. Ewing denied the request, citing OPRA, which provides that “records of law enforcement agencies, pertaining to juveniles charged as delinquent or found to be part of a juvenile-family crisis, shall be strictly safeguarded from public inspection.” The Trentonian sued Ewing and its municipal clerk for release of the UFR, arguing that the UFR should be released in redacted form, removing the identifying information about the minor but leaving the information about the police officer’s use of force. The trial court upheld Ewing’s denial of access, finding that the UFR was a juvenile record protected from disclosure under OPRA. The Trentonian appealed, joined by...

Employers Must Act Fast: Families First Coronavirus Response Act Signed Into Law

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Posted in Employee Benefits / Family Leave

On March 23, 2020

To follow up on our recent blog post, “Workplace Planning for Coronavirus Concerns,” we are summarizing for our clients the Families First Coronavirus Response Act (FFCRA), which President Trump signed into law on March 18, 2020. The House of Representative passed an earlier bill on March 14, but – two days later – revisited and significantly altered the bill on March 16, before sending it to the Senate for consideration. On March 18, the Senate passed the revised House version with no changes, and, that same day, the amended bill was signed into law. The FFCRA takes effect not later than April 2, 2020 (15 days after its enactment) and expires on December 31, 2020. With respect to employers, it contains certain provisions of particular note, including the Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act, discussed below. Emergency Family and Medical Leave Expansion Act The Emergency Family and Medical Leave Expansion Act (“Emergency FMLA” or the “Act”) applies to employers with fewer than 500 employees (“covered employers”). Employees who have been employed by a covered employer for 30 calendar days are eligible for up to 12 weeks of emergency paid family medical leave due to a “qualifying need” arising from “a public health emergency” with respect to COVID-19...

Newly Passed Bills Boost NJ’s Healthcare Industry

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Posted in Healthcare

On March 20, 2020

The New Jersey Legislature worked quickly to send Governor Murphy a package of bills to address various issues related to the coronavirus outbreak. Governor Phil Murphy has already signed legislation (A3860 and A3862) to expand access to telehealth services and to allow professional and occupational licensing boards to expedite licensure of out-of-state professionals. Assembly Bill 3860 relaxes the existing telehealth requirement and allows practitioners to provide and bill for telemedicine. Specifically, for the duration of the coronavirus public health emergency, any New Jersey licensed healthcare practitioner will be authorized to provide and bill for all medically appropriate services using telemedicine and telehealth. A practitioner who is not licensed in New Jersey may provide healthcare services under the bill using telemedicine and telehealth, provided that: (1) the practitioner is licensed in another state; (2) the services provided by that practitioner are consistent with the practitioner’s authorized scope of practice; (3) the services provided are limited to services related to screening for, diagnosing, or treating COVID-19, unless the practitioner has a preexisting provider-patient relationship; and (4) if the encounter does not relate to COVID-19, the practitioner must advise that the practitioner is not authorized to provide services and recommends that the patient initiate a new telehealth encounter with a healthcare practitioner licensed in New Jersey. The bill...

Economic Loss Recovery/Minimization with State and Federal Programs

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Posted in Crisis Communications

On March 17, 2020

As it has successfully done for its clients in prior emergencies (e.g., Superstorm Sandy), a Gibbons interdisciplinary team will work with you to coordinate securing available assistance from state and federal sources. In doing so, Gibbons will also review with you any relevant insurance policies for coverage of any expenses or business income losses that may be sustained/incurred as a result of the COVID-19 national emergency. The Gibbons interdisciplinary team will advise you on the full range of state and federal programs being authorized by law, established, or expanded to assist businesses with losses related to the coronavirus (COVID-19) crisis. Working with clients’ senior management teams, Gibbons will provide strategic advice on the internal measures to be initiated immediately in order to qualify and begin preparing applications for financial assistance from government agencies, including: U.S. Small Business Administration (SBA) The federal government’s $8.3 billion Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020 includes certain provisions that allow the SBA to administer loans connected with this crisis. In addition, the SBA is authorized to offer an additional $50 billion in low-interest loans to address losses caused by the pandemic and the response thereto. A maximum of $2 million can be awarded for economic support to small businesses facing a temporary loss of revenue as a...

New Decision on Asserting the Defend Trade Secrets Act Against Foreign Entities

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Posted in Trade Secrets

On March 16, 2020

A recent federal court decision concluding that a Defend Trade Secrets Act (“DTSA”) claim could go forward against a UK-based defendant should be read both by foreign entities doing business in the United States and by U.S.-based entities that work with foreign affiliates. The case highlights the DTSA’s strong reach over both activity and actors residing outside the United States. In vPersonalize Inc. v. Magnetize Consultants Ltd., Civ. No. 18-CV-01836-BJR, 2020 U.S. Dist. LEXIS 18491 (W.D. Wash. Feb. 3, 2020), a UK-based defendant moved to dismiss a DTSA claim arguing that the Economic Espionage Act’s extraterritorial provision should not apply to private civil actions under the DTSA, should not apply to a foreign entity, and should not apply unless a foreign defendant is alleged to have committed “an act in furtherance” of the violation. The court rejected these arguments and declined to dismiss the DTSA claim. The dispute centers on the relationship between 18 U.S.C. § 1837 entitled, “Applicability to conduct outside the United States” and 18 U.S.C. § 1836, which provides a private right of action under the DTSA. Section 1837 states that “this chapter” (which includes sections 1831-1839 of Title 18) applies to conduct outside the U.S. if the offender is a U.S. citizen or permanent resident alien or an organization organized under...

Gibbons Ranked New Jersey’s Top Lawyer-Lobbying Firm for Twelfth Consecutive Year

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Posted in Federal Lobbying

On March 10, 2020

For the twelfth year in a row, Gibbons P.C. has been ranked the #1 lawyer-lobbying firm in New Jersey, according to the New Jersey Election Law Enforcement Commission (NJ ELEC), which has just released its report on 2019 lobbying expenditures in the state. Gibbons has also ranked sixth in the state among all lobbying firms. “The firm’s growing presence and influence in both the state’s capital and the nation’s capital ultimately stem from loyal clients who have turned to Gibbons for over a decade as their ‘go to’ firm for navigating the governmental process and resolving legislative and regulatory issues that impact their bottom lines,” says Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. Based just steps from the New Jersey State House in Trenton and supported by additional resources from the firm’s Newark and Red Bank offices, the Gibbons Government & Regulatory Affairs Department offers a broad range of services and experience in state legislative affairs, regulatory affairs and departmental actions, administrative law, business incentives, government procurement and contracting, and political and campaign finance compliance. In addition, the firm’s Washington, DC office provides Gibbons lawyer-lobbyists a base from which to more efficiently handle federal regulatory concerns and government relations strategies with on-the-ground guidance wherever client issues may arise. Building on its longstanding...

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