Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Negative Claim Leads to “Udder” Failure

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Posted in Patent

On July 30, 2013

Judge Rich gave us the adage, “the name of the game is the claim.” Given the number of cases issued by the Federal Circuit on written description, perhaps the adage should be revised as “the name of the game is the claim – supported by the specification.” In In Re Bimeda Research & Development Ltd., the Federal Circuit issued another decision requiring the entire scope of the claims to be supported by the disclosure. While this is nothing new in patent law, the claim at issue is a negative claim that expressly excluded an element. The original claim was directed to a prophylactic method to treat infections in cow mammary glands by providing a physical barrier to the teat canal.

Pennsylvania Superior Court Defines Standard for Determining Insurer’s Control of Litigation and Settlement When Seeking to Defend Insured Subject to a Reservation of Rights

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Posted in Insurance

On July 24, 2013

The Pennsylvania Superior Court recently set forth a new standard for determining when an insured must seek the insurer’s consent to settle underlying third-party claims where the insurer had previously offered to defend the insured under a reservation of its right to decline coverage for any adverse judgment that might be entered against the insured later.

So, Too, a DJ Plaintiff May Be Entitled to Attorney Fees in Exceptional Cases

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Posted in Patent

On July 17, 2013

According to a recent Central District of California decision, a declaratory judgment plaintiff may be entitled to attorney fees if it prevails on non-infringement in a patent case. Homeland Housewares, LLC v. Sorensen Research and Dev. Trust, No. 11-03720, slip op. at 7-8 (C.D.C.A. Jun. 27, 2013). In Homeland, plaintiff filed a declaratory judgment of non-infringement, invalidity and unenforceability in response to a demand letter (and correspondence thereafter) asserting patent infringement. The asserted patent was directed to plastic injection molding, and the accused products were plastic cups. The Court granted plaintiff’s summary judgment of no infringement, but denied plaintiff’s motion for invalidity and in fact, granted defendant’s cross-motion for summary judgment of validity. Plaintiff then moved for attorneys’ fees under 35 U.S.C. § 285, which permits awards in “exceptional cases” to the “prevailing party,” but, who was the prevailing party?

Somebody’s Watching You — New York Court of Appeals Says State Can Place GPS Device on Employee’s Car, But Can Only Collect Data During Work Hours

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 17, 2013

In its recent 4-3 decision in Cunningham v. New York State Department of Labor, the New York Court of Appeals added to the growing body of case law addressing the constitutional implications of global positioning system (GPS) technology. In Cunningham, the Court found that the Department of Labor’s attaching of a GPS device to an employee’s personal car that was used for work purposes fell within the “workplace exception” to the warrant requirement, however, the search as conducted was unreasonable because the car’s location was tracked in the evenings, on weekends, and while the employee was on vacation. Interestingly, the Court suppressed all of the evidence collected by the GPS device, not just the data collected during non-work hours, citing the “extraordinary capacity” of GPS devices to permit “constant, relentless tracking of anything.”

NFL Scores Big Win Against Websites Offering Counterfeit Merchandise

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Posted in Trademarks

On July 12, 2013

On June 28th, U.S. District Judge Lorna G. Schofield of the Southern District of New York entered a default judgment in favor of the National Football League® (“NFL®”) against operators of more than 1,997 websites utilizing 1,223 infringing domain names, all of which were offering counterfeit NFL merchandise. In doing so, the District Court awarded the NFL a $273 million judgment against the website operators and injunctive relief.

“100% Pure and Natural” Claims Not Preempted in Putative Class Action Against Tropicana Orange Juice

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Posted in Class Action Defense

On July 11, 2013

In Lynch v. Tropicana Products, Inc., a Federal District Court in New Jersey refused to toss a putative class action against Tropicana alleging that its “100% pure and natural” claim, and its advertisement showing an orange being “pierced” by a straw ― inferring that the consumer is essentially drinking right from the orange ― is false and misleading.

Court Denies Direct Access to Computer, Phones, and Email Account Absent a Finding of Improper Conduct or Non-Compliance With Discovery Rules

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 9, 2013

In a recent decision in Carolina Bedding Direct, LLC v. Downen, United States Magistrate Judge Monte C. Richardson shed light on the limitations placed on discovery by Federal Rule of Civil Procedure 26 and the circumstances under which a requesting party will be denied wholesale access to a responding party’s computer, cell phone, and email account. The decision also reinforces that courts are unlikely to question a responding party’s certification of compliance with discovery requests absent a real showing of improper conduct, even if it is shown that the responding party failed to produce its own email and text messages that were later produced by another party.

Delaware Corporations May Enact Bylaws Requiring Litigation to be Venued in Delaware Courts

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Posted in General Litigation

On July 8, 2013

On June 25, 2013, the Delaware Court of Chancery paved the way for the boards of directors of Delaware corporations to amend their bylaws to include forum selection clauses requiring any litigation related to the corporation’s internal affairs to be conducted in Delaware courts. Adopting such provisions is intended to avoid the inefficiency and cost of Delaware corporations having to defend against the same litigation in multiple forums (e.g., both in Delaware and the state of the corporation’s principal place of business, as well as in state and federal court).

Ghost Rider Copyright Case Going to Trial

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Posted in Copyright

On July 3, 2013

Following a status conference held on June 27, it appears that the copyright case relating to ownership rights in the comic book super hero “Ghost Rider” will be going to trial in the Southern District of New York in November. We recently reported that the Second Circuit reversed the lower court’s dismissal of this lawsuit, Gary Friedrich Enters., LLC v. Marvel Enters., Inc., finding a genuine issue of material fact existed as to what rights, if any, Friedrich retained in the character following a 1978 contract he entered with Marvel. We reported additional background on the case here.

Pleading Setback Stalls N.J. Moldy Washing Machine Class Action, Which Will Face Uncertainty in Light of Comcast

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Posted in Class Action Defense

On July 2, 2013

A New Jersey moldy washing machine class action suffered a big pleading setback after the District of New Jersey held that the lengthy complaint still contained insufficient detail to place the defendant on notice of the precise misconduct alleged. But even if plaintiffs replead their case, their ultimate goal of class certification may be stymied in light of the Supreme Court’s decision in Comcast Corp. v. Behrend, and its collateral effect upon other defective washing machine putative class actions.

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