Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Russell Bershad to Speak at Upcoming RealShare New Jersey Conference

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Posted in Transactional Real Estate and Leasing

On April 4, 2013

Russell B. Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will serve as a panelist at the upcoming RealShare New Jersey Conference on Wednesday, April 10, 2013, at the Newark Club in Newark, NJ. Mr. Bershad’s panel, “The Needs of the Modern Office User,” will discuss both the design and demand for space, as companies constrict their physical space and telecommuting becomes more prevalent. The panelists will also discuss their approach to doing business in today’s challenging marketplace, including site and office selection in urban versus suburban regions, owning vs. leasing, the impact of the economy and job market on decisions, and the overall burdens and benefits of doing business in New Jersey.

New Law Places Stricter Limits on Shareholder Derivative Suits

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Posted in General Litigation

On April 3, 2013

On April 2, 2013, Governor Christie signed A-3123, which revises New Jersey’s law concerning shareholder derivative proceedings under N.J.S.A. § 14A:3-6. According to the New Jersey Corporate and Business Law Study Commission, the purpose of this new law is to preclude derivative lawsuits that impose excessive and unnecessary costs on New Jersey corporations. The law applies to both derivative proceedings brought on behalf of a single shareholder and shareholder class actions against a corporation or its directors that arise out of a breach of duty imposed by New Jersey statutory or common law.

Gibbons Business & Commercial Litigation Department Named the New Jersey Law Journal’s Commercial Litigation Department of the Year

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Posted in General Litigation

On April 2, 2013

The Gibbons Business & Commercial Litigation Department has been named the Commercial Litigation Department of the Year by the New Jersey Law Journal. This marks the publication’s first list of leading litigation departments, which evaluated law firms with a New Jersey presence and significant litigation results in 2012.

IPXI Clears U.S. Department of Justice Hurdle … Will It Launch?

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Posted in Patent

On March 28, 2013

We have reported extensively on the pending Intellectual Property Exchange International (“IPXI”), the world’s first proposed exchange for licensing intellectual property. In an email blast sent Wednesday morning, Ian McClure, the Director at IPXI, indicated that the Department of Justice (“DOJ”) concluded an eight-month business review of IPXI and issued a Business Review Letter (“BRL”) that highlighted IPXI’s benefits and efficiencies. Importantly, according to IPXI, the DoJ declined to take any enforcement position against the IPXI at this time, as it did not know if IPXI’s activities would raise competitive concerns after operating. The BRL noted several benefits to the IPXI model, including increased licensing efficiency, sublicense transferability and greater transparency.

Kirtsaeng v. John Wiley & Sons, Inc.: U.S. Supreme Court Reverses Lower Courts and Determines That International Copyright Exhaustion is Now the Rule

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Posted in Copyright

On March 27, 2013

Online resellers, used book stores, art galleries, and museums, among others, apparently can now breathe a sigh of relief and continue to display and resell goods originally sold or manufactured outside of the U.S., without the specter of a potential copyright infringement action looming on the horizon. Last week, in Kirtsaeng v. John Wiley & Sons, Inc., the U.S. Supreme Court, on a 6-3 vote, held that the “first sale” doctrine applies to copies of a copyright-protected work lawfully made abroad. Under copyright law, the “first sale” doctrine states that “the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” 17 U.S.C. § 109(a).

Copyrighted Designs Afford Basis for Federal Court Claims for Infringement by Architects Seeking Payment for Their Design Drawings

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Posted in Construction / Construction Litigation

On March 27, 2013

Disputes can arise when a design professional prepares plans for an owner and the owner then uses those plans without compensating the architect. In H2L2 Architects/Planners, LLC v. Tower Investments, Inc., a case from the Eastern District of Pennsylvania, the court considered the pleading requirements for unpaid architects to assert claims for payment against owners/developers for architectural design and drawings under federal law.

New York City Prohibits Discrimination Against the Unemployed

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Posted in Discrimination

On March 25, 2013

New York City has expanded the scope of its Human Rights Law (“NYCHRL”) to prohibit job discrimination based upon a job applicant’s status as unemployed. The amendments to the NYCHRL define the term “unemployed” to mean someone “not having a job, being available for work, and seeking employment.” The amendments, which will become effective on June 11, 2013, are groundbreaking in that they make New York City the first jurisdiction in the United States to provide a private right of action for discrimination based on an applicant’s “unemployed” status. If successful in pursuing such claims, denied job applicants may recover compensatory and punitive damages, as well as their attorneys’ fees and costs. In light of this, New York City employers should immediately begin preparing for these coming changes by reviewing their hiring practices, as well as their job advertisements and postings.

The Patent Expert Pivot

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Posted in Patent

On March 25, 2013

Parties to patent infringement actions heavily rely on experts to explain their “case.” The finder of fact, whether judge or jury, often views them as detached guides who truly understand the often esoteric subject technology, or other issues, given the expert’s credentials. Patent issues such as infringement, claim construction, validity, enforceability and damages, which are critical to a case, may rise or fall on these experts. Accordingly, and despite their “expert” status, there is no shortage of considerations surrounding them.

Federal Circuit Limits Discovery in Inter Partes Re-examination Proceedings

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Posted in Patent

On March 22, 2013

We reported last week on the discovery limitations under United States Patent and Trademark Office (“PTO”) guidelines as they pertain to inter partes review (“IPR”) proceedings. On Wednesday, in Abbott Labs. v. Cordis Corp., the Federal Circuit ruled that discovery is not allowed in inter partes re-examinations. The case stemmed from Abbott’s motion to quash two subpoenas duces tecum issued by Cordis which sought documents for use in a pending IPR re-examination. Id. at 2. In the underlying action, Cordis sued Abbott in the District Court for the District of New Jersey for infringement of two of its patents directed to drug-eluting stents. Id. at 3. The PTO agreed to inter partes re-examination of the patents and by office action, the examiners found both patents obvious. Id. at 3-4.

Treble Damages for Willful Patent Infringement Become Elusive

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Posted in Patent

On March 20, 2013

Accused patent infringers continue to breath easier as an ever more challenging path to treble damages persists. Recent decisions from the Court of Appeals for the Federal Circuit placed the objective prong of the In re Seagate test toward establishing willful infringement squarely with a judge. The impact on appeal has taken effect. Under 35 U.S.C. § 271(a), direct patent infringement is a “strict liability” offense. In certain cases, 35 U.S.C. § 284 may provide “up to three times” actual damages. A determination that the accused infringer willfully infringed is used to determine whether enhanced damages are warranted. Finisar Corp. v. DirecTV Group, Inc. 523 F.3d 1323, 1339 (Fed. Cir. 2008).

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