Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Got Those Supplier Ascertaining Allocation Blues?

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Posted in Development/Redevelopment

On March 19, 2013

In L & W Supply Corp. v. Desilva, 429 N.J. Super. 179 (App. Div. 2012), the Appellate Division of the New Jersey Superior Court concluded that, in certain circumstances, a construction lien claimant has an obligation to inquire into the source of funds paid for materials provided for construction projects or face the loss of the right to file a lien. The decision fills in some of the contours of the supplier’s duty set forth by the Supreme Court in Craft v. Stevenson Lumber Yard, Inc., which held that a supplier has a duty to allocate payments based on what he knows or should know about the source of the payments. The new decision has ramifications for suppliers and owners.

An International Standard for E-Discovery?

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Posted in Technology Developments and Issues

On March 18, 2013

The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.

NLRB to Ask Supreme Court if Board Members Were Lawfully Appointed

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Posted in Labor

On March 14, 2013

Earlier this week, the National Labor Relations Board (the “Board” or the “NLRB”) announced it will petition the United States Supreme Court to review Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause.

Limitations on Discovery in Inter Partes Review Proceedings

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Posted in Patent / USPTO

On March 12, 2013

Companies accused of patent infringement have a number of basic alternatives to contemplate: settle the matter; defend the suit; or consider resort to a post grant patent proceeding at the United States Patent and Trademark Office (USPTO). With an eye towards cost, risk and accurate resolution, inter partes review (IPR) proceedings are an attractive alternative to settling or defending.

NJIPLA to Host the 2013 Patent Litigation Seminar

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Posted in Patent

On March 11, 2013

On Wednesday, March 13, the New Jersey Intellectual Property Association will host the 2013 Patent Litigation Seminar at the Woodbridge Hilton in Iselin, NJ. This seminar will cover a range of important patent litigation topics such as: The Divided Court on Divided Infringement: What Comes Next? Willful Infringement: The Federal Circuit is Listening. The Clear Line Blurs – Where is the “Safe Harbor” of 271(e)(1) after Classen v. GSK & Momenta v. Amphastar? Prometheus v. Mayo: Judicial Activism or Reality Check? Observations on the Gene Patenting Debate.

Gibbons Institute of Law, Science & Technology Files Amicus Brief in “Pay-for-Delay” Case Before Supreme Court

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Posted in Pharmaceuticals

On March 8, 2013

We previously reported on the battle over so-called “pay-for-delay” settlements, which puts the pharmaceutical industry versus the Federal Trade Commission (“FTC”) before the Supreme Court, to decide the legality of reverse payments in Hatch-Waxman cases. The case is FTC v. Actavis, Inc., et al. Last week, the Gibbons Institute of Law, Science & Technology, among 16 other amici, filed briefs in support of respondents and the lawfulness of these payments. The other amici included: Antitrust Economists; Bayer AG and Bayer Corp.; Health Economics and Law Professors; Mediation and Negotiation Professionals; Law Professors Gregory Dolin, Kent Bernard, et al.; The American Intellectual Property Law Association; Enavail, LLC; The Generic Pharmaceutical Association]; Intellectual Property Owners Association; Merck & Co., Inc.; National Association of Manufacturers; Pharmaceutical Research and Manufacturers of America (Phrma); New York Intellectual Property Law Association; Shire plc; Washington Legal Foundation; Generic Manufacturers Upsher-Smith Laboratories, Inc.; Teva Pharmaceuticals USA, Inc.; Ranbaxy Pharmaceuticals, Inc.; Mylan Pharmaceuticals Inc.; and Impax Laboratories, Inc.

PhatRat’s Helmet Impact Technology Patent Suit in N.D. Illinois — Considerations For Defendant Riddell

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Posted in Patent

On March 5, 2013

In PhatRat Technology, LLC v. Riddell, PhatRat, the purported exclusive licensee of U.S. Patent Nos. 7,386,401 and 7,693,668 relating to helmet impact reporting technology (“the PhatRat patents”), sued sporting goods manufacturer Riddell in the Northern District of Illinois for infringement of the PhatRat patents. The PhatRat patents issued in June 2008 and April 2010, respectively.

Employee’s Facebook Posting Sinks Her FMLA Discrimination and Retaliation Claims

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Posted in Disability / Family Leave

On March 4, 2013

A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.

Gibbons Director, David Freeman, to Speak at Upcoming Strafford Brownfield Webinar

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 27, 2013

David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, will speak at the upcoming Strafford webinar, “New Developments in Brownfield Redevelopment,” on Tuesday, March 19, 2013. Recently, brownfield development has grown more complex, creating new challenges on top of the pre-existing federal, state and local legal and regulatory requirements and permitting approvals. Mr. Freeman and his fellow panelists will discuss “hot topics” in brownfield redevelopment, including: Bona Fide Purchaser Requirements After the Ashley II Decision; Vapor Intrusion; Brightfields; Changes in Land Use; Financing; Environmental Justice.

Free Speech May Allow Disparagement, but the Trademark Office Does Not: TTAB Affirms Refusal to Register STOP THE ISLAMISATION OF AMERICA

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Posted in Trademarks

On February 26, 2013

On February 7, 2013, the Trademark Trial and Appeal Board affirmed the refusal to register the mark, STOP THE ISLAMISATION OF AMERICA, for “providing information regarding understanding and preventing terrorism” on the basis that the mark “may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” The registration of disparaging marks is explicitly prohibited by Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).

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