Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Gibbons Director Rob Rudnick Elected President of the NJIPLA; “Electronics, Telecom and Software Patent Practice Update” Event Rescheduled for 1/24/13

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Posted in Intellectual Property

On January 14, 2013

Gibbons P.C. is pleased to announce that Robert E. Rudnick, a Director in the firm’s Intellectual Property Department, has been appointed President of the New Jersey Intellectual Property Law Association (NJIPLA). Mr. Rudnick has been an NJIPLA board member for the past four years. The New Jersey Intellectual Property Law Association (NJIPLA) is an organization consisting of more than 300 practicing intellectual property attorneys, patent agents, law students, and interested individuals, primarily from New Jersey, New York, Pennsylvania and Connecticut.

Independent Agents Subject to Litigation Hold

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Posted in Corporate Information and Records Management Policies

On January 11, 2013

In Haskins v. First American Title Insurance Co., the United States District Court for the District of New Jersey expanded the reach of a “litigation hold” to include independent agents of a title insurance company. The Court held that once litigation was reasonably anticipated, First American Title Insurance Company (“First American”) had a duty to instruct its independent insurance agents to preserve all potentially relevant documents and to suspend routine destruction of such documents. The ruling in Haskins gives important e-discovery guidance for many companies, as it clarifies that document preservation rules apply to independent agents in addition to a company’s in-house employees.

The GOLD GLOVE Trademark Infringement Action: Will Rawlings Strike Out For Failure to Adequately Plead Its Case?

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Posted in Trade Dress

On January 10, 2013

On January 7, 2013, Cincinnati Reds second baseman, and three-time Gold Glove Award-winner, Brandon Phillips, moved to dismiss Rawlings Sporting Goods Co. Inc.’s (“Rawlings”) trademark infringement action arising from his use of a glove with gold-colored features. Rawlings is the company that grants baseball players the RAWLINGS GOLD GLOVE AWARD®, which consists of a gold-colored baseball glove attached to a solid base, dating back to 1957. Players who win the award are also given a functional baseball glove that has a metallic gold indicia on it. Last summer, Rawlings sued Phillips and Wilson Sporting Goods Company (“Wilson”) in the Eastern District of Missouri alleging that Wilson’s manufacture of, and Phillips’ use of, a baseball glove with metallic gold-colored webbing, web stitching and lettering infringe Rawlings’ rights in and to its GOLD GLOVE trademarks and the trade dress in its functional glove.

Third Circuit Clarifies that Reasonable Basis Standard Appropriate Quantum of Proof to Apply Crime-Fraud Exception to Attorney-Client Privilege

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Posted in General Litigation

On January 9, 2013

Clarifying the proofs necessary to apply the crime-fraud exception, the Third Circuit Court of Appeals in In re: Grand Jury recently held that a “reasonable basis” standard should be used, explaining that such a standard affords sufficient predictability for attorneys and clients without providing undue protection to those who seek to abuse the attorney-client and the work-product privileges afforded to them.

2013: The IP Law Year Ahead

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Posted in Patent

On December 31, 2012

Like 2012, 2013 promises to be a busy and significant year for intellectual property law. The Supreme Court is slated to decide a number of IP cases, including: Already, LLC d/b/a Yums v. Nike, Inc. (addressing the significance of a limited covenant-not-to-sue on declaratory judgment jurisdiction); Bowman v. Monsanto (determining whether the Federal Circuit erred by not finding patent exhaustion in second generation seeds and created an exception to patent exhaustion for self-replicating technologies); Gunn v. Minton (pertaining to whether federal courts have exclusive “arising under” jurisdiction when legal malpractice claims stem from a patent case); Kirtsaeng v. John Wiley & Sons, Inc. (regarding international copyright exhaustion, i.e., how Section 602(a)(1) and Section 109(a) of the Copyright Act apply to a copy that was legally acquired abroad and then imported into the United States); Federal Trade Comm’n v. Watson Pharm., Inc. (involving whether Hatch-Waxman reverse payment settlement agreements are legal); and most recently, Ass’n for Molecular Pathology v. Myriad Genetics, et al. (regarding the patentability of human genes and whether the petitioners have standing to challenge those patents).

DNJ Rejects Double-Patenting Claim

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Posted in Patent

On December 27, 2012

Last week, in Gilead Sciences, Inc. v. Natco Pharma Ltd., the District of New Jersey ruled on summary judgment that Gilead Sciences did not unlawfully extend its patent protection on oseltamivir (Tamiflu), a neuraminidase inhibitor used to treat the flu, covered by U.S. Patent No. 5,763,483 (“the ‘483 patent”). Natco Pharma sought to invalidate the ‘483 patent for obviousness-type double patenting in its attempt to market a generic version of Tamiflu prior to the patent’s expiration. Natco had alleged, inter alia, that the claims of the ‘483 patent were invalid due to obviousness-type double-patenting over Gilead’s later issued U.S. Patent No. 5,952,375 (“the ‘375 patent”).

New Jersey Legislative Update: The Assembly “Wages” Campaign to Benefit Employees

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Posted in Wage and Hour

On December 20, 2012

On December 17, 2012, the New Jersey Assembly approved two pieces of wage-related legislation that each have the potential to significantly alter New Jersey State Labor Law. Assembly Bill No. 3581 (Wage Withholding) – The bill strengthens the enforcement procedures and disorderly person sanctions against employers who fail to timely pay wages, compensation or benefits to their employees and makes it easier for employees to report such employer violations.

Supreme Court to Examine Pay-For-Delay Settlements

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Posted in Patent

On December 17, 2012

The battle between the pharmaceutical industry and the Federal Trade Commission (“FTC”) over so-called “pay-for-delay” settlements will finally be examined and decided by the Supreme Court. Last Friday, the Court granted certiorari in Federal Trade Commission v. Watson Pharmaceuticals, Inc., one of two cases with filed certiorari petitions involving Hatch Waxman reverse payment settlements. The petition in the other case, In re K-Dur Antitrust Litigation, is still pending.

New Jersey Superior Court Finds the Recently-Enacted New Jersey Trade Secrets Act Does Not Preempt Common Law Claims

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Posted in Trade Secrets

On December 14, 2012

In an opinion dated December 7, 2012, a New Jersey Superior Court judge in Bergen County considered an issue of first impression relating to the recently-enacted New Jersey Trade Secrets Act (“NJTSA”). In SCS Healthcare Marketing LLC v. Allergan USA Inc. et al., defendant Allergan sought to dismiss numerous common law claims brought by plaintiff SCS, arguing that SCS’s statutory claim for misappropriation of trade secrets under the NJTSA preempted its common law claims. SCS filed suit alleging that Allergan misappropriated marketing contractors’ trade secrets relating to a proprietary technology portal. Specifically, SCS alleges that Allergan revealed its proprietary and confidential information to a rival health care marketing company, thereby violating state laws relating to unfair competition, disclosure and trade secrets.

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