Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Intellectual Property and the U.S. Economy

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Posted in Patent / Trademarks

On April 26, 2012

The U.S. Commerce Department recently released a comprehensive report, entitled “Intellectual Property and the U.S. Economy: Industries in Focus,” which identified 75 industries as IP intensive. The Report found that IP at such industries supported at least 40 million jobs in 2011. As of 2010, IP comprised more than $5 trillion dollars, or 34.8 percent of, U.S. gross domestic product (GDP) and accounted for 27.1 million American jobs. Between 2010 and 2011, the U.S. economic recovery resulted in a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.

Failure to Strictly Comply With the Express Terms of the Notice Provisions in a Claims-Made Insurance Policy Will Forfeit Available Coverage

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Posted in Insurance

On April 26, 2012

The Third Circuit’s recent decision in Atlantic Health System Inc. v. National Union Fire Insurance Company of Pittsburgh confirms the importance of strictly following the notice requirements of a claims-made policy and the relevance of the parties’ course of prior and subsequent performance on the ultimate interpretation of allegedly ambiguous policy terms and conditions. In this case, the failure to strictly comply with the notice requirements resulted in AHS retaining liability for more than $2 million of defense costs and settlement payments.

Patent Litigators: Be Careful What You Plead

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Posted in Patent

On April 25, 2012

Last month, in a sua sponte Memorandum Order in Technology Licensing Corp. v. Pelco, Inc., 11-cv-8544 (N.D. Ill. Mar. 5, 2012), Senior U.S. District Court Judge Milton I. Shadur recently took defendant to task for its answer and counterclaim. In paragraphs 3, 5 and 6 of its answer defendant pled the boilerplate language that it was without knowledge or information sufficient to form a belief about the truth of the allegations of paragraph [ ] and therefore denies those allegations.” Judge Shadur rebuked defendant for this latter clause, stating it was “oxymoronic” that a party could assert in good faith that it did not have enough information to form a belief about an allegation, and then proceed to deny it.

Surf at Your Own Risk: For the First Time in New Jersey, Judge Holds Juror In Contempt for Internet Use During Deliberations

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Posted in E-Discovery: Legal Decisions and Court Rules

On April 24, 2012

Last month, the Hon. Peter E. Doyne, A.J.S.C. found jury foreperson Daniel M. Kaminsky to be in criminal contempt pursuant to R. 1:10-2 for violating several orders of the trial judge that prohibited jurors from engaging in any independent research during trial as set forth in In re Kaminsky, (N.J. Sup. Ct., Bergen County, Mar. 12, 2012). After a mistrial was declared in the underlying criminal drug case and two fellow jurors reported Kaminsky’s Internet use, the Court found beyond a reasonable doubt, in the context of an Order to Show Cause hearing and related in camera proceedings, that (1) Kaminsky conducted independent research; (2) the act was contemptuous; and (3) the conduct was willful and contumacious, “with a complete disregard of the court’s authority and instructions.” Although the foreperson was subject to a maximum punishment of six months in prison, a $1,000 fine or both, he was only fined $500.

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel

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Posted in International Trade Commission / Patent

On April 23, 2012

On April 26, the Gibbons Institute of Law, Science & Technology, Seton Hall University School of Law, and the New Jersey Intellectual Property Law Association will present, “Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel.” Throughout the afternoon, two panels comprised of various government officials and in-house counsel will come together to share their views on patent litigation and how it is approached in their specific practice areas.

U.S. v. Aleynikov: Second Circuit Reverses SDNY Due to Statutory Interpretation Errors

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Posted in Trade Secrets

On April 20, 2012

Following a jury trial in the United States District Court for the Southern District of New York, Sergey Aleynikov was convicted of stealing and transferring proprietary computer source code used in his former employer’s high-frequency trading system, in violation of the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. § 1832, and the National Stolen Property Act (“NSPA”), 18 U.S.C. § 2314. On appeal, Aleynikov argued that his conduct did not constitute an offense under either statute because 1) the source code was not a “stolen” “good” within the meaning of the NSPA and 2) the source code was not “related to or included in a product that is produced for or placed in interstate or foreign commerce” within the meaning of the EEA. The United States Court of Appeals for the Second Circuit agreed with Aleynikov and reversed the District Court’s ruling.

Supreme Court Affirms Kappos v. Hyatt, Paving the Way for New Evidence and Expansive Review of Patent Applications

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Posted in Patent / USPTO

On April 19, 2012

Yesterday, in a unanimous decision, Kappos v. Hyatt, the Supreme Court affirmed a ruling of the Court of Appeals for the Federal Circuit holding that in a civil action under 35 U.S.C. § 145, a patent applicant has the right to present new evidence to the District Court regardless of whether that evidence previously was or could have been presented during the proceedings before the PTO. Further, when such new evidence is presented, the District Court must review any related factual conclusions affected by the new evidence de novo, without giving deference to any prior decision or finding of the PTO.

Cause for Concern? NJDEP to Score Contaminated Sites Under the Remedial Priority Scoring System

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Posted in Environmental and Green Issues

On April 18, 2012

The New Jersey Department of Environmental Protection (“NJDEP”) will soon release scores for contaminated properties pursuant to the Remedial Priority Scoring (“RPS”) system. The RPS system was mandated by the Spill Compensation and Control Act (N.J.S.A. 58:10-23.16) as amended by the Site Remediation Reform Act (“SRRA”). Under the statute, the factors that NJDEP may consider in ranking the sites include: the level of risk to the public health, safety, or the environment; the length of time the site has been undergoing remediation; the economic impact of the contaminated site on the municipality and on surrounding property; and any other factors deemed relevant by the NJDEP.

Robert E. Rudnick to Speak at Joint Patent Practice Seminar on April 17

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Posted in Patent

On April 16, 2012

Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department, will be speaking at the Annual Joint Patent Practice Seminar on April 17, 2012, at the New York Marriott Marquis on the Federal Circuit’s decision in General Protecht Group, Inc. v. Leviton Mfg. Co., Inc. The case involved a forum selection clause in a patent settlement agreement.

Gibbons Intellectual Property Department Chair Listed in New Jersey Super Lawyers

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Posted in Firm News / Intellectual Property

On April 16, 2012

David E. De Lorenzi, Chair of the firm’s Intellectual Property Department, was listed in New Jersey Super Lawyers as a leader in his field. Overall, 69 Gibbons attorneys were listed in New Jersey Super Lawyers and New Jersey Super Lawyers Rising Stars. The Super Lawyers selection process comprises hundreds of thousands of statewide or regional surveys supplemented by a comprehensive examination of each nominee’s background and experience, focusing on such criteria as verdicts and settlements; transactions; representative clients; honors and awards; educational background; and other outstanding achievements. Only 5 percent of the total lawyers in the state are selected for inclusion in Super Lawyers. Those receiving the highest point totals in the nomination process are included in the statewide top 100 attorney and top 50 women attorney lists.

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