Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

SEC Document Destruction Policy Suspended

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Posted in Corporate Information and Records Management Policies

On October 17, 2011

The SEC recently admonished its enforcement staff attorneys to cease any efforts to purge documents from investigative files amidst criticism that the agency wrongfully destroyed thousands of documents related to high profile enforcement matters, including major fraud investigations involving Wall Street banks. The cease order was disclosed in a letter last month from the SEC’s general counsel. The order was precipitated by a whistleblower — long-time SEC enforcement attorney Darcy Flynn — who advised key congressional representatives that the agency had destroyed thousands of investigative files from preliminary enforcement investigations (internally referred to as “MUIs” — or matters under inquiry).

Therasense and Microsoft v. i4i: A View From the Bench

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Posted in Patent

On October 17, 2011

On October 25, 2011, The Gibbons Institute of Law, Science & Technology and the New Jersey Intellectual Property Law Association are proud to present “The Ninth Annual Fall Lecture Series” featuring the Honorable Joel Pisano who will present his observations from the bench on two recent, much-awaited intellectual property law decisions: Therasense v. Becton Dickson and Microsoft v. i4i. In Therasense, the Federal Circuit finally resolved key inequitable conduct issues that had been in a state of vacillation for decades. In Microsoft, Justice Sotomayor presented the majority opinion on the standard of proof required for patent invalidity, a key consideration for all practitioners.

Gibbons to Host 5th Annual E-Discovery Conference – November 3, 2011

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Posted in Technology Developments and Issues

On October 13, 2011

The Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference for corporate counsel and information technology professionals on November 3, 2011, in the firm’s Newark, NJ office. Devoted to the latest developments in electronic discovery and corporate information management, this program will include speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judge John Hughes, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who will present and moderate panels are Task Force Chair, Mark S. Sidoti and Task Force members, Paul E. Asfendis, Melissa DeHonney, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan.

The Value Of Pharmaceutical Method Claims

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Posted in Biotech / International Trade Commission / Patent / Pharmaceuticals

On October 13, 2011

The Federal Circuit’s Myriad Genetics decision, Ass’n for Molecular Pathology v. U.S. Patent and Trademark Office, 99 U.S.P.Q. 2d 1938 (Fed. Cir. 2011), which invalidated most of the method claims in the patents at issue, brings to mind a concern about the value of method claims, particularly to the pharmaceutical industry. The Myriad Genetics patents at issue included two types of method claims relating to human genetics: one involved determining whether a female patient had abnormal BRCA1/2 genes by comparison of BRCA1/2 gene and BRCA 1/2 RNA from the patient’s tumor sample to those from a non-tumor sample; the second was an activity screening method for anticancer drugs that compared the growth of a host cell transformed with a cancer-causing BRCA gene in the presence and absence, respectively, of the test compound.

Litigation Expenses Alone Insufficient to Satisfy “Domestic Industry” Requirement Says ITC and Federal Circuit Affirms

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Posted in International Trade Commission / Patent

On October 10, 2011

Earlier this week the Federal Circuit affirmed an International Trade Commission (“ITC”) decision by refusing to find a patent owner complainant’s litigation expenses satisfied the “domestic industry” requirement of 19 U.S.C § 337. The Court’s decision in John Mezzalingua Assocs. (d/b/a PPC, Inc.) v. International Trade Comm’n, 2010-1536 (Fed. Cir. October 4, 2011) is a blow to ITC complainants, in particular, non-practicing entities intent on relying solely on patent litigation expenses to establish the domestic industry requirement of § 337.

NLRB Postpones Effective Date of Workplace Posting Requirement

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Posted in Labor

On October 7, 2011

As previously reported in the Employment Law Alert, the National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. On October 5, 2011, the Board announced that it is delaying the posting’s effective date from November 14, 2011 until January 31, 2012 “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

Third Circuit Addresses Tension Between Rules 8(a) and 9(b), Concluding That False Claims Act Plaintiffs Were Required to Meet Twombly/Iqbal Standard When Alleging Knowledge

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Posted in General Litigation

On October 4, 2011

The Third Circuit has made it clear that the Twombly/Iqbal pleading standard — which requires plaintiffs to plead enough facts to state a claim “that is plausible on its face” — applies to allegations of states of mind, such as knowledge and intent, notwithstanding Rule 9(b)’s allowance that such matters “may be alleged generally.”

Nicole E. Taplin Joins Gibbons Real Property & Environmental Department

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Posted in Development/Redevelopment / Transactional Real Estate and Leasing

On October 3, 2011

Gibbons is pleased to announce that Nicole E. Taplin, Esq. has joined the firm as an Associate in the Gibbons Real Property & Environmental Department. Nicole concentrates her practice on commercial real estate transactions including acquisitions, dispositions, financings and leasing matters. Nicole received her J.D. from the University of Miami School of Law and her B.A., in economics and philosophy, from Emory University. Admitted to practice in the States of New Jersey and Florida, she represents clients in various aspects of commercial real estate, including the negotiation, documentation and closing of the sale, purchase and development of vacant land, office buildings, apartment buildings and complex mixed-use projects. She also has significant experience representing owners and developers in the structuring, creation and operation of residential, commercial, mixed-use and hotel condominiums, homeowners’ associations and planned communities.

Private-Sector Employers Required to Post NLRB Notice About Employee Rights to Unionize

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Posted in Labor

On September 29, 2011

The National Labor Relations Board (the “Board” or “NLRB”) recently issued a final rule requiring most private-sector employers to post a notice of employee rights under the National Labor Relations Act (the “Act” or “NLRA”) in their workplaces. (Chapter 1 of the Board’s An Outline of Law and Procedure in Representation Cases details which employers fall within the Act’s jurisdiction.) Business and industry associations, including the United States Chamber of Commerce, the National Association of Manufacturers, and the National Federation of Independent Business have filed suits challenging the Board’s authority to issue such a rule. Absent a decision by the courts that, in the words of NLRB Member Brian Hayes — who issued a dissent to the rule (starting at page 54037) — would “rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew,” employers must post the notice by November 14, 2011.

A Recent Clarification on Intervening Rights by the Federal Circuit

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Posted in Biotech / Patent / Pharmaceuticals

On September 28, 2011

The Federal Circuit recently found that intervening rights can apply to a claim that has been narrowed by argument only during a reexamination. In Marine Polymer Technologies, Inc. v. HemCon, the Federal Circuit recently found that narrowing a claim by argument only changes the substantive scope of the claim for purposes of intervening rights. Specifically, a claim term that is changed during reexamination without changing a word in the claim can still substantively narrow the scope of a claim. Therefore, upon reissue of the patent, an infringer would have “… absolute intervening rights with respect to products manufactured before the date of reissue.”

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