Gibbons Law Alert

Gibbons Law Alert Blog

The ITC and FTC Take Actions to Address the Toll of NPE Litigation

Posted in International Trade Commission / Patent

On August 26, 2014

We have previously posted on proposed federal and state legislation aimed at addressing the toll of “patent troll” litigation by non-practicing entities (“NPEs”) on the U.S. economy. Additionally, a recent Federal Circuit ruling relaxing the standard for finding “an exceptional case” to justify attorneys’ fees in patent infringement actions also appears to have been motivated by need to address NPE litigation. Now the United States trade commissions want to enter the fray. The U.S. International Trade Commission (ITC), through its recent decision In the matter of Certain Optical Disc Drives, Components Thereof, and Products Containing the Same, limited the ability of licensing entities, whose patent-related activities are purely revenue driven, to bring actions under 19 U.S.C. § 1337(a)(3). Additionally, the U.S. Federal Trade Commission (FTC) has recently been given approval to conduct a study on NPEs to examine how they operate and to what extent they affect competition and innovation.

Search Error! Federal Circuit Invalidates Vringo Search Engine Patents

by Estelle J. Tsevdos, Ph.D.

Posted in Patent

On August 25, 2014

On August 15, the Federal Circuit, in a nonprecedential opinion, reversed a lower court ruling, denying I/P Engine, Inc., a subsidiary of Vringo, Inc., a $30 million patent infringement jury verdict by invalidating two of its internet search engine patents. I/P Engine brought suit against AOL Inc., Google, Inc., and others in the Eastern District of Virginia for allegedly infringing its patents, U.S. Patent Nos. 6,314,420 and 6,775,664, which relate to systems and methods for filtering internet search results, using both content-based and collaborative filtering. In November 2012, the district court found I/P Engine’s patents valid and that defendants infringed those patents. The jury awarded I/P Engine over $30 million in damages and a 3.5% running royalty.

Changes to FLSA Overtime Exemption for Domestic Service Workers are Coming

by Gibbons P.C.

Posted in Labor / Wage and Hour

On August 22, 2014

Effective January 1, 2015, the Fair Labor Standards Act overtime exemption for “domestic service workers” will change, having significant ramifications for employers of these employees. Until this change, domestic service workers generally have been exempt from overtime compensation, which means they need not be paid at the rate of time and a half for hours worked in excess of 40 per workweek. The U.S. Department of Labor has issued a Fact Sheet to summarize the changes.

How to Meet the Inequitable Conduct Standard after Therasense

by Thomas J. Bean

Posted in Patent

On August 21, 2014

The Court of Appeals for the Federal Circuit recently clarified the standard necessary for holding a patent unenforceable for inequitable conduct relating to intentionally withheld references and misrepresentations of material information. Apotex Inc. v. UCB, Inc., No. 2013-1674 (Aug. 15, 2014). Given the high standard set forth in the Federal Circuit’s prior opinion in Therasense, this decision finding inequitable conduct provides a roadmap for inventors, prosecutors, and litigants alike with regard to potential claims of inequitable conduct.

Sixth Circuit Becomes Latest Federal Appeals Court to Rule That CERCLA’s Contribution and Cost Recovery Provisions Provide Mutually Exclusive Remedies to PRPs

by Gibbons P.C.

Posted in Environmental and Green Issues

On August 20, 2014

The United States Court of Appeals for the Sixth Circuit became the latest federal court of appeals to weigh in on the dichotomous nature of Superfund claims made under Sections 107 and 113 in the wake of the United States Supreme Court’s decision in United States v. Atlantic Research Corp., 551 U.S. 128 (2007). In Hobart Corp. v. Waste Management of Ohio, Inc., the Sixth Circuit held that Sections 107(a)(4)(B) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, “provide mutually exclusive remedies,” an issue left open in Atlantic Research.

New Jersey Supreme Court Finds Neither Plan Approval Nor Complete Remediation are Prerequisites to a Spill Act Contribution Action

by Gibbons P.C.

Posted in Environmental and Green Issues

On August 18, 2014

In Magic Petroleum Corporation v. Exxon Mobil Corporation, the New Jersey Supreme Court held that a party funding remediation of a contaminated site may bring a contribution claim against other potentially responsible parties (“PRPs”) before completing remediation and prior to receiving the New Jersey Department of Environmental Protection’s (“DEP’s”) written approval of the remediation plan. In so doing, the Court has provided certainty, to a degree, to the environmental remediation process in New Jersey.

Employers Must Make Sure They Have Evidence of Employee’s Receipt of FMLA Notices

by Richard S. Zackin

Posted in Family Leave

On August 14, 2014

In a recent case decided by the United States Court of Appeals for the Third Circuit, Lupyan v. Corinthian Colleges Inc., an employee who did not return to work until after her 12 weeks of leave under the Family and Medical Leave Act (FMLA) had expired was able to avoid summary judgment against her because her employer was unable to come up with any hard evidence that she had actually received the FMLA notices mailed to her while on leave. The decision is a clear warning to employers that they run a real risk in FMLA litigation that notices sent by ordinary mail to an employee on leave may not carry the day.

The Section 1447(d) Bar – State of Vermont v. MPHJ Technology Investments, LLC

by Gibbons P.C.

Posted in Patent

On August 14, 2014

In a case of procedural jockeying, the United States Court of Appeals for the Federal Circuit in State of Vermont v. MPHJ Technology Investments, LLC, held that a “district court’s remand order dominate[d] any proceedings on th[e] appeal” and because a remand under 28 U.S.C. 1447(d) “is not reviewable on appeal or otherwise[,]” the Federal Circuit lacked appellate jurisdiction.

NJ Adopts “Ban the Box” Prohibiting Inquiries into Criminal History During Initial Employment Application Process

by Gibbons P.C.

Posted in Policies and Handbooks

On August 12, 2014

On August 11, 2014, New Jersey Governor Chris Christie signed into law “The Opportunity to Compete Act” – more commonly referred to as “ban the box” – which prohibits employers from inquiring into a job applicant’s criminal record during the initial employment application process. The law will take effect on January 1, 2015 and preempts any local laws (such as Newark’s 2012 ordinance) addressing the same subject.

Be Careful Identifying Your Licensed Patents and Products

by Christopher H. Strate and Samuel H. Megerditchian

Posted in Licensing

On August 12, 2014

On Friday, the Federal Circuit issued an opinion in Wi-LAN USA, Inc. v. Ericsson, Inc., which highlights the importance of using care when granting rights to or under patents. The interesting facts in this case resulted in two contradictory opinions from two district courts regarding the scope of an agreement pertaining to rights under certain patents. These opinions illustrate the potential dangers of unintended consequences that may arise from imprecise drafting in patent agreements.