Gibbons Law Alert

Gibbons Law Alert Blog

USPTO Adopts Final Rules of Practice for Recalculation of PTA

Posted in Patent

On June 12, 2014

On May 15, 2014, The United States Patent and Trademark Office (USPTO) published a Federal Register notice regarding the final changes to the rules of practice that relate to the patent term adjustment (PTA) provisions of section 1(h) of the Leahy-Smith America Invents Act (AIA) Technical Corrections Act. The previously published information was in guideline form only and did not encompass issues addressed by the presently provided rules.

Juridical Link Doctrine Does Not Relax Article III Standing Requirements in Class Actions

by Gibbons P.C.

Posted in Class Action Defense

On June 12, 2014

In 6803 Boulevard East, LLC v. DIRECTV, LLC, the District of New Jersey rejected the notion that “the juridical link doctrine” provided a limited exception to Article III standing requirements in a class action against several related defendants and granted DirecTech’s motion for summary judgment because the named plaintiffs were not injured by DirecTech’s actions.

AIA Post-Issuance Proceedings – Live Testimony Finds Its Way Into Oral Argument for Inter Partes Review

by Thomas J. Bean

Posted in Patent

On June 11, 2014

In order to achieve the statutory requirement of rendering a final determination no later than one year following the institution of an Inter Partes Review (IPR), the Trial Practice Guidelines set forth by the U.S. Patent & Trademark Office “lay out a framework for conducting the proceedings aimed at streamlining and converging the issues for proceeding.” For example, the guidelines for oral arguments prohibit the submission of new evidence and arguments by the parties, and suggest that live testimony is generally unnecessary. The parties may however move for live testimony in “appropriate situations.”

ABA Says that Attorneys May Investigate Jurors’ Social Media Presence, Even if Automatic Notifications are Generated

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 11, 2014

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently weighed in on the ethical parameters of attorneys’ investigation of jurors’ social media presence. In ABA Formal Opinion 466, the Committee concluded that an attorney may review a juror’s social media presence; an attorney may undertake that review even if the social media website issues a notice to the juror that the attorney viewed his social media profile; and an attorney may not request private access to a juror’s social media profile.

Nautilus, Inc. v. Biosig Instruments, Inc. – Definiteness Now Requires Reasonable Certainty

by Gibbons P.C.

Posted in Patent

On June 10, 2014

On June 2, the Supreme Court in Nautilus, Inc. v. Biosig Instruments, Inc., No. 13-369, __ U.S. __ (June 2, 2014) (Ginsburg, J.) ruled that the prior tests for indefiniteness, insoluble ambiguity and amenable to construction, are no longer appropriate. The new test for definiteness requires reasonable certainty. Insoluble ambiguity has been the high hurdle defendants have attempted to jump for more than twelve years since the Federal Circuit introduced that phrase in Exxon Research and Engineering v. United States, 265 F. 3d 1371, 1375 (Fed. Cir. 2001). Combined with the requirement for clear and convincing evidence to invalidate a claim, indefiniteness was not often a successful defense to patent infringement allegations.

Third Circuit Finds Proposed Dual Service as Class Counsel and Class Representative Does Not Preclude CAFA Removal

by Gibbons P.C.

Posted in Class Action Defense

On June 9, 2014

The Third Circuit recently considered whether the District Court properly denied a motion for remand brought by a pro se plaintiff, an attorney also seeking to serve as class counsel, who argued that since his “dual service” precluded class certification in federal court, the defendant could not aggregate the proposed class’s claims to satisfy the $5 million amount in controversy under the Class Action Fairness Act (“CAFA”). In affirming the denial of the plaintiff’s remand motion, the Third Circuit built upon recent Supreme Court precedent confirming that a plaintiff cannot stipulate to less than $5 million in damages to avoid the federal court’s subject matter jurisdiction under CAFA.

NY Court of Appeals Gives Guidance on What Whistleblowers Need to Allege Under New York’s Whistleblower Law to Maintain Claim

by Gibbons P.C.

Posted in Whistleblower

On June 5, 2014

On May 13, 2014, in Webb-Weber v. Community Action for Human Services, Inc., the New York Court of Appeals unanimously held that an employee need not identify the specific “law, rule or regulation” allegedly violated by his or her employer in a complaint for whistleblower retaliation under New York Labor Law Section 740 (2) in order to maintain a viable cause of action.

Is This Thing On? NJ Appellate Division Bars Employees’ Attempt to Use Secret Audio Recording In Support of CEPA and LAD Claims

by Gibbons P.C.

Posted in Whistleblower

On June 4, 2014

Employees sometimes engage in questionable conduct to gather evidence to strengthen their claims of employment discrimination and retaliation. In Quinlan v. Curtiss-Wright Corporation and State of New Jersey v. Saavedra, employees misappropriated confidential employer documents to support their claims. More recently, in Stark v. South Jersey Transportation Authority, two employees surreptitiously voice-recorded a workplace conversation to support their claims under the New Jersey Law Against Discrimination (“LAD”). The Appellate Division, however, pressed the “STOP” button on the Stark plaintiffs’ efforts to utilize that recording as evidence, noting that recording violated the New Jersey Wiretap Act and failed to satisfy the seven-part balancing test established by the New Jersey Supreme Court in Quinlan for determining whether that violation nevertheless constituted “protected activity” under the New Jersey Law Against Discrimination (“LAD”).

Appellate Division Says Adverse Inference Inappropriate Where Records Were Ultimately Produced

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 2, 2014

In a recent decision, the New Jersey Appellate Division held that a trial court’s adverse inference instruction for e-discovery misconduct was an unreasonably harsh penalty where the electronically stored information (ESI) was eventually produced. The Appellate Division’s opinion in Liberty Mutual Insurance Co. v. Viking Industrial Security, Inc. illustrates and reaffirms the principle that discovery sanctions must be just and reasonable, and proportional to the prejudice caused to an adversary, regardless of bad faith or willfulness of the misconduct.

Gone, but Not Forgotten: How the European Union Court of Justice Misremembered the Fundamental Purpose of Search Engines

by Gibbons P.C.

Posted in Privacy and Data Security

On May 30, 2014

The European Union Court of Justice (ECJ) ruled on May 13, 2014 that Google must purge links to personal data appearing on web pages published by third parties if the person who is the subject of that data objects that it is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which [the data] were processed and in light of the time that has elapsed.” Google and other industry voices have already identified numerous concerns with the Court’s ruling, notably the unknown costs and potential disputes over relevancy and staleness of data that could arise as search engines seek to comply with the ruling.