Gibbons Law Alert

Gibbons Law Alert Blog

New Patent Case Scheduling Order Seeks to Achieve Efficiencies in Delaware

by Charles H. Chevalier and Christopher Viceconte

Posted in Patent

On March 26, 2014

This week, United States District Judge Sue L. Robinson issued a new Patent Case Scheduling Order dictating how patent cases will proceed in Her Honor’s Court. The District of Delaware is second only to the Eastern District of Texas in the number of patent cases filed; both of which have nearly three times the number of patent cases as the third busiest district, the Central District of California. In order to help streamline the hundreds of patent cases assigned to Her Honor, Judge Robinson issued a new Patent Case Scheduling Order, requiring the identification of key issues earlier in the case, which should improve overall case efficiencies.

New Authority for Class Action Defendants Allowing Merits-First Bifurcated Discovery

by Gibbons P.C.

Posted in Class Action Defense

On March 25, 2014

The cost and burden of class action discovery often puts undue pressure on defendants to settle cases that have little or no merit. To relieve this pressure, courts sometimes permit bifurcated discovery, with the parties first addressing class certification issues and later, if warranted, merits issues. Recently, in Physicians Healthsource, Inc. v. Janssen Pharms., Inc., the District of New Jersey ordered bifurcated discovery but reversed the normal mechanics, limiting the first phase to merits issues before permitting any class discovery. The result is the same, though: potentially enormous time- and cost-savings. This strategy may be worth considering in cases where there are potentially dispositive merits issues.

Forgive Me Not: Privacy Advocates Challenge Facebook’s WhatsApp Deal

by Gibbons P.C.

Posted in Privacy and Data Security

On March 21, 2014

In their latest effort to curb potential consumer privacy abuses, the Electronic Privacy Information Center and the Center for Digital Democracy are challenging the potential misuse of data about WhatsApp users’ data as a result of WhatsApp’s acquisition by Facebook for $16 billion. WhatsApp is a popular App that allows users to send messages without the regular cost associated with SMS text messaging. According to the complaint, the company “processes over 10 billion messages per day from approximately 450 million users.”

PTAB Finds DNA Sequencing Patent Claims to be Invalid

by Thomas J. Bean

Posted in Biotech / Patent

On March 12, 2014

As we have previously reported, Inter Partes Review (IPR) was introduced on September 11, 2012, under provisions of the America Invents Act (AIA) as one of new several tools for challenging the validity of granted patents in the U.S. Patent & Trademark Office (USPTO). With an anticipated pendency of 18 to 24 months to final written decision upon filing of an IPR request, the USPTO’s Patent Trial and Appeal Board (PTAB) is presently proceeding to issue its first IPR decisions. Although a majority of IPR requests filed to date have been directed to patents in the electrical and computer arts, decisions are also being rendered for patents in other technology domains including the biological arts.

A Quest to Slay the Trolls: Legislative Attempts to Send a Cease and Desist Message to Patent Trolls

by Gibbons P.C.

Posted in Patent

On March 10, 2014

Concerns about shake-down patent assertion have prompted response at federal and state levels, from all branches of government. Proposed legislative solutions have included bills that would penalize bad faith claims, impose fines on patent assertion entities (“PAEs”) that send letters with vague allegations of infringement, or make the awarding of attorney’s fees standard in PAE patent litigations. While no legislative proposal answers all the unique challenges patent trolls represent, these lawmaking efforts have highlighted the issue and are prompting other stakeholders to meaningfully assess the holes in the current patent system.

Supreme Court Rules that Employees of Private Contractors Can Qualify as Whistleblowers Under Sarbanes-Oxley

by Richard S. Zackin

Posted in Whistleblower

On March 7, 2014

On March 4, 2014, the U.S. Supreme Court issued its much anticipated decision in Lawson v. FMR LLC, resolving a dispute over the scope of the whistleblower provision of the Sarbanes-Oxley Act, 15 U.S.C. § 7201, et seq. (“SOX”). Private contractors and subcontractors of public companies should give their attention to this decision. Although SOX is generally thought of as a statute that regulates public companies and their employees, the Lawson decision extends SOX’s whistleblower provisions to cover private companies and their employees as well.

Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

by Gibbons P.C.

Posted in Environmental and Green Issues

On March 6, 2014

The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014.

The ART Act: New Legislation Proposes Royalties for Visual Artists Based on Secondary Sales

by Gibbons P.C.

Posted in Copyright

On March 6, 2014

When music is sold, or a poem or novel is purchased, the composer or writer receives a portion of the initial sale or royalties on future sales of copies of the work. The more copies of a song, composition or book that are sold, the greater the royalties the composer or writer may receive. However, this is not true for all copyrightable material, particularly certain works of visual art such as contemporary paintings or sculptures. Unlike music and written works, that are mass produced and distributed, visual art, as noted by United States Copyright Office, “are produced singularly and valued for their scarcity.” The artist may receive a one-time fee or commission for their original work, but such works are often resold at auction with the artist rarely receiving any additional payment.

Arbitration Agreement Nullified by Employee Handbook Disclaimer According to NJ District Court

by Gibbons P.C.

Posted in Policies and Handbooks

On March 5, 2014

Employers often use arbitration programs with employees to elect a forum that eliminates jury trials and class actions. A New Jersey District Court recently found that the employer’s handbook containing a provision which, gives the employer the exclusive ability to change the provisions of the handbook without notice to employees, invalidated an employee’s arbitration agreement.

Potential For Harm: Indemnity Agreements and Willfulness Determinations

by Gibbons P.C.

Posted in Licensing / Patent

On March 4, 2014

Patent indemnification agreements, common in asset purchases, mergers and acquisitions, manufacturing, and patent licensing agreements, reduce the possibility of liability should a third party later assert its patent against the asset purchaser or licensee. However, entering into such agreements to mitigate risk can actually increase exposure. During the damages stage of patent infringement lawsuits plaintiffs often seek, with varying success, to bring in evidence of the existence of a defendant’s indemnification agreement to show that defendant knew of the patent and committed willful infringement. Thus, the very vehicle used to shift the risk of monetary liability can sometimes itself be used as a mechanism to enhance damage awards.