Gibbons Law Alert

Gibbons Law Alert Blog

Funding Available for Site Remediation in New Jersey

On December 27, 2013

On December 18, 2013, Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, moderated a panel, “There May Be Money for Your Client for Site Remediation,” sponsored by the New Jersey Bar Association’s Environmental Law Section. The program focused on the Hazardous Discharge Site Remediation Fund (“HDSRF”). Michael Deely, Supervisor for NJDEP’s HDSRF program, cheered the audience by reporting that the long depleted fund once again has money for site remediation grants and loans.

Slicing and Dicing the Patent Damages Royalty Base

by Gibbons P.C.

Posted in Patent

On December 23, 2013

Two recent District Court decisions provide IP practitioners with guidance about royalty base in patent damages calculations. Last week, in Inventio AG v. Thyssenkrupp Elevator Americas Corp., et. al., 1-08-cv-00874 (D. Del. Dec. 13, 2013), Judge Andrews denied defendants’ motion for summary judgment and motion to strike that plaintiff improperly calculated damages. The defendants argued that plaintiff’s expert incorrectly included revenue from defendants’ service contracts in the damages calculation. However, the court determined that the expert relied on the service contracts to increase the royalty rate not the base. Thus, the court denied the motion. This case provides support that revenue generated outside of the royalty base can still be used to increase the royalty rate, thus potentially achieving higher damages.

The Deposition Not Taken: Eighth Circuit Holds Third Party Document to be Business Records of Another Entity Admissible Under FRE 803(6)

by Gibbons P.C.

Posted in Environmental and Green Issues

On December 18, 2013

In Residential Funding Co., LLC v. Terrace Mortgage Co., (Docket No. 12-2569, August 7, 2013) the Eighth Circuit upheld a grant of summary judgment, including damages evidenced by records created by a third party and supported by the third party’s affidavit. Ordinarily, an affidavit of a third party, if authenticated under FRE 902(11) (See Klock, New Jersey Practice, V2D, 555 (West 2009) is admissible if an appropriate foundation is laid. See Klock, New Jersey Practice, V2E, 342-43 (West 2012). Proper authentication requires notice of intent to use the affidavit. The affidavit in question apparently was not authenticated in that manner.

Legislature Contemplates Extension of Moratorium on Statewide Non-Residential Development Fee

by Gibbons P.C.

Posted in Development/Redevelopment

On December 16, 2013

At the end of last week, the New Jersey State Senate (“Senate”) introduced Bill S3116 that proposes to continue the moratorium on the statewide non-residential development fee (the “Fee”) that expired on July 1, 2013. Since July 1, 2013, developers and land use attorneys have been in a state of flux with regard to whether the fee applies to development projects. If passed, this legislation would extend the moratorium to December 31, 2014.

In Refusing to Review Order Requiring Disclosure of Identities of Anonymous Internet Commentators, Pennsylvania Court Finds No Protectable First Amendment Interest in Maintaining Anonymity When One Comments Under Name of Real Person

by Gibbons P.C.

Posted in General Litigation

On December 13, 2013

In Amerisource Bergen Corporation v. John Does 1 and 2, the Superior Court of Pennsylvania recently held that two individuals who posted false and non-satirical comments to an online article under the name of an executive mentioned in the article had no protectable interest in their identities sufficient to invoke the collateral order doctrine and permit appellate review of a trial court order granting pre-complaint discovery of their identities, thus allowing an executive and his company to pursue claims against the posters for their unlawful appropriation of the executive’s name.

Momentum Builds on Patent Litigation Reform…Goodlatte Bill Passes House

by Robert E. Rudnick and Thomas J. Bean

Posted in Patent

On December 13, 2013

As we previously reported, House Judiciary Committee Chairman Bob Goodlatte (R-VA) recently introduced H.R. 3309, entitled “Innovation Act,” (hereafter, “the Goodlatte Bill”). After varying support and challenges to the bill, as well as a competing Senate version, on December 5, 2013, the House passed an amended version of the Goodlatte Bill with a bi-partisan vote of 325-91.

Court Finds No Direct Infringement by Fracking Water Suppliers

by Gibbons P.C.

Posted in Patent

On December 11, 2013

In Energy Heating, LLC, et al. v. Heat On-the-Fly, LLC, et al., 13-cv-00010 (D. N.D.), the District Court for the District of North Dakota recently granted partial summary judgment of noninfringement for the Plaintiffs, who provide portable water heaters in North Dakota. Plaintiffs had brought a declaratory judgment action against Defendants, who had allegedly reported the suspected infringement of their patent to Plaintiffs’ customers.

Supreme Court to Take Case on Patentability of Software

by Christopher H. Strate

Posted in Patent

On December 9, 2013

On Friday, the Supreme Court granted a writ of certiorari in Alice Corp. v. CLS Bank Int’l (Docket No. 13-298). In this case, the Court will take up the issue of: Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

NJIPLA to Host the 27th Annual Pharmaceutical / Chemical Patent Practice Update

by Gibbons P.C.

Posted in Pharmaceuticals

On December 6, 2013

On Wednesday, December 11, the New Jersey Intellectual Property Association will host the 27th Annual Pharmaceutical / Chemical Patent Practice Update at the Woodbridge Hilton in Iselin, NJ. This seminar will cover a range of important topics pertaining to arising pharmaceutical patent matters. This seminar will cover a range of important topics pertaining to arising pharmaceutical patent matters such as: Impact of Erosion of IP Rights on the Pharmaceutical Industry; Maximizing the Probability of Success in Post-Grant Proceedings for Pharmaceutical Patents; Patent Term Adjustment Strategies; The Bolar Exemption in the EU and UK; Claiming Functionally-Defined Biologics; Self-Colliding” Co-Pending Applications at the EPO; Recent Developments in Hatch-Waxman Litigation: (1) Impact of FTC v. Actavis on Pharmaceutical Patent Settlements; and (2) NCE Exclusivity for Enantiomers and Combination Products; and USPTO Ethics Horror Stories – Tales from the OED Crypt.

NJDEP Holds Its 12th Annual Regulatory Update Conference

by Gibbons P.C.

Posted in Environmental and Green Issues

On December 6, 2013

The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs. The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs including: The Environmental Management Program; The Site Remediation Program; ; The Bureau of Air Quality Planning; The Office of Environmental Justice; The Bureau of Environmental Evaluation & Risk Assessment; The Emission Statement Program; and The Office of Science.