Gibbons Law Alert

Gibbons Law Alert Blog

Gibbons Institute Presents, “Federal Circuit Year in Review,” Event Featuring Honorable Faith Hochberg

On August 23, 2013

The Gibbons Institute of Law, Science & Technology, and the Student Intellectual Property Law Association present, “Federal Circuit Year in Review,” an event featuring the Honorable Faith Hochberg, District Judge for the U.S. District Court for the District of New Jersey. This program will discuss key IP issues decided by the Federal Circuit over the past 18-months and the practical implications of these issues moving forward. Along with Judge Hochberg, panelists include: Ralph A. Dengler, Director, Intellectual Property Department, Gibbons P.C.; Erik Lillquist, Vice Dean & Professor of Law, Seton Hall Law School; and David Opderbeck, Professor of Law and Director, Gibbons Institute of Law, Science & Technology, Seton Hall Law School.

Father’s “Lifestyle” as Portrayed on Internet Causes Dramatic Increase in Child Support Obligations

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On August 19, 2013

A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court. The Fitzgerald proceedings concerned a father’s attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business. In opposition, the child’s legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant’s income was unreported, and that a much higher child support obligation was warranted. To support that position, the custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, comments from the father’s Myspace page included statements that in four hours he earns $250, his schedule had “been packed so [he could] pay for this wedding,” and that he purchased television advertising spots.

The Texas Two Step, A Tale of Two Texas District Courts’ Differing Views Concerning Stay Requests Pending Inter Partes Review

by Robert E. Rudnick and Thomas J. Bean

Posted in Patent

On August 16, 2013

The District Courts for the Southern and Western Districts of Texas appear to have taken different positions with regard to estoppel in an inter partes review (“IPR”) context, in e-Watch v. FLIR Systems, Case No. 4-13-00638 (S.D. Texas) and e-Watch v. ACTi Corp., Case No. 5-12-cv-00695, (W.D. Texas), respectively. The apparent split arose when the courts were confronted with motions to stay their respective patent infringement lawsuits pending disposition of a petition for IPR brought by another defendant in a related patent lawsuit, e-Watch v. Mobotix Corp., Case No. 5-12-cv-00492, (W.D. Texas). Interestingly, the petition for IPR has not yet been decided by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office.

NLRB Has Five Board Members for First Time in a Decade

by Gibbons P.C.

Posted in Labor

On August 14, 2013

On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.

Resuscitating Therasense? CD Cal Court Finds Inequitable Conduct by Patentee

by Charles H. Chevalier

Posted in Patent

On August 14, 2013

IP practitioners have witnessed the dearth of inequitable conduct findings in the wake of Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011). There, the Federal Circuit reiterated en banc that to establish unenforceability for inequitable conduct before the United States Patent and Trademark Office (“PTO”), a party must prove by clear and convincing evidence that (1) information material to patentability was withheld from the PTO, or material misinformation was provided to the PTO, and that such act was done (2) with the intent to deceive or mislead. A few months ago, we reported on a case that continued to signal the death knell of this formerly ubiquitous defense, and thus begging the present question: is inequitable conduct even alive anymore? Of course it is.

From Ink to Occupancy – Part Three: Land Use Due Diligence – The Title Myth

by Gibbons P.C.

Posted in Transactional Real Estate and Leasing

On August 13, 2013

As the third installment in the series, “From Ink to Occupancy, A Game Plan for a Successful Real Estate Project,” stemming from the Gibbons Women’s Initiative Seminar Series held in May, this blog addresses the question of whether title review alone is sufficient for purposes of ascertaining what restrictions are in place for a property being acquired. The simple answer is NO. All too often commercial buyers anxious to close on a property take shortcuts and limit their due diligence to title review as opposed to conducting land use due diligence. This blog explains why, particularly in New Jersey, it is critical to conduct land use and zoning due diligence in addition to title review prior to the acquisition of a property, so that you can be fully aware of any potential restrictions impacting the property.

At the Intersection of Environmental and Bankruptcy Laws

by Gibbons P.C.

Posted in Environmental and Green Issues

On August 9, 2013

Where environmental liability and bankruptcy intersect, the landscape with respect to allocation of liability among potentially responsible parties (“PRPs”) with ongoing obligations to remediate contaminated property has been greatly affected by cases such as In re Chemtura Corp., 443 B.R. 601 (Bankr. S.D.N.Y. 2011) and In re Lyondell Chem. Co., 442 B.R. 236 (Bankr. S.D.N.Y. 2011), both decided by Judge Gerber in the Southern District of New York. The New Jersey Law Journal article, “At the Intersection of Environmental and Bankruptcy Laws,” by Uzoamaka Okoye and Natasha Songonuga, examines a small, but interesting aspect of the Chemtura decision to allow the contingent “future” portion of the proof of claim filed by the Delaware Sand & Gravel Remedial Trust (the “Trust”), notwithstanding that the claim related to the debtors’ future costs to pay for remedial work at a Superfund site.

Third Circuit District Courts Take Aim at Non-Patent Eligible Patents Under § 101

by Thomas J. Bean and Robert E. Rudnick

Posted in Patent

On August 8, 2013

In a pair of recent decisions issued just days apart, the District of Delaware and the District of New Jersey have found patents relating to online transaction guaranties and financial services to be non-patent eligible pursuant to 35 U.S.C. § 101. Practitioners may wish to take heed …. In buySafe, Inc. v. Google, Inc., C.A. No. 11-1282-LPS, Dkt. 69 (D. Del. July 29, 2013) (Stark, J.), buySafe asserted its online transaction guaranty patent, and Google moved for judgment on the pleadings pursuant to Rule 12(c). Ultimately, Judge Stark of the Delaware District Court granted defendant’s motion on the grounds that the patent-in-suit was invalid under 35 U.S.C. § 101 because it is directed to non-patent-eligible subject matter. In so ruling, the Court noted that on the face of the patent, it described that the entire inventive process could be performed by a human.

Citing Concepcion, Ninth Circuit Holds that FAA Preempts Montana State Law that Invalidates Mandatory Arbitration Clause

by Gibbons P.C.

Posted in Class Action Defense

On August 8, 2013

In Mortensen v. Bresnan Communications, LLC, the plaintiffs filed a putative class action against Bresnan Communications alleging violations of various federal and Montana state laws in connection with targeted advertising that they received as customers of high-speed, broadband Internet service. When signing up for the service, the plaintiffs had entered into a subscriber agreement that contained a mandatory arbitration provision and designated the application of New York law to all disputes. Applying the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion, the Ninth Circuit found that the Federal Arbitration Act (“FAA”) preempted a Montana state law that the District Court had relied on to invalidate the mandatory arbitration clause.

Seventh Circuit Allows comScore Privacy Litigation to Proceed as a Class Action

by Gibbons P.C.

Posted in Class Action Defense

On August 6, 2013

In what has been dubbed, “the largest privacy class action suit ever,” the Seventh Circuit in Harris v. comScore, Inc., refused interlocutory review of the District Court’s order granting class certification. Although utterly silent as to the basis for denying review under Fed. R. Civ. P. 23(f), the Court of Appeal’s decision is likely to impact future privacy class actions as well as corporate culture as we know it.