Gibbons Law Alert

Gibbons Law Alert Blog

Caveat Venditor (Supplier Beware): The Importance of Accurate Accounting When Providing Materials to Contractors Working on Multiple Projects

Posted in Construction / Construction Liens

On March 20, 2013

A recent New Jersey Appellate Division case imposes a significant burden on lien-claimant material suppliers that supply materials to contractors on multiple construction projects. As discussed in the February 13, 2013, article “A Duty to Inquire Under Lien Law,” New Jersey Law Journal, Vol. 211 – No. 6, the court in L&W Supply Corp. v. DeSilva, addressed what is necessary for a material supplier to satisfy its obligation to apply payments on the account from which the payment obligation arises in order to preserve its construction lien rights, if any.

Treble Damages for Willful Patent Infringement Become Elusive

by Gibbons P.C.

Posted in Patent

On March 20, 2013

Accused patent infringers continue to breath easier as an ever more challenging path to treble damages persists. Recent decisions from the Court of Appeals for the Federal Circuit placed the objective prong of the In re Seagate test toward establishing willful infringement squarely with a judge. The impact on appeal has taken effect. Under 35 U.S.C. § 271(a), direct patent infringement is a “strict liability” offense. In certain cases, 35 U.S.C. § 284 may provide “up to three times” actual damages. A determination that the accused infringer willfully infringed is used to determine whether enhanced damages are warranted. Finisar Corp. v. DirecTV Group, Inc. 523 F.3d 1323, 1339 (Fed. Cir. 2008).

Got Those Supplier Ascertaining Allocation Blues?

by Gibbons P.C.

Posted in Development/Redevelopment

On March 19, 2013

In L & W Supply Corp. v. Desilva, 429 N.J. Super. 179 (App. Div. 2012), the Appellate Division of the New Jersey Superior Court concluded that, in certain circumstances, a construction lien claimant has an obligation to inquire into the source of funds paid for materials provided for construction projects or face the loss of the right to file a lien. The decision fills in some of the contours of the supplier’s duty set forth by the Supreme Court in Craft v. Stevenson Lumber Yard, Inc., which held that a supplier has a duty to allocate payments based on what he knows or should know about the source of the payments. The new decision has ramifications for suppliers and owners.

An International Standard for E-Discovery?

by Gibbons P.C.

Posted in Technology Developments and Issues

On March 18, 2013

The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.

NLRB to Ask Supreme Court if Board Members Were Lawfully Appointed

by Gibbons P.C.

Posted in Labor

On March 14, 2013

Earlier this week, the National Labor Relations Board (the “Board” or the “NLRB”) announced it will petition the United States Supreme Court to review Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause.

Limitations on Discovery in Inter Partes Review Proceedings

by Gibbons P.C.

Posted in Patent / USPTO

On March 12, 2013

Companies accused of patent infringement have a number of basic alternatives to contemplate: settle the matter; defend the suit; or consider resort to a post grant patent proceeding at the United States Patent and Trademark Office (USPTO). With an eye towards cost, risk and accurate resolution, inter partes review (IPR) proceedings are an attractive alternative to settling or defending.

NJIPLA to Host the 2013 Patent Litigation Seminar

by Gibbons P.C.

Posted in Patent

On March 11, 2013

On Wednesday, March 13, the New Jersey Intellectual Property Association will host the 2013 Patent Litigation Seminar at the Woodbridge Hilton in Iselin, NJ. This seminar will cover a range of important patent litigation topics such as: The Divided Court on Divided Infringement: What Comes Next? Willful Infringement: The Federal Circuit is Listening. The Clear Line Blurs – Where is the “Safe Harbor” of 271(e)(1) after Classen v. GSK & Momenta v. Amphastar? Prometheus v. Mayo: Judicial Activism or Reality Check? Observations on the Gene Patenting Debate.

Gibbons Institute of Law, Science & Technology Files Amicus Brief in “Pay-for-Delay” Case Before Supreme Court

by Gibbons P.C.

Posted in Pharmaceuticals

On March 8, 2013

We previously reported on the battle over so-called “pay-for-delay” settlements, which puts the pharmaceutical industry versus the Federal Trade Commission (“FTC”) before the Supreme Court, to decide the legality of reverse payments in Hatch-Waxman cases. The case is FTC v. Actavis, Inc., et al. Last week, the Gibbons Institute of Law, Science & Technology, among 16 other amici, filed briefs in support of respondents and the lawfulness of these payments. The other amici included: Antitrust Economists; Bayer AG and Bayer Corp.; Health Economics and Law Professors; Mediation and Negotiation Professionals; Law Professors Gregory Dolin, Kent Bernard, et al.; The American Intellectual Property Law Association; Enavail, LLC; The Generic Pharmaceutical Association]; Intellectual Property Owners Association; Merck & Co., Inc.; National Association of Manufacturers; Pharmaceutical Research and Manufacturers of America (Phrma); New York Intellectual Property Law Association; Shire plc; Washington Legal Foundation; Generic Manufacturers Upsher-Smith Laboratories, Inc.; Teva Pharmaceuticals USA, Inc.; Ranbaxy Pharmaceuticals, Inc.; Mylan Pharmaceuticals Inc.; and Impax Laboratories, Inc.

“SHIELD Act” Reintroduced to Combat NPEs…

by Thomas J. Bean

Posted in Patent

On March 7, 2013

We previously reported on the proposed Saving High-Tech Innovators from Egregious Legal Disputes Act of 2012 (“SHIELD Act of 2012”), introduced in the House of Representatives as HR 6245 last year. This Act, intended to discourage frivolous patent litigations by so-called non-practicing entities (“NPEs,” or sometimes referred to as “patent trolls”), proposed adding new section 35 U.S.C. § 285A to make fee-shifting available under certain circumstances in patent litigations involving computer hardware and software patents. More specifically, it provided that fees could be awarded to a prevailing defendant upon finding that the party alleging infringement did not have a “reasonable likelihood of succeeding.” As written, the SHIELD Act of 2012 failed to garner sufficient support and died in committee.

PhatRat’s Helmet Impact Technology Patent Suit in N.D. Illinois — Considerations For Defendant Riddell

by Gibbons P.C.

Posted in Patent

On March 5, 2013

In PhatRat Technology, LLC v. Riddell, PhatRat, the purported exclusive licensee of U.S. Patent Nos. 7,386,401 and 7,693,668 relating to helmet impact reporting technology (“the PhatRat patents”), sued sporting goods manufacturer Riddell in the Northern District of Illinois for infringement of the PhatRat patents. The PhatRat patents issued in June 2008 and April 2010, respectively.