Gibbons Law Alert

Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc.: Federal Circuit Explains Willful Infringement

Posted in Patent

On June 20, 2012

Last week, in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., the Federal Circuit issued a precedential opinion concerning the willful infringement standard articulated in In re Seagate Technology, LLC (“Seagate”). After affirming the United States District Court for the District of Arizona, appellant Gore filed a petition for rehearing and rehearing en banc, challenging the District Court’s willfulness analysis. The Federal Circuit granted Gore’s petition for rehearing en banc for the sole purpose of determining the standard of review applicable to willful infringement.

Attorneys’ Use of Social Media to Research Jurors — Another Ethical Land Mine

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On June 20, 2012

The New York City Bar Association’s Formal Opinion 2012-2 examines whether ethical restrictions apply to attorneys who use search engines or social media websites for the purpose of researching jurors. While the Opinion does not oppose such research (provided no communication between an attorney and potential or sitting juror occurs), it broadly interprets “communication.” Although a “friend request” would obviously constitute a communication, the Opinion struggles with whether an inadvertent or unknowing notification or message to the juror, which was triggered by the attorney’s attempt to view a page or comments (such as what can occur when one views a person’s LinkedIn™ profile), should also be treated as a communication and thereby prohibited. Ultimately, the Opinion “takes no position” on that issue and instead, cautions attorneys to understand the technology at issue, refrain from engaging in deception to gather information, and promptly report any discoveries of juror misconduct that are gleaned from the research.

High Noon in DC: Judge Facciola Lays Down the Law on Discovery Cooperation

by Mark S. Sidoti

Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On June 18, 2012

Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.

Third Circuit Denies Federal Antitrust Standing to Hospitals Purchasing Products Through Distributors Despite Contract Between Manufacturer and Hospitals’ Group Purchasing Organization

by Christopher Walsh

Posted in Antitrust

On June 15, 2012

In In re Hypodermic Products Antitrust Litigation, the Third Circuit once again denied federal antitrust standing to a class of hospitals seeking damages from the manufacturer of hypodermic products because the hospitals paid for and took possession of such products from intermediate distributors and negotiated their final price with the distributors.

Key for IP Practitioners: Preparation, Preparation, Preparation!

by Gibbons P.C.

Posted in Licensing / Patent

On June 14, 2012

Two recent decisions highlight the importance of proper preparation during patent litigation, from the perspective of both plaintiffs and defendants. In In re Bill of Lading, No. 2010-1493, 2012 U.S. App. LEXIS 11519 (Fed. Cir. June 7, 2012), the Court held that direct infringement only needs the same level of pleading as that outlined in Form 18 (which is a sample complaint for direct infringement) of the Appendix of Forms to the Federal Rules of Civil Procedure, while in contrast, indirect infringement needs to be pled in accordance with the higher standard delineated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). In re Bill of Lading, 2012 U.S. App. LEXIS 11519, at *17-27.

Residential Property Tax Relief Could Be On Its Way to Philadelphia

by Gibbons P.C.

Posted in Tax Abatement / Transactional Real Estate and Leasing

On June 13, 2012

All in favor of residential property tax relief, raise your hand! And, if you own an eligible home in the City of Philadelphia, apply now. The City is offering its residential homeowners the opportunity to apply for a Homestead Exemption. The Homestead Exemption would reduce the assessed value of an eligible home by $15,000 or more, and consequently lower the real estate taxes owed by the homeowner because the homeowner would pay real estate tax only on the reduced assessment.

ICANN Releases Listing of gTLD Applications

by Gibbons P.C.

Posted in Trademarks

On June 13, 2012

Today, ICANN, the Internet’s domain name registration watch dog, will publish a listing of nearly 1,900 new generic Top-Level Domains (“gTLDs”) that may be approved for use as early as March 2013. We previously wrote about ICANN’s expansion program and suggested safeguards that companies could implement to protect themselves.

Plaintiff Limited to Nominal Presumed Damages in Defamation Case Absent Proof of Actual Harm

by Thomas J. Cafferty

Posted in Appellate

On June 12, 2012

On May 21, 2012, the New Jersey Supreme Court issued a corrected Opinion in W.J.A. v. D.A.. In that Opinion, the Court held that presumed damages continue to play a role in New Jersey’s defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer any evidence of actual damage to reputation, the doctrine of presumed damages permits him/her to survive a motion for summary judgment and to obtain nominal damages if successful at trial. The Court emphasized, however, that in order to receive compensatory damages, a plaintiff must prove actual harm to his/her reputation.

USPTO Offers IP Awareness Assessment

by Gibbons P.C.

Posted in Patent

On June 11, 2012

Under the joint auspices of the US Patent and Trademark Office the National Institute of Standards and Technology/Manufacturing Extension Partnership, the IP Awareness Assessment is now in the beta stage and available for businesses and inventors to assess their intellectual property awareness. Dubbed “A business and inventor’s IP education tool,” this web-based offering is designed to assess IP knowledge and provide personalized training resources for businesses and inventors.

Newly-Adopted U.S. Customs Rule Provides Brand Owners with Critical Information to Combat the Import of Counterfeit Goods

by Gibbons P.C.

Posted in Trademarks

On June 8, 2012

For brand owners facing the challenges posed by counterfeiting, U.S. Customs and Border Patrol (“CBP”) recently adopted a new temporary rule which has the potential to make it much easier to combat the import of counterfeit goods into the United States (“Interim Rule”). The Interim Rule provides that in instances where the CBP has suspicions regarding the authenticity of goods being imported, and the importer fails to provide proof of genuineness, the CBP is permitted to share detailed information about the suspect goods and importer with brand owners. This represents a welcome sea change in CBP policy for brand owners who have long been frustrated by CBP’s policy regarding limited information sharing.