Gibbons Law Alert

Gibbons Law Alert Blog

The Supreme Court Weighs in on PTAB’s Claim Construction Standard for IPR Proceedings

Posted in Patent

On August 12, 2016

In a recent decision, the Supreme Court affirmed the Federal Circuit’s ruling that the Patent Trial and Appeal Board (PTAB) was within its authority to give a patent claim “its broadest reasonable construction” during an inter partes review (IPR) proceeding. The Court found that the PTAB was authorized to apply this standard because 35 U. S. C. §316(a)(4) granted the Patent Office authority to issue “regulations . . . establishing and governing inter partes review under this chapter.”

U.S. District Court Limits So-Called “Piggyback” Discovery

by Wendy R. Stein

Posted in Patent

On August 11, 2016

The United States District Court for the District of Nevada recently issued an Order casting doubt on a litigant’s ability to obtain blanket discovery from an adversary’s prior patent litigation without a specific showing of relevance. Anyone opposing overbroad discovery requests seeking “all documents” from a prior patent litigation should read a series of decisions in the case captioned Racing Optics v. Aevoe Corporation (“Racing Optics”).

Brexit Raises Questions About the Future of the Unitary Patent and Unified Patent Court

by Estelle J. Tsevdos, Ph.D.

Posted in Patent / Pharmaceuticals

On August 8, 2016

Recently, the UK voted to leave the EU. However, that has not happened yet for several reasons. The first reason is that the referendum actually needs to be voted on by Parliament, adopting the results of the referendum vote. A second reason is that withdrawal from the EU occurs when Article 50 of the Lisbon Treaty is enacted. Neither one of these two items has occurred. If Parliament agrees to follow the referendum outcome and votes to leave the EU, and if the UK gives notice under Article 50, then many trade agreements and treaties will need to be negotiated in a two-year period from date of notification.

The Ties That Bind: When Will a Court Expel a Member of an LLC?

by Gibbons P.C.

Posted in General Litigation

On August 8, 2016

In IE Test, LLC v. Carroll, the New Jersey Supreme Court addressed when a limited liability company (LLC) can expel a member under a statute authorizing a member’s disassociation for conduct that has made it “not reasonably practicable to carry on” the LLC’s activities. IE Test had three members, two of whom actively ran the business and drew salaries, and a third who played no role in the LLC’s day-to-day affairs. Before an operating agreement was executed, a dispute arose between the two active members and the passive member over the passive member’s compensation. Consequently, no operating agreement was ever signed. The two active members then sought to judicially disassociate the passive member on the statutory ground that the impasse and absence of an operating agreement made it “not reasonably practicable” that he could continue as a member. The trial court granted summary judgment, expelling the passive member, and the Appellate Division affirmed.

Federal Circuit Overturns Supplemental Jurisdiction Over Claims of Breach of Fiduciary Duty

by Gibbons P.C.

Posted in Patent / Pharmaceuticals

On August 5, 2016

In a recent decision from the Federal Circuit in AngioScore, Inc. v. TriREME Medical LLC et al. the court found that a plaintiff’s claim for patent infringement and breach of fiduciary duty did not have the requisite “common nucleus of operative fact” for the district court to maintain supplemental jurisdiction over breach of fiduciary duty claims. In particular, this decision provided the Federal Circuit a rare opportunity to review the jurisdiction limits of a district court in a case involving federal patent infringement claims and state law claims for breach of fiduciary duty aiding and abetting and unfair competition by an independent director and companies he co-founded which developed a competitive product to a product marketed by the plaintiff corporation AngioScore, Inc.

New Jersey Supreme Court Holds Denial of Right to Jury Trial Not Within Panoply of Sanctions in a Trial Court’s Arsenal

by Caroline E. Oks

Posted in General Litigation

On August 4, 2016

Recently, the New Jersey Supreme Court unanimously held that trial courts may not deprive civil litigants of their constitutionally protected right to a jury trial as a sanction for failure to comply with a procedural rule. In Williams v. American Auto Logistics, the pro se plaintiff’s complaint did not include a jury demand, but the defendant’s answer did. The defendant later sought to waive its jury demand, but the plaintiff withheld his consent, which was required by court rules. Notwithstanding the lack of consent, the trial judge granted the request to waive the jury as a sanction against the plaintiff for his failure to provide the pre-trial disclosures required by Rule 4:25-7. The Appellate Division affirmed the trial court’s waiving of the jury as a sanction for the plaintiff’s failure to comply with Rule 4:25-7.

New Jersey’s Time of Application Rule Does Not Bar a Favorable Zoning Amendment

by Howard D. Geneslaw

Posted in Development/Redevelopment

On August 2, 2016

In a published decision, the New Jersey Appellate Division ruled on July 27 that the “time of application” rule, which mandates that development applications are governed by the regulations in effect at the time of submission, and was intended to protect applicants from negative zone changes while their applications were pending, does not apply to zone changes which benefit a project.

Newark Requires Developers to Identify Environmental Impacts of Projects

by Gibbons P.C.

Posted in Development/Redevelopment / Environmental and Green Issues

On July 29, 2016

Recently, the City of Newark (the “City”) approved Ordinance No. 16-0803, a/k/a the Environmental Justice and Cumulative Impacts Ordinance, (the “Ordinance”), which may significantly impact the process for seeking development approvals from the City. The Ordinance purports to advance the policy of promoting environmental justice, environmental stewardship, and sustainable economic development in the City. More specifically, the Ordinance seeks to mitigate the disproportionate impact of pollution and environmental degradation on the health of minority and socioeconomically disadvantaged communities, otherwise known as “environmental injustice.” As the Ordinance notes, the prevalence of environmentally overburdened, underserved, and economically distressed communities near industrial centers and other areas afflicted by poor environmental quality is well documented.

Parties Must Clearly Agree to Delegate Arbitrability to an Arbitrator, Says the NJ Supreme Court

by Michael R. McDonald and Kate E. Janukowicz

Posted in Class Action Defense / General Litigation

On July 28, 2016

In its most recent pronouncement on arbitration clauses, the New Jersey Supreme Court confirmed that it is for the Court, and not an arbitrator, to determine whether the parties have agreed to arbitrate consumer fraud claims in the absence of a clear delegation clause to the contrary. In Morgan v. Sanford Brown Inst., the New Jersey Supreme Court reversed an order of the Appellate Division holding that arbitrability was for the arbitrator to decide, finding that under Atalese v. U.S. Legal Servs. Grp. and First Options of Chi., Inc. v. Kaplan, the agreement to delegate arbitrability to an arbitrator must, as with the other arbitration provisions, clearly inform the average consumer of the rights he or she is giving up.

N.J. Appellate Division Holds that Municipalities are not Obligated to Satisfy “Separate and Discrete” Gap Period Need for Affordable Housing

by Cameron W. MacLeod

Posted in Development/Redevelopment

On July 28, 2016

On July 11, 2016, in an interlocutory appeal, the Appellate Division reversed Judge Mark A. Troncone’s February 18, 2016 order, which had found, as a matter of law, that municipalities were obligated to provide realistic opportunities for the construction of affordable housing for the need that accumulated during the period from 1999-2016 (the “gap period”). In an opinion by Judge Fasciale, the Appellate Division held that municipalities were not required to discretely calculate or satisfy the housing obligations that accumulated during the gap period as part of a municipality’s “prospective need.” In the Appellate Division’s view, those who are living in dilapidated, overcrowded, or cost-burdened housing would be adequately reflected in present need calculations, and any further alterations to municipal obligations would require legislative or executive action. The opinion highlights what appears to be a distinction between the constitutional fair share housing obligation, which had been understood to accrue year after year according the Court’s decision in Mt. Laurel II, and the compliance obligations arising under the Fair Housing Act, which are limited only to satisfying the statutorily prescribed need.