Gibbons Law Alert

Gibbons Law Alert

Gibbons Law Alert Blog

Environmental Group’s David J. Freeman to Co-Chair NYSBA’s Superfund/Brownfield Program Update 2023

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Posted in Environmental Issues / Uncategorized

On November 29, 2023

The New York State Bar Association Environmental & Energy Law Section is presenting a virtual conference on the state’s brownfield and federal Superfund programs on Tuesday, December 5. Gibbons’s David J. Freeman, Environmental Group Senior Counsel, is Co-Chair of the conference, which will feature a distinguished faculty comprising government officials, attorneys, and consultants in the field to review recent developments in both programs. In addition, Mr. Freeman will moderate the panel discussing the federal Superfund program. The CLE event will also feature a panel discussion on current issues in environmental insurance and an update on recent case law involving Superfund and brownfield issues. For more information about the program or to register to attend, please click here.

The Gibbons Government & Regulatory Affairs Group’s 2023 General Election Recap

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Posted in Elections

On November 8, 2023

Many political pundits predicted that the 2023 General Election would mirror the 2021 vote, when Republicans picked up seats in the State Legislature by defeating incumbent legislators. A historical repeat seemed possible since the Legislature was running in new districts under a “consensus” map agreed to by both parties, recent polling data has indicated that President Biden has become less popular in New Jersey, and the issues at the forefront created opportunities for the minority party. The most closely watched legislative districts were Districts 3 and 4 in the southern part of the state, Districts 11 and 16 in the central region, and District 38 in northern New Jersey. It was the Democrats, however, who flipped the script from 2021 and ended up gaining five seats in the State House by holding off challengers and defeating incumbent and favored Republican candidates: In Legislative District 3 (Gloucester/Salem/Cumberland Counties), incumbent Republican Senator Ed Durr lost to former State Assemblyman John Burzichelli. Senator-elect Burzichelli’s running mates for the Assembly, Heather Simmons and Dave Bailey, appear on track to defeat incumbent Republican Assemblywoman Bethanne McCarthy Patrick and Thomas Tedesco. These results will flip the Third District from Republican to Democrat. With three open seats in Legislative District 4 (Camden/Gloucester Counties), incumbent Assemblyman Paul Moriarty won an open Senate seat...

What Employers Should Know About Biden’s AI Executive Order

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Posted in Discrimination / Labor

On November 7, 2023

On October 30, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The sweeping Executive Order sets out standards for safe and secure uses of AI with an emphasis on privacy protections, the promotion of innovation and competition, avoiding discrimination and bias, and supporting workers. The Executive Order requires principles and best practices to be established by the Secretary of Labor within 180 days of the Executive Order. The principles and best practices will provide guidance for employers to “mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits.” The principles and best practices must address the following, • job-displacement risks and career opportunities related to AI, including effects on job skills and evaluation of applicants and workers • labor standards and job quality, including issues related to the equity, protected activity, compensation, health, and safety implications of AI in the workplace • implications for workers of employers’ AI-related collection and use of data about them, including transparency, engagement, management, and activity protected under worker-protection laws Agencies will likely adopt the Secretary of Labor’s guidelines, as appropriate and consistent with applicable laws. We can also expect guidance on AI workforce development, as well as employee monitoring, which would ensure that workers whose...

Ignorance Isn’t Bliss: Federal Sanctions Imposed for Party’s Failure to Timely Search Its Email Server

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Posted in Legal Decisions & Court Rules

On October 20, 2023

A recent decision from the Eastern District of Pennsylvania underscores an important lesson on attorneys’ duty of competence, which requires a practical and well-rounded understanding of technology in order to execute their clients’ e-discovery obligations. Indeed, as Ondigo LLC v. intelliARMOR LLC reflects, ignorance of the various sources of e-discovery cannot shield attorneys or parties from sanctions under Federal Rules of Civil Procedure 26(g) or 37(e).

Of All People…: DC District Court Hits Experienced Litigator Defendant With Terminating Sanctions for Failure to Preserve

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

On October 5, 2023

In yet another cautionary tale displaying how seriously attorneys and clients must take discovery obligations, United States District Court Judge Beryl A. Howell entered a very rarely imposed default judgement against famed former U.S. Attorney and Mayor Rudy Giuliani for failure to preserve discovery in a defamation suit. Judge Howell’s opinion in Freeman, et al. v. Giuliani represents a blunt condemnation of discovery gamesmanship that is part of a growing number of cases that impose the most severe sanctions for failure to comply with preserving electronic evidence. In 2021, plaintiffs Ruby Freeman and Wandrea’ ArShaye Moss brought suit against defendant Giuliani for defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damage claims. In response to the plaintiffs’ first set of discovery requests, Giuliani – an attorney for over 50 years – served an “initial production of 193 documents [that was] largely a single page of communications, blobs of indecipherable data, a sliver of the financial documents.” After the plaintiffs’ repeated inquiries into his preservation efforts and the court’s intervention, Giuliani issued a sworn declaration providing that his only preservation effort was turning off the auto-delete function on a nondescript list of devices and social media and email accounts. Given Giuliani’s admitted “preference to concede plaintiffs’ claims rather than produce discovery in this case,”...

District Court Affirms United States Copyright Office’s Denial of Copyright Registration for AI-Generated Visual Art

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Posted in Class Action Defense / Privacy Class Actions

On October 2, 2023

Pursuant to the Copyright Act of 1976, “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” are eligible for immediate copyright protection, provided certain requirements are met. Against this backdrop, Stephen Thaler applied for copyright registration with the United States Copyright Office (USCO) of a piece of visual art produced by a generative artificial intelligence system he created – the “Creativity Machine.” The USCO subsequently denied the application, reasoning that Thaler’s work “‘lack[ed] the human authorship necessary to support a copyright claim,’” as “copyright law only extends to works created by human beings.” After Thaler filed suit against the USCO, both parties moved for summary judgment on the sole issue of whether a work generated entirely by an artificial system should be eligible for copyright protection. On August 18, 2023, in Thaler v. Perlmutter the United States District Court for the District of Columbia granted the USCO’s motion for summary judgment, concluding that “human authorship is an essential part of a valid copyright claim.” The court rejected as contrary to the Copyright Act’s plain language Thaler’s contention that because he created the AI system that “autonomously” produced...

Baxalta Inc. v. Genentech, Inc.: The Federal Circuit Addresses Enablement After Amgen v. Sanofi

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Posted in Biotech / Patent / Pharmaceuticals

On September 28, 2023

Baxalta Inc., v. Genentech, Inc., Appeal No. 2022-1461 (Fed. Cir. Sept. 20, 2023) is another in the line of cases where claims to biological compounds are drafted functionally and raise §112 issues. This decision was an appeal from a grant of summary judgment that held certain claims of Baxalta’s ‘590 patent invalid for lack of enablement. The technology involved antibodies for enhancing the mechanism for blood clotting to treat patients with hemophilia type A. Claim 1 of the patent recited “[a]n isolated antibody or antibody fragment thereof that binds Factor IX or Factor IXa and increases the procoagulant activity of Factor IXa.” (Emphasis added). The claim is drafted functionally; it describes what the antibody does, rather than what the antibody actually is, and it encompasses any antibody capable of achieving that function. The specification of the ‘590 patent disclosed only 11 actual antibodies that fell within the claim’s scope, and referred to generally known methods for producing and screening antibodies. Relying on the analysis provided by the Supreme Court’s recent decision, Amgen Inc. v. Sanofi, 598 U.S. 594 (2023), the court found that the ‘590 patent’s specification simply provided a roadmap for one to engage in the same iterative, trial-and-error process that the inventors used to find their 11 antibodies. It did not identify any common...

PTAB Finds Service of Complaint for Infringement Without Exhibits Does Not Trigger 35 U.S.C. § 315(b) Time Bar

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Posted in USPTO

On September 25, 2023

In Lightricks Ltd. v. Plotagraph, Inc., the Patent Trial and Appeal Board (PTAB or “Board”) recently clarified the standard for what triggers the 35 U.S.C. § 315(b) time bar for filing a petition for inter partes review. Section 315(b) requires that petitions for inter partes review be filed with the Board within “[one] year after the date on which the petitioner … is served with a complaint alleging infringement of the patent.” 35 U.S.C. § 315(b). In Lightricks v. Plotagraph, the Patent Owner (“PO”) argued that the petition at issue was filed outside of the one-year anniversary of the service of its complaint for infringement in the related federal district court action and was therefore time barred. The PO had attempted to serve its complaint at two of the petitioner’s office locations more than one year before the petition was filed. However, the exhibits to the complaint were not included in either of those two service attempts. The petitioner argued that the date of service for purposes of § 315(b) was the date that it filed a waiver of service with the district court, and that because the waiver of service was filed less than one year before the petition was filed, the petition was not time barred under § 315(b). The Board agreed with...

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