Gibbons Law Alert
On October 12, 2011, the Third Circuit weighed in on what it referred to as a “deep circuit split.” In Delalla v. Hanover Insurance, the Third Circuit joined a majority of the other circuit courts in adopting the “later-served defendant” rule for determining whether a removal petition is within the thirty-day limitation under 28 U.S.C. §1446(b).
Patent litigation has some eccentricities that, some say, require special attention in the court system. One historical effort to address this was the creation of the Federal Circuit in 1982 and the exclusive jurisdiction it possesses to hear patent litigation appeals from all district courts around the nation. This exclusive jurisdiction based on subject matter and not geographic location is fairly unique in the judicial system. Patent litigation often involves complex technical issues to determine patent invalidity and infringement, unique procedural devices (e.g. Markman hearings), and intricate legal issues with technical and economic underpinnings (inequitable conduct, price erosion, lost profits, etc.). For these reasons, patent litigants often prefer to have an experienced judge hear and manage the dispute so that the fairest outcome is had. To address and analyze these and other issues, on January 4, 2011, Congress created the “Patent Pilot Program.”
Everyone makes mistakes — even judges. And a recent ruling by the New Jersey Supreme Court in Lombardi v. Masso declared it well within a trial court’s discretion to correct its own error. Specifically, the Supreme Court held that a trial court can sua sponte revisit and vacate an interlocutory order (including one granting summary judgment) provided that specific procedures are followed. In so holding, the court rejected the argument that the law-of-the-case doctrine barred such reconsideration.
The SEC recently admonished its enforcement staff attorneys to cease any efforts to purge documents from investigative files amidst criticism that the agency wrongfully destroyed thousands of documents related to high profile enforcement matters, including major fraud investigations involving Wall Street banks. The cease order was disclosed in a letter last month from the SEC’s general counsel. The order was precipitated by a whistleblower — long-time SEC enforcement attorney Darcy Flynn — who advised key congressional representatives that the agency had destroyed thousands of investigative files from preliminary enforcement investigations (internally referred to as “MUIs” — or matters under inquiry).
On October 25, 2011, The Gibbons Institute of Law, Science & Technology and the New Jersey Intellectual Property Law Association are proud to present “The Ninth Annual Fall Lecture Series” featuring the Honorable Joel Pisano who will present his observations from the bench on two recent, much-awaited intellectual property law decisions: Therasense v. Becton Dickson and Microsoft v. i4i. In Therasense, the Federal Circuit finally resolved key inequitable conduct issues that had been in a state of vacillation for decades. In Microsoft, Justice Sotomayor presented the majority opinion on the standard of proof required for patent invalidity, a key consideration for all practitioners.
It is well-known that, generally, an arbitrator may award attorneys’ fees where the award is authorized by statute or where the parties have agreed that the prevailing party is entitled to fees. Nonetheless, parties in an arbitration often include a demand for attorneys’ fees as a matter of course even where neither circumstance exists. Depending upon the jurisdiction, this practice may have a negative impact.
The Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference for corporate counsel and information technology professionals on November 3, 2011, in the firm’s Newark, NJ office. Devoted to the latest developments in electronic discovery and corporate information management, this program will include speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judge John Hughes, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who will present and moderate panels are Task Force Chair, Mark S. Sidoti and Task Force members, Paul E. Asfendis, Melissa DeHonney, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan.
The Federal Circuit’s Myriad Genetics decision, Ass’n for Molecular Pathology v. U.S. Patent and Trademark Office, 99 U.S.P.Q. 2d 1938 (Fed. Cir. 2011), which invalidated most of the method claims in the patents at issue, brings to mind a concern about the value of method claims, particularly to the pharmaceutical industry. The Myriad Genetics patents at issue included two types of method claims relating to human genetics: one involved determining whether a female patient had abnormal BRCA1/2 genes by comparison of BRCA1/2 gene and BRCA 1/2 RNA from the patient’s tumor sample to those from a non-tumor sample; the second was an activity screening method for anticancer drugs that compared the growth of a host cell transformed with a cancer-causing BRCA gene in the presence and absence, respectively, of the test compound.
A lead plaintiff in a consumer class action who attempts to recant allegations in her complaint concerning the date she purchased the product at issue places her credibility in issue and, therefore, subjects her claim to unique defenses. Such a plaintiff may not be an adequate class representative under Rule 23(a)(4) and therefore may not be able to certify a class.
The National Labor Relations Board’s Acting General Counsel recently issued a report and press release summarizing the outcomes of recent NLRB cases involving employees’ use of social media and the legality of employers’ social media policies. Among the cases discussed in the report are several in which the Board found that provisions of employers’ social media policies violated Section 8(a)(1) of the National Labor Relations Act, which prohibits work rules that would “reasonably tend to chill employees in the exercise of their Section 7 rights” to engage in “concerted activities” for the purpose of “mutual aid or protection.”