Gibbons Law Alert

Gibbons Law Alert Blog

Broader Coverage May Still Be No Coverage At All: The First Department’s Application of the Prior Pending Claim Exclusion

On October 23, 2012

The recent decision by New York’s Appellate Division, First Department in Executive Risk Indemnity, Inc. v Starwood Hotels & Resorts Worldwide, Inc., serves as a grim reminder to insureds to pay careful attention at the time of policy renewal to existing demands from third parties, applicable terms and conditions of expiring and renewal policies, differences in the scope of coverage, and appropriate disclosures. Those who do not run the risk of foregoing the insurance they thought they had without even realizing it.

Florida Joins the Growing Number of States That Have Adopted Specific Rules Addressing Electronic Discovery

by Robert D. Brown, Jr.

Posted in E-Discovery: Legal Decisions and Court Rules

On October 22, 2012

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

USPTO Extends Deadline for Commenting on First Inventor to File Provisions of the AIA to November 5, 2012

by Thomas J. Bean

Posted in Patent / USPTO

On October 19, 2012

On July 26, 2012, the U.S. Patent & Trademark Office (USPTO) published a notice of proposed rulemaking and a notice of proposed examination guidelines to implement the first-inventor-to-file (FITF) provisions of the AIA effective March 16, 2013. The notices set an initial comment deadline date of October 5, 2012. In response to requests for additional time to submit comments, the USPTO recently extended the comment deadline date to November 5, 2012.

Broken Record? Maybe, But Even Government Entities Cannot Escape the Failure to Preserve

by Jeffrey L. Nagel

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

On October 19, 2012

Obtaining electronic discovery from a city or municipality in civil litigation can be a slow process. But, in DMAC LLC and Fourmen Construction, Inc. v. City of Peekskill, plaintiffs’ task was made impossible because of the City of Peekskill’s failure to implement a “formal e-mail retention policy,” leaving it up to the “sole discretion” of City staff and elected officials whether to retain or delete their e mails. When the City and other defendants were sued in 2009 for stopping a real estate development project that began back in 2007, allegedly for political reasons, that lack of any e-mail retention policy came back to haunt the defendants.

Lack of Actual Notice Does Not Defeat Policy Exclusion When Insurer Made Sufficient Efforts to Provide Clear and Direct Notice of New Exclusion to Policyholder

by John T. Wolak

Posted in Insurance

On October 15, 2012

The recent decision in MDC Acquisition Co. v. North River Insurance Co., serves as a reminder of the impact that clear and direct notice of policy changes will have on the scope of available insurance coverage. Although rendered by the Northern District of Ohio, the decision is based upon generally accepted legal principles that apply in most jurisdictions and is noteworthy for both insurers and policyholders.

Patent Marking Under the America Invents Act – Virtual Marking

by Gibbons P.C.

Posted in Patent

On October 15, 2012

As practitioners know, U.S. patent law provides for the recovery of patent infringement damages for a period of time when an infringer has actual or constructive notice of the infringed patent. Actual notice is provided by way of letter or similar mechanism to the infringer after infringement has begun. Constructive notice can be provided by placing the patent number on the patented product. Such constructive notice provides notice to the infringer of the existence of a patent prior to actual notice, thereby extending the time period for recovering damages up to the date the infringement begins.

Third Circuit Affirms Plaintiffs’ Zero-Damages Antitrust Victory, Restricting the Scope of What Constitutes “Reliable” Expert Damages Data

by Kevin R. Reich

Posted in Antitrust

On October 12, 2012

The Third Circuit’s 94-page opinion in antitrust case ZF Meritor, LLC v. Eaton Corp., issued on September 28, 2012, offers something for everyone in its smorgasbord of holdings concerning the law of exclusive dealing, proof of damages, and Article III standing. The opinion is most notable for rejecting the notion that above-cost prices can render an otherwise unlawful exclusive dealing agreement lawful, reinforcing the viability of de facto exclusive-dealing arrangements under Sections 1 and 2 of the Sherman Act, and ratcheting up the gatekeeper role courts play under Daubert.

No Fishing Expeditions Allowed When It Comes to Discovery of Social Media

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On October 12, 2012

A recent decision in California, Mailhoit v. Home Depot, U.S.A., Inc. et al., Civ. No. 11-03892 (D.E. 105, C.D. Cal. Sept. 7, 2012) reiterates the limits to which social media information is discoverable. Consistent with Fed. R. Civ. P. 26(b)(1) and 34, the Court made clear in the context of a motion to compel that “discovery requests for social networking site content must be reasonably calculated to lead to the discovery of admissible evidence and describe the information to be produced with ‘reasonable particularity.'”

Patent Classification Harmonization

by Gibbons P.C.

Posted in USPTO

On October 11, 2012

The United States Patent and Trademark Office (USPTO) and the European Patent Office (EPO) jointly launched the Cooperative Patent Classification System (CPC) and released a finalized set of CPC definitions. The CPC is operational at both the EPO and USPTO. The USPTO and EPO developed the CPC with the collaborative aim of producing a common classification system for technical documents. The CPC brings the promise of transparent and harmonized global classification for patent documents.

CAFC Reverses Inequitable Conduct Finding: Outside The Box Innovations v. Travel Caddy

by Charles H. Chevalier

Posted in Patent

On October 9, 2012

The Federal Circuit recently reversed the Northern District of Georgia’s judgment of unenforceability based on inequitable conduct, in Outside The Box Innovations, LLC v. Travel Caddy, Inc. Other aspects of the decision are outside the scope of this blog. In reversing, and citing last year’s en banc decision in Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011), the CAFC reiterated that to establish unenforceability based on inequitable conduct before the United States Patent and Trademark Office (“PTO”), a party must prove by clear and convincing evidence that (1) information material to patentability was withheld from the PTO, or material misinformation was provided to the PTO, and that such act was done (2) with the intent to deceive or mislead.