Administrative Agency Updates

Read need-to-know updates, commentary, and analysis on Administrative Agency issues written by leading professionals.
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MarkIt to MarketTM - June 2016

The June 2016 issue of Sterne Kessler's MarkIt to MarketTM newsletter discusses the rise in additional specimen requests from the USPTO, examines the TTAB's decision in In re Florists' Transworld Delivery, Inc., and notes...more

SEC Charges Private Fund Administrator with Gatekeeping Failures

The Securities and Exchange Commission (SEC) announced two administrative settlements in June with a fund administrator that provided accounting and fund administration services to several private funds based on its alleged...more

Also In The News - Health Headlines - June 2016 #3

OMB Reviewing Proposal on Handling of 340B Disputes -- On June 15, 2016, the Office of Management and Budget (OMB) started its review of a proposed rule under the 340B discount program, according to the OMB’s website. Under...more

Employment Law - June 2016 #3

LA Doubles Down on Sick Leave, Minimum Wage Increase - Why it matters - Already facing new California employment-related requirements—including the adoption of mandatory sick leave and an uptick in the minimum...more

Former City Link workers awarded 90 days' pay

Many will recall that former City Link workers were successful in proving that City Link failed in its statutory duty to consult with them about impending redundancies. The Employment Tribunal (ET) has now ordered that those...more

Dilution Update: NYC BEER Is Not Diluted, But The Empire State Building Is

Trademark dilution is a concept not easily understood. Although, we have written about this topic in previous posts, a recent decision by the Trademark Trial and Appeal Board, ESRT Empire State Building, L. L. C. v. Michael...more

Once again, retained rights in federally funded, patented drugs will not be asserted to control price

In a previous alert, "What you need to know about retained rights in federally funded patented drugs" (March 24, 2016), we provided background on the US Department of Health and Human Services' and the National Institutes of...more

Commercial Drones Set To Take Flight

On June 21, 2016, the Federal Aviation Administration (FAA) unveiled a landmark set of new rules for the commercial operation of small Unmanned Aircraft Systems (sUAS), more popularly known as drones. The new rules will take...more

Status Quo at the PTAB for Now: Supreme Court Makes No Change to IPR; Judicial Review and Claim Construction Standard Remain the...

The Supreme Court’s decision will not likely change much in the near term — especially in light of the fact that it made no express changes to PTO procedure for and regulations governing IPR. Last week, the U.S. Supreme...more

PTAB Can Rely Upon Prior Art Not Cited in an IPR Institution Decision to Establish the State of Art

The Federal Circuit affirmed the PTAB’s final determination in Genzyme Therapeutic Products Limited Partnership v. Biomarin Pharmaceutical Inc., Nos. 2015-1720, 2015-1721 (Fed. Cir. June 14, 2016), holding that the PTAB did...more

No Longer Business-As-Usual for the CPUC?

Proposed legislation promises to change the meaning of business-as-usual for the California Public Utilities Commission. After rejecting CPUC reform in October, Gov. Jerry Brown aligned with Assemblymember Mike Gatto...more

Busy Supreme Court Docket In Intellectual Property Highlighted By Cases On Enhanced Damages, Attorney's Fees, Claim Construction...

In June 2016, the U.S. Supreme Court handed down a decision in Halo Electronics v. Pulse Electronics (14-1513), in which it addressed the Federal Circuit's test for determining whether enhanced damages should be awarded for...more

Governor Signs Law Giving California Labor Department Greater Role in PAGA Suits

On June 27, 2016, California Governor Jerry Brown signed into law a set of amendments to California’s Labor Code Private Attorneys General Act (PAGA) that will expand labor officials’ involvement in PAGA claims. PAGA gives...more

Supreme Court Deals Blow To Diagnostic Method Patents, Denies Cert In Sequenom

“If you can’t say something nice, don’t say anything at all” can be good words to live by, but in the context of the Supreme Court’s denial of certiorari in Sequenom, the silence is deafening–and could have a chilling impact...more

New USCIS Policy Decision Broadens Permissible Bases for Visa Transfer of Multinational Managers

After four years of internal deliberations, U.S. Citizenship & Immigration Services (USCIS) recently issued a policy memorandum binding all USCIS personnel to follow the reasoning of a 2013 USCIS Administrative Appeals Office...more

FDA’s Final Guidance on Menu-Labeling Regulations and What It Means to Hotel Owners and Operators

Regular readers of this blog will know that we have been following the development and implementation of the FDA’s new menu-labeling regulations with some interest. After multiple rounds of drafts and public comment periods,...more

Payment Processor Hit With CFPB Action

A payment processor and two executives were the subject of a new Consumer Financial Protection Bureau (CFPB) action, with the Bureau charging that the defendants enabled their clients to make unauthorized withdrawals from...more

AMA Demands Appeals Process for Physician Payment Rates

On June 14, 2016, during its annual meeting in Chicago, the American Medical Association’s (AMA) House of Delegates approved a resolution recommending the overhaul of CMS’s physician payment rate determination methodologies,...more

The ICO: A force to be reckoned with

From recent prosecutions it seems that the Information Commissioner's Office (ICO) is a body to be taken seriously. Not only has it continued to bring enforcement action against organisations for data protection breaches, it...more

Supreme Court Agrees to Hear Special Education Case

On June 28, the Supreme Court of the United States issued an order accepting to hear an appeal out of Michigan in the case Fry v. Napoleon Community Schools, No. 15-497, order granting cert, (June 28, 2016), that presents the...more

Federal Circuit Distinguishes “Motivation to Combine” from “Expectation of Success” for Obviousness Purposes

Addressing issues of obviousness and the proper scope of inter partes review (IPR) reply briefs, the US Court of Appeals for the Federal Circuit upheld a Patent Trial and Appeal Board (PTAB or Board) IPR decision finding the...more

State Water Board Issues New Proposed Permitting Procedures for Dredge and Fill to Waters of the State

On June 17, 2016, the State Water Resources Control Board (State Board) issued its much-anticipated draft “Procedures for Discharges of Dredged or Fill Materials to Waters of the State” (Draft Permitting Procedures). The...more

New Appointment Underscores SEC’s Focus on Cybersecurity Threats

On June 2, 2016, the SEC announced the appointment of Christopher Hetner as Senior Advisor to the Chair for Cybersecurity Policy. Hetner, who was formerly the Cybersecurity Lead for the Technology Control Program within the...more

Trademark Review | June 2016

Coca-Cola has Acquired Secondary Meaning in ZERO for Colas - In an opposition proceeding before the TTAB, Royal Crown (RC) and Dr. Pepper/Seven Up sought to prevent registration of seventeen applications filed by...more

Supreme Court Punts on Whether Service Advisors Are Exempt from FLSA Overtime Premium Pay

The United States Supreme Court recently issued its long awaited decision in Encino Motorcars, LLC v. Navarro. At issue in the case was whether “service advisors” employed by car dealerships are exempt from the Fair Labor...more

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