Administrative Agency Civil Procedure

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Federal Circuit Affirms PTAB’s Lack of Patentability Ruling in First-Ever AIA Review - In re Cuozzo Speed Techs., LLC

Addressing for the first time an appeal of an America Invents Act review decision out of the U.S. Patent and Trademark Office’s (PTO’s) Patent Trial and Appeal Board (PTAB or Board), the U.S. Court of Appeals for the Federal...more

ITC Pilot Program to Expedite Rulings on Whether Exclusion Orders Cover Redesigns and New Products

On February 24, 2015, the ITC announced a new pilot program to decide whether redesigns or new products are covered by ITC exclusion orders. The announced goal of the program is to test the use of expedited procedures for the...more

Gilead Sciences, Inc. v. Lee (Fed. Cir. 2015) - Filing of IDS after Response to Restriction Requirement Constitutes Failure to...

Last week, in Gilead Sciences, Inc. v. Lee, the Federal Circuit affirmed the decision by the District Court for the Eastern District of Virginia granting summary judgment to the Director of the U.S. Patent and Trademark...more

Supreme Court Denies Antitrust Shield for NC Dental Board

On Wednesday, February 25, 2015, the Supreme Court released a 6-3 decision in North Carolina Board of Dental Examiners v. Federal Trade Commission, a case with potentially broad implications for regulation by dental and...more

Supreme Court: State Agencies Controlled by Active Market Participants Must Have Active State Supervision to Qualify for Antitrust...

In a 6–3 decision issued February 25, 2015, the Supreme Court of the United States held in North Carolina State Board of Dental Examiners v. Federal Trade Commission that if active market participants control an entity—even a...more

U.S. Supreme Court Holds That to Invoke Antitrust Immunity, State Agencies Controlled by Market Participants Must Prove Active...

On Feb. 25, 2015, the U.S. Supreme Court held in a 6-3 decision that a state board with a controlling number of decision-makers who are active market participants in the occupation the board regulates does not enjoy state...more

Supreme Court Holds State Regulatory Board Not Immune From Antitrust Laws

On February 25, 2015, the U.S. Supreme Court determined that the North Carolina State Board of Dental Examiners (“Dental Board”) is not shielded from federal antitrust law under the doctrine of state-action antitrust...more

E-Discovery and Information Management: New Email Retention Policy for New York State Heightens the Need to Timely Serve...

According to recent media reports, New York State has now implemented the 90-day email retention policy that was previously announced by the Cuomo Administration in June 2013. The reports indicate that various state agencies’...more

Amending Claims Before the PTAB: What Have We Learned From the Board?

When Congress enacted the America Invents Acts in 2011, they created three new mechanisms to challenge issued claims at the Patent Office – Covered Business Method patent review, Post-Grant Review, and Inter Partes Review...more

Glenmark Generics Ltd. v. Ferring B.V.,

Case Name: Civ. No. 3:14-cv-422-HEH, 2014 U.S. Dist. LEXIS 146528 (E.D. Va. Oct. 14, 2014) (Hudson, J.) (Where patent holder disclaims patent and asks FDA to delist, but patent remains in Orange Book, declaratory judgment...more

PTAB Allows Petitioner to Join Its Own Previously Filed Inter Partes Review

In Target Corp. v. Destination Maternity Corp., IPR2014-00508, the Patent Trial and Appeal Board (PTAB) granted Target Corporation’s Request for Rehearing on its previously denied Motion for Joinder, and ultimately granted...more

US Supreme Court: state agencies must be "actively supervised" to enjoy antitrust immunity – 5 tips

Do you sit on a state board or are you regulated by one? If so, the United States Supreme Court decided a case last Wednesday that directly affects you. Until recently, many assumed that a state agency or board enjoyed...more

Patent Trial and Appeal Board - Multi-Petition Challenges of a Patent

Background – Multiple Petitions - Multiple Petition Filings in PTAB Trials (IPR/PGR/CBM) - •The statutes for IPR, PGR and CBM do not provide many limits on filing of petitions –Numerous patents have been...more

Fourth Circuit Slaps EEOC for Use of Misleading, Incomplete and Error-Riddled Expert Testimony

Several years ago, the Equal Employment Opportunity Commission set discriminatory use of criminal and financial background checks as a top enforcement priority. These cases are brought under the disparate impact theory,...more

Virginia Supreme Court Opinions Affecting Local Government Law – February 26, 2015

This term resulted in two cases which, in our opinion, affect Virginia local government law.  One, decided by order, deals with the effect of a failure to name a necessary party (a governing body) in appealing a BZA decision....more

Is Anything Fishy With The SEC’s Whistleblower Inquiries?

Yesterday, Rachel Louise Ensign of The Wall Street Journal wrote that the SEC recently sent letters “to a number of companies asking for years of nondisclosure agreements, employment contracts and other documents”.  According...more

District Court Denies Motion to Lift Stay Pending Inter Partes Review Even Where Plaintiff Agreed to Not Pursue Claims That Were...

Barco filed a patent infringement action in September 2011 against Defendants Eizo Nanao Corporation and Eizo Nanao Technologies, Inc. ("Eizo"), alleging that Eizo infringed various claims in U.S. Patent No. 7,639,849 (the...more

Limitations on New Arguments and Legal Authority Presented at Oral Hearing - Intri-Plex Technologies Inc. v. Saint-Gobain...

The U. S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB or Board) provided further guidance as to what new matter may properly be raised during oral argument, explaining that parties may not present new...more

Texas Supreme Court Oral Argument Preview (2/15)

On Thursday, February 26, 2015, the Texas Supreme Court will hear oral arguments in two cases. Note that the Court is doing a road show and hearing these arguments at the University of Texas at Tyler. ...more

Texas Supreme Court Relaxes Its Grip on the Discovery Rule

The Texas Supreme Court – that elephants’ graveyard of claims and causes of action – has sided with a lessor-plaintiff who relied on the discovery rule to defeat a limitations defense. For the many with low expectations when...more

Who You Gonna Call? The Board!

The PTAB issued an order providing guidance for responding to potential witness coaching during a deposition recess. Cases IPR2014-00411 and IPR2014-00434 – FLIR Systems, Inc. v. Leak Surveys, Inc. - In an inter...more

Divided Federal Circuit Panel Upholds Patent Office’s “Broadest Reasonable Interpretation” Standard for Construing Claims in...

In a 2-1 decision in In re Cuozzo Speed Technologies LLC, No. 14-1301 (Fed. Cir. Feb. 4, 2015), the Federal Circuit recently held that the Patent Office may apply the “broadest reasonable interpretation” standard to construe...more

Supplementing Information - Post-Institution Pacific Market International, LLC v. Ignite USA, LLC

Addressing a motion to submit supplemental information after institution, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) granted the motion, finding that the information—a supplemental...more

Food Litigation Newsletter - February 2015 #2

In This Issue: - RECENT SIGNIFICANT RULINGS ..D.C. Circuit Affirms FTC’s False Advertising Ruling Against POM Wonderful ..Muffin Mix Class Action Survives Dismissal ..Federal Court Denies...more

Declarant Must Be Made Available for Deposition in the United States - Square, Inc. v. REM Holdings 3, LLC

Addressing the location of a deposition of patent owner’s declarant, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB or Board) concluded that, absent an agreement between the parties to...more

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