Civil Procedure Updates

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General “Desire” to Improve Can Provide Sufficient Rationale to Combine References

Pointing to the “normal desire” of scientists to improve what is already known as a rationale to combine, the US Court of Appeals for the Federal Circuit affirmed the Patent Trial and Appeal Board’s (PTAB’s) inter partes...more

Medicare Advantage Plans Under Siege: Another Whistleblower Lawsuit

In a court decision last year in Swoben v. United Healthcare, the United States Court of Appeals for the Ninth Circuit held that an allegation – that a Medicare Advantage Plan performed a “biased” HCC-RAF retrospective...more

Annual Report on EEOC Developments – Fiscal Year 2016

This Annual Report on EEOC Developments—Fiscal Year 2016 (hereafter “Report”), our sixth annual Report, is designed as a comprehensive guide to significant EEOC developments over the past fiscal year. The Report does not...more

Rejecting Pendency of Related Cases as a Dominant Factor, Federal Circuit Orders ED Texas to Transfer Patent Infringement Case to...

In re Google, Inc., Case No. 2017-107 (Fed. Cir. Feb. 23, 2017)(nonprecedential). The U.S. Court of Appeals for the Federal Circuit issued a writ of mandamus ordering the U.S. District Court for the Eastern District of...more

DC Circuit Enforces Escobar’s Materiality Requirement

This week, the D.C. Circuit added to the post-Escobar, materiality jurisprudence with its opinion in United States ex rel. McBride v. Halliburton Co., No. 15-7144 (Feb. 17, 2017). In its decision, the court affirmed the...more

Alleging a Negative: The Challenges of Bringing a Refusal-to-Deal Claim

What does to take to state a claim under Section 2 of the Sherman Act for refusal to deal? Last week’s decision in Viamedia, Inc. v. Comcast Corp. and Comcast Spotlight, LP, a case out of the Northern District of Illinois,...more

Multiple Actors May Perform Steps in Method Claims for Purposes of Inducement

Addressing the issue of divided infringement, the US Court of Appeals for the Federal Circuit affirmed the district court’s finding of induced infringement even though no single actor performed all steps of the asserted...more

Trade Secret Misappropriation in the World of Driverless Cars: Google versus Uber

On Thursday, Waymo LLC sued Uber Technologies and Ottomotto LLC in federal court in the Northern District of California for: (1) violation of the federal Defend Trade Secrets Act; (2) violation of California’s Uniform Trade...more

The Song says 2 out of 3 Ain’t Bad; The Supreme Court says 1 is not “Substantial”

In Life Technologies Corp. v. Promega Corp. [14-1538] (February 22, 2017), the Supreme Court reversed a Federal Circuit decision that supplying a single component of a multi-component invention from the United States is an...more

Employment Law - February 2017

Ninth Circuit Sends Employment Dispute to Arbitration - Why it matters - The U.S. Court of Appeals for the Ninth Circuit sent an employment dispute to arbitration, reversing a denial of the employer's motion to...more

News from Abroad -- Swiss-style Patent Claims Can Be Very Valuable in Australia

The scope for enforcement of Swiss-style claims may be broader in Australia than for method of medical treatment claims. Second medical use inventions can be claimed in an ever increasing number of claim formats depending on...more

Does the Show Stop For Appeal After a Court Compels Arbitration? The Federal Circuit Courts Are Split

Under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., if a District Court compels arbitration of all of the claims that are before it, and thereupon dismisses the suit, its order compelling arbitration is final...more

UK: Court of Appeal Reconsiders Test to Determine "Worker" Status

The gig economy is expanding fast. Although it brings great benefits, such as flexibility for companies and individuals, it also has generated concerns regarding workplace protections and social inequalities. In the UK, the...more

Texas Law Lets Attorney-Client Privilege Transfer to the Buyer of a Business

When negotiating the sale of a business, legal counsel should be aware that the attorney-client privilege protecting communications between the seller and its legal counsel – including negotiations regarding the acquisition –...more

Fair Play in Granting Area Variances on the Tennis Court and in the Judicial Court

The orientation of a tennis court in a north/south direction is a benefit to competitive players interested in fair tennis play. Even the Appellate Division, Second Department, agrees. To avoid the impact of sun glare, a...more

USPTO Standards of Review for Inter Partes Review Proceedings

The Administrative Procedures Act (APA) applies to Patent Trial & Appeal Board (PTAB) proceedings, and the Court of Appeals for the Federal Circuit (CAFC) is using the APA to check the PTAB’s tendency to invalidate claims....more

Product Liability Update: February 2017

California Courts Reject Speculative Evidence of Exposure to Asbestos from Contaminated Talc. In a new wave of asbestos-related personal injury litigation, plaintiffs allege that they were exposed to talc-containing products...more

On Alternative Design, Take Two - Negligence

Back in 2013, inspired by a win of our own that we were actually allowed to blog about, we put up a post entitled “On Alternative Design.” Taking the alternative design requirement for strict liability as a given, we...more

Matching Claim Language with Label Language Ensnares Infringers

On January 12, 2017, the U.S. Court of Appeals for the Federal Circuit issued an opinion affirming the judgement that Eli Lilly’s U.S. Patent No. 7,772,209 (“the ’209 Patent”) was valid and infringed under the doctrine of...more

Supreme Court of Pennsylvania Holds That Failure to File Brief in Support of Properly Filed Post-Trial Motion Does Not Waive...

In a recent decision, Board of Supervisors of Willistown Township v. Main Line Gardens, Inc., the Supreme Court of Pennsylvania unanimously held that a party does not waive all issues on appeal when it fails to file a...more

Pay Back to Big Corporations — Unneeded Laws

It seems when Congress tries to pass a law taking away peoples’ rights they tack on a title that sounds like they are just trying to “tidy up” or do us a favor. Such is the result of House bill H.R. 985, which they have...more

District Court Denies Request to Change Expert Date Based on Change in Defense Counsel

Plaintiff Genes Industry, Inc. ("Genes") filed a patent infringement action against Defendant Custom Blinds and Components, Inc. ("Custom"). The patent discloses a winding wheel for use on window coverings....more

The “D” in the ADA Still Exists, Court of Appeals Reminds Us

In 2009, Congress passed the Americans With Disabilities Amendments Act (ADAAA), unquestionably expanding the definition of a disability under the ADA and, for all practical purposes in most cases, shifting the focus of...more

Can I Trade the Station Wagon? The Acceptance-of-Benefits Doctrine

When can you accept benefits under a judgment while continuing to complain about it on appeal? Until recently, the answer has been “almost never.” ...more

District Court Stays Class Action in Favor of Arbitration

In Zambrana v. Pressler & Pessler LLP, the Southern District Court of New York stayed a putative class action against various creditors for alleged violations of the Fair Debt Collection Practices Act (FDCPA), referring the...more

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