Science, Computers & Technology Civil Procedure

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The Revolution that Wasn’t: New Jersey’s Direct-To-Consumer Exception to the Learned Intermediary Doctrine

The learned intermediary doctrine – in which a manufacturer’s duty to warn runs to the physician, not to the patient – is one of the most potent weapons in the arsenal for a pharmaceutical or medical device manufacturer faced...more

Liability for Data Breach Involving Employee Information: Even the Federal Government and Third Party Vendors Are Not Immune

In what is quickly becoming the newest trending topic in class action litigation, another class action has been filed alleging the disclosure of employee personally identifiable information due to a cyber attack. This...more

Motion for Additional Discovery Seeking Details of Kyle Bass-led Coalition Partially Succeeds

We continue to monitor the various strategies and tactics being employed by pharma companies that have been targeted by the “Coalition for Affordable Drugs” – a group led by hedge fund manager Kyle Bass. In a recent decision,...more

OPM sued by workers’ union in proposed class action

The Office of Personnel Management (OPM) was sued this week in the D.C. federal court by its workers’ union the American Federation of Government Employees (AFGE). Significantly, the suit named OPM Director Katherine...more

Upper Tribunal Criticises FCA's Approach To Publicising Decision Notices

We consider here the decision of the Upper Tribunal (Tax and Chancery Chamber) in Bayliss & Co (Financial Services) Limited and Clive John Rosier v the Financial Conduct Authority [2015] UKUT 0265 (TCC) in which the tribunal...more

Amarin Pharma v. FDA – More Briefs Filed Regarding Off-Label Promotion And The First Amendment

Our prior posts looked at the Amarin Pharma, Inc. v. United States Food and Drug Administration lawsuit, which raises issues regarding the First Amendment and how it applies to speech by drug and device manufacturers...more

Only Basic Functions of a Processor Avoid Need for Disclosed Algorithm - EON Corp. IP Holdings LLC v. AT&T Mobility LLC

Addressing the question of what corresponding structure must be disclosed to support a means-plus-function claim element, the U.S. Court of Appeals for the Federal Circuit upheld a district court finding that eight...more

No Induced Infringement Where Off-Label Use of a Drug Is Not “Inevitable” - Takeda Pharms. U.S.A., Inc. v. West-Ward Pharm. Corp.

Finding that a drug label’s language did not rise to the level of “active encouragement” that would induce doctors to infringe, the U.S. Court of Appeals for the Federal Circuit upheld the district court’s denial of a...more

News from Abroad: Ariosa Diagnostics V Sequenom and Isis Innovation -- A European View

The June 12, 2015 decision of the Federal Circuit in the above case has been discussed by Kevin Noonan in his posting of 22 June, but it is believed that the factual and legal background could benefit from further discussion....more

Activities For sNDA and Citizen’s Petition Protected by “Safe Harbor” - Classen Immunotherapies, Inc. v. Elan Pharmaceuticals,...

In a case addressing the “safe harbor” provision of 35 U.S.C. § 271(e)(1), the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s ruling that information submitted to the U.S. Food and Drug...more

Federal Circuit Invalidates Another Diagnostic Patent

In Ariosa Diagnostics, Inc. v. Sequenom, Inc., Slip Op. 2014-1139, 2014-114 (Fed. Cir. June 12, 2015), the U.S. Court of Appeals for the Federal Circuit held that Sequenom’s U.S. Patent No. 6,258,540 (the ‘540 Patent) was...more

Federal Circuit Affirms Dismissal on Grounds of Patent Ineligibility

On June 23, 2015, the Federal Circuit affirmed the finding of the U.S. District Court for the Northern District of California (“District Court”) dismissing the complaints in four related actions for infringement of U.S....more

Markman Decision Issues In Dispute Relating To A Method For Representation Of Space-Related Data Of An Object

ART+COM Innovationpool GmbH v. Google Inc., C.A. No. 14-217 – RGA, June 26, 2015. Andrews, J. The court considers 14 terms from the patent-in-suit. Oral argument took place on May 12, 2015....more

Intellectual Property Alert: Federal Circuit Holds Claims Indefinite Based on Prosecution History in Teva Pharmaceuticals USA v....

On June 18, 2015, the United States Court of Appeals for the Federal Circuit released its decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. The case was on remand from the Supreme Court, which vacated the Federal...more

Teva Standard of Review Becomes Outcome-Determinative in Fed. Circuit Ruling Last Week

Earlier this year in Teva Pharmaceuticals USA v. Sandoz, Inc., 135 S. Ct. 831 (2015), the Supreme Court changed the appellate standard of review for claim construction decisions. The Court held that while claim construction...more

Certification Unhealthy: Ninth Circuit Vacates Order Certifying Class of Dietary Supplement Purchasers

The Ninth Circuit vacated a class certification order issued by the Central District of California, finding that common issues did not predominate because plaintiff had failed to demonstrate that the alleged misrepresentation...more

The Federal Circuit Alters the Means-Plus-Function Analysis

The Federal Circuit’s recent en banc opinion in Williamson v. Citrix Online, LLC, 2015 U.S. App. LEXIS 10082, *2 (Fed. Cir. June 16, 2015) (Williamson II) may result in courts finding that more claims include...more

#AliceStorm In June: A Deeper Dive into Court Trends, and New Data On Alice inside the USPTO

The most important thing that happened in June was not the invalidation of yet another pile of patents, but the rather more consequential decision of the Supreme Court to recognize the right of same-sex couples to marry. ...more

Privacy & Cybersecurity Update - June 2015

In This Issue: - USA Freedom Act Brings Changes to Surveillance Program - Connecticut Enacts Bill Imposing Tighter Data Security Obligations - Pennsylvania Court Dismisses Data Breach Negligence...more

Is An Offer Of At-Will Employment Adequate Consideration For A Non-Compete? Recent Court Rulings Split Three Ways

Three very recent decisions reflect the irreconcilable division of judicial authority regarding the adequacy of at-will employment as the sole consideration for an otherwise valid non-compete. Compare (a) Standard Register...more

Theratechnologies Inc. V. 12185 Canada Inc: Supreme Court Of Canada Raises The Bar For Obtaining Leave To Bring Secondary Market...

In Theratechnologies inc. v. 12185 Canada inc., the Supreme Court of Canada has ruled that requirements that plaintiffs demonstrate that their claims have been brought in good faith and have a reasonable chance of succeeding...more

Lessons From the Rare Grant of an IPR Motion to Amend

Although many Patent Owners have complained about the high hurdles for amending claims in an IPR, the Board’s decision in Riverbed Technology, Inc. v. Silver Peak Systems, Inc. IPR2013-00403 shows that the requirements are...more

The Computer Fraud and Abuse Act and the “Cannibal Cop”: Awaiting the Second Circuit’s Decision

The Computer Fraud and Abuse Act began as a federal criminal statute, but it has turned into an oft-used weapon in civil litigation. See U.S.C. § 1030, et seq. (CFAA). Now, criminal and civil litigants await the Second...more

Supreme Court Rejects Google’s Appeal in Java API Dispute

On June 29th, the Supreme Court denied certiorari in Google’s appeal of the Federal Circuit’s 2014 ruling that that the declaring code and the structure, sequence, and organization of 37 Java API packages are entitled to...more

U.S. Supreme Court No Help to Google in API Copying Case

Back in October 2014, the U.S. Supreme Court was asked to take up the appeal for Oracle v. Google (Oracle America, Inc. v. Google Inc.). This case offered the Supreme Court a chance to weigh in on the IP protections afforded...more

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