Administrative Agency Updates

Read need-to-know updates, commentary, and analysis on Administrative Agency issues written by leading professionals.
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Employment Law Alliance’s Higher Education Council Files Amicus Brief with NLRB in Graduate Workers of Columbia v. Trustees of...

A trio of law firms, representing more than a dozen firm members of the Higher Education Council of the Employment Law Alliance (ELA), have filed an amicus curiae brief with the U.S. National Labor Relations board in the...more

Patent Owner Must Show Patentability Over Art of Record to Amend Claims in IPR

In In re Aqua Products, Inc., [2015-1177] (May 25, 2016), the Federal Circuit affirmed the PTAB’s denial of the patent owner’s motion to amend in IPR2013-00159. The Federal Circuit made quick work of the PTAB’s placing...more

New York City Tribunal Rejects City’s Attempt to Forcibly Combine Bank and Its Mortgage Subsidiary

The New York City Tax Appeals Tribunal, affirming a determination of an Administrative Law Judge, has held that Astoria Bank, which engaged in a banking business in New York City, was not required to include in its combined...more

State Water Board Nixes Flawed “One Size Fits All” Conservation Mandates

On May 18, 2016, the California State Water Resources Control Board (State Water Board) adopted new emergency conservation regulations that repeal and replace its prior drought regulations. The new regulations, which are...more

Spring Forward: Constructive Discharge Clock Doesn’t Start Until Employee Gives “Definite Notice” of Intent to Resign

On May 23, 2016, the Supreme Court resolved a circuit split over the deadline for employees to pursue their administrative remedies in connection with constructive discharge claims under Title VII. Generally, employees must...more

U.S. Citizenship and Immigration Services published a policy memorandum in the decision of Matter of Z-A, Inc.

On April 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a policy memorandum designating the decision of the Administrative Appeals Office (AAO) in Matter of Z-A-, Inc. as an adopted decision...more

CMS Announces Plans to Streamline the Stark Self-Referral Disclosure Protocol

On May 6, 2016, CMS published a notice (Notice), required under the Paperwork Reduction Act (PRA), seeking public comment on its plans to revise the information collected under the Medicare Self-referral Disclosure Protocol...more

AT&T Mobility LLC v. Intellectual Ventures II LLC (PTAB 2016)

Directory Assistance Call Completion Is Not A Financial Service for CBM Purposes - On May 4, 2016, the USPTO Patent Trial and Appeal Board (PTAB) issued a decision denying institution of a Covered Business Method (CBM)...more

Food and Beverage News and Trends - May 2016 #2

Report finds no danger to human health in consumption of GMOs. In a 388-page report released May 17, the National Academies of Sciences, Engineering and Medicine said it has found no evidence of adverse health effects in...more

OIG Updates Permissive Exclusion Criteria – Suggests Compliance Programs Are Expected

On April 18th, the Office of Inspector General (OIG) issued updated guidance describing the factors it will consider in determining whether to exercise its permissive authority to exclude individuals and entities from federal...more

PTAB Reversed for Failing to Explain “Why” a Person of Skill Would Modify the Prior Art

It is no secret that patent owners have, on average, struggled at the PTAB over the last three and a half years. Some practitioners say that a reason for this result is that the Board many times takes an aggressive approach...more

Federal Court Allows the EEOC to Conduct Investigation on Employer’s Premises Without Employer Consent or a Warrant

Many employers are familiar with the fact that the EEOC regularly conducts on-site workplace investigations after receiving charges of discrimination or harassment. A recent federal court decision, however, may lead to an...more

FDA releases long-awaited nutrition facts panel, serving size final rules: key changes to food labels

The FDA has released the long-awaited Nutrition Facts Panel and Serving Size Final Rules, after initially proposing the changes in March 2014. The associated label changes, which mark the first time since 1993 that the...more

PTAB Institutes IPR on Humira Patent

As we previously reported, the PTAB instituted IPR on U.S. Patent 8,889,135, which is drawn to a method of treating rheumatoid arthritis (“RA”) with Humira®, a TNFa-inhibitor. Claim 1 is directed to “A method for treating...more

Fourth Circuit Upholds Four-Year Front-Pay Award To Whistleblower

On May 20, 2016, the Fourth Circuit affirmed the decision of the ARB, finding that a former employee of Deltek, Inc. (Company) was retaliated against in violation of Section 806 of SOX and entitled to four years’ worth of...more

Patient and Provider Groups Urge FDA to Institute Meaningful and Memorable Names for Biosimilars

A coalition of patient and provider groups sent an open letter to Leah Christl, FDA’s associate director for therapeutic biologics and biosimilars, urging FDA to use meaningful names for biosimilars instead of random ones. ...more

FDA issues guidance on the use of EHRs in clinical investigations

The U.S. Food and Drug Administration (FDA) just issued draft guidance on the Use of Electronic Health Record Data in Clinical Investigations for comment within the next 60 days. The guidance is intended to assist all...more

CMS Announces Risk-Based Adjusted Additional Documentation Request Limits for Institutional Providers

On May 3, 2016, CMS announced the availability of a revised method to calculate additional documentation request (ADR) limits for Institutional Providers in the Recovery Audit Contractor (RAC) Program. Under the new method,...more

Hope For Software Patents In The Post-Alice Landscape

The courts have long been attempting to establish an appropriate framework with which to handle software-based inventions. Even before the Supreme Court decision in Alice Corp. v. CLS Bank International numerous tests have...more

Court Declines to Modify Judgment Based on Collateral Proceedings before the PTAB Finding Claims of Patent-In-Suit Invalid

Summary: In the decision referenced below, the court declined to modify a judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure even though the PTAB had found several claims of the patent-in-suit...more

The Problem of Wearing Two Caps Simultaneously – Part I

A favorite teaching tactic in legal ethic courses is putting on and taking off different caps to illustrate the different roles lawyers play in various relationships. This “on again/off again” routine demonstrates that the...more

IPR Motions to Amend: Rays of Hope Despite Gloomy Statistics

The America Invents Act permits patent owners to move to amend claims of a patent subject to inter partes review. However, attempts to amend claims have been largely unsuccessful to date, and some of the hurdles patent owners...more

Privacy Best Practices for Commercial and Private Drone Use Adopted in NTIA Process

Consensus was reached in a proceeding of the National Telecommunications and Information Administration (NTIA) of the U.S. Department of Commerce on a set of privacy best practices for the commercial and recreational use of...more

USPTO Memo Updates Examiner Guidance On Subject Matter Eligibility In View Of Enfish

On May 19, 2016, just weeks after its May 2016 memorandum to examiners providing guidance on subject matter eligibility under § 101, the USPTO issued a new memo updating its guidance to examiners in view of the Federal...more

FAA announces more drone detection testing at JFK Airport

The Federal Aviation Administration (FAA) announced this week that it will be expanding its research on how to detect ‘rogue’ drones near airports. The FAA will join forces with other government agencies and academic partners...more

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