Appeals Evidence

News & Analysis as of

Off The Record. Or Not?

In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more

Swearing Behind A Reference With Reasonably Continuous Diligence

In Perfect Surgical Techniques, Inc. v. Olympus America, Inc., the Federal Circuit vacated and remanded a USPTO Patent Trial and Appeal Board decision in an Inter Partes Review proceeding, finding that the PTAB imposed too...more

Federal Circuit Weighs in on Evidentiary Challenge in IPR, Reversing PTAB

More often than not, evidentiary issues in IPR proceedings fail to make headlines because the Board will structure its Final Written Decision to avoid evidentiary challenges. Findings that a party’s motion to exclude is...more

Evidence From LinkedIn, IMDB Used to Support Denial of Benefits

Be careful what you ask for. The Plaintiff in a recent case from the Central District of California learned that lesson when the Plan’s re-evaluation of her claim for benefits revealed that she was apparently working as a...more

Use of long-term climate projections for bearded seal listing not necessarily a bellwether for Endangered Species Act decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a...more

California Court of Appeal Affirms Decision to Exclude Evidence of the Amount Paid by a Medical Financing Company to a Personal...

In Moore v. Mercer (filed October 21, 2016, C073064), the California Court of Appeal, Third Appellate District, ventured “down the rabbit hole into the upside-down world of health care billing” and held that evidence of the...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19516 - Doe v. Boy Scouts of America Corp. SC19516 Concurrence - Doe v. Boy Scouts of America Corp. SC19516 Concurrence - Doe v. Boy Scouts of America...more

A Question of Timing – Social Security Disability Determinations and the Administrative Record

Seyfarth Synopsis: Court excludes evidence of Social Security disability award issued after the final decision issued on plaintiff’s claim for plan disability benefits. The decision accentuates the importance of fighting to...more

Summer Tendering Update: Reasonable Expectations and Negative Contingencies

A recent decision from the Alberta Court of Queen’s Bench and Court of Appeal in Elan Construction considered and clarified two aspects of tendering law....more

Eleventh Circuit Affirms Judgment Notwithstanding the Verdict in UIM Bad Faith Case

On Friday, September 30, 2016, the Eleventh Circuit Court of Appeal affirmed a renewed motion for judgment as a matter of law that had been granted by the Middle District Court of Florida in a uninsured/underinsured motorist...more

Third Circuit Upholds Dismissal of Doryx ‘Product Hopping’ Suit

On September 28, 2016, the Third Circuit issued an opinion in Mylan v. Warner Chilcott, upholding the Eastern District of Pennsylvania’s holding on summary judgement that Defendants’ “product hopping” conduct did not violate...more

Federal Circuit Review | September 2016

Claims Directed to Monitoring and Analyzing Data Held to Be Invalid under § 101 - In Electric Power Group, LLC v. Alstom S.A., Appeal No. 2015-1778, the Federal Circuit upheld the district court’s grant of summary...more

Software Patent Eligibility: Preemption Gets Starring Role at the Federal Circuit

The Supreme Court decision Alice Corp. v. CLS Bank, 134 S. Ct. 2347 (2014) pronounced, in no uncertain terms, preemption “drives” patent subject matter eligibility and its exceptions. But after Alice, it appeared preemption’s...more

Summary Judgment Horror Story For Stephen King’s Literary Agent

While many breach of contract cases are resolved by motions to dismiss or summary judgment, a recent decision from the Appellate Division, First Department, Kramer v. Greene, (1st Dep’t Aug. 11, 2016), has shown that when it...more

It was Error Not to Consider Secondary Considerations, But They Wouldn’t Have Made a Difference

In ClassCo, Inc. v. Apple, Inc., [2015-1853] (September 22, 2016), the Federal Circuit affirmed a PTAB decision affirming an Examiner’s rejection of claims to a call-screening system that verbally announces a caller’s...more

Appellate Court Notes

Appellate Court Advance Release Opinions: AC37588 - Prime Locations of CT, LLC v. Rocky Hill Development, LLC - When a commercial condominium unit owner’s association refused to grant their approval for a...more

A Former Appellate Court Judge Offers Tips to Trial Attorneys

While trial attorneys know they must preserve issues they wish to raise on appeal, they often overlook the basic steps required to help ensure appellate review. During more than 27 years on the bench, former Florida appellate...more

Substantial Evidence Supported Infringement of Limitations That Did Not Need Construction

In Lifenet Health v. Lifecell Corporation, [2015-1549](September 16, 2016) the Federal Circuit affirmed the district court’s judgment that the claims of U.S. Patent No. 6,569,200 on plasticized soft tissue grafts suitable for...more

John Edwards argues before the Texas Supreme Court on important libel case that started in 2003

Houston partner John K. Edwards recently argued before the Texas Supreme Court on behalf of a newspaper and reporter in an important libel case that started in 2003 concerning an article published in a Fort Bend County...more

Federal Circuit Overturns PTAB Denial of Motion to Amend Claims in IPR Proceeding

Veritas Technologies LLC v. Veeam Software Corp., No. 2015-1894 (Fed. Cir. Aug. 30, 2016). On recurring controversy in AIA trials is the difficulty patent owners face meeting the PTAB’s strict requirements for amending...more

“Convincing Mosaic” Busted: Seventh Circuit Shatters Summary Judgment Standard for Discrimination Claims

Seyfarth Synopsis: In a recent decision, the Seventh Circuit clarifies that plaintiffs need not present a “convincing mosaic” of direct or indirect evidence of discrimination to withstand summary judgment. Rather, the...more

Defence & Indemnity - August 2016: II. LIABILITY ISSUES #1

A. Reverse Onus Provisions of the Traffic Safety Act: Section 186 of the Traffic Safety Act applies over Section 185 in accidents involving a motorist and a non-motorist (such as a pedestrian or cyclist). Section 185 applies...more

FRANCHISEE 101: How Far Do Earnings Projections Go?

A franchisor is allowed to make "financial performance representations" in its disclosure documents. These figures may project how much money a franchisee is likely to make and can play a critical part in the franchisor's...more

Consumer Financial Services Newsletter - August 2016

Seventh Circuit Rules: Filing a Proof of Claim for Old Debt Is Okay — Circuits Split - Owens et al. v. LVNV Funding LLC et al., Nos. 15-2044, 15-2082, 15-2109 (7th Cir. Aug.10, 2016) - In Owens v. LVNV Funding LLC,...more

Personal Injury – Auto – Damages and Stipulation as to Liability

Christ v. Schwartz - Court of Appeal, Fourth Appellate District (August 12, 2016) - In a personal injury action, a defendant may wish to stipulate to liability where there is no real dispute as to who was at fault...more

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