Preponderance of the Evidence

News & Analysis as of

BioPharma Patents: Quick Tips & News - January 2016

Subject matter eligibility and “laws of nature.” As reported in our July 2015 newsletter, the Federal Circuit invalidated claims to a method of diagnosing fetal abnormalities without amniocentesis. This precedent—if it...more

New Year, New Fraudulent Transfer Law

It’s a new year, and we have a new law affecting debtors and creditors in California. Effective January 1, 2016, California’s Uniform Voidable Transactions Act (UVTA) has replaced California’s Uniform Fraudulent Transfer Act...more

Changes in California’s Fraudulent Transfer Law

QUESTION: I heard California’s fraudulent transfer law is being changed. How will the changes affect my ability to pursue fraudulent transfers as a receiver? ANSWER: Earlier this year the California legislature, based on...more

It Can Happen: PTAB Alters Final Written Decision on Rehearing - Square, Inc. v. REM Holdings 3, LLC

In a rare decision granting a petitioner’s rehearing request, the Patent Trial and Appeal Board (PTAB or Board) reversed its earlier position in a final written decision where it found that the petitioner had not shown that...more

Federal Circuit Addresses Substantial Evidence as Standard of Review in IPR

In June, 2014, the PTAB declared all challenged claims in two IPR trials brought by Gnosis S.p.A. to be unpatentable based on obviousness grounds. Gnosis S.p.A. v. S. Ala. Medical Science Found., IPR2013-00116 and Gnosis...more

New Pinellas County Wage Theft Ordinance Goes Into Effect January 1

The commissioners of Pinellas County recently adopted a wage theft ordinance that will become effective on January 1, 2016. The ordinance provides that if any employer fails to pay wages of at least $60 due to an employee 14...more

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to remove an action to federal court must provide sufficient...more

Threshold for Institution Is Preponderance of Evidence - Nestlé Purina Petcare Co. v. Oil-Dri Corp. of America

In a decision denying the patent owner’s request for rehearing, the Patent Trial and Appeal Board (PTAB or Board) explained that when instituting an inter partes review (IPR) on obviousness grounds, a petitioner must only...more

Preponderance Standard Applies to Ex Parte Re-examinations - Dome Patent L.P. v. Lee

Addressing the presumption of validity in ex parte re-examinations, the U.S. Court of Appeals for the Federal Circuit reiterated that the presumption of validity does not apply to patents under reexamination in the U.S....more

The New York City Commission on Human Rights Releases Enforcement Guidance on the Stop Credit Discrimination in Employment Act

Last week, the Stop Credit Discrimination in Employment Act became effective. It amended the New York City Human Rights Law to prohibit most employers from making employment decisions based on an employee or applicant’s...more

NYC Commission on Human Rights Releases Interpretive Enforcement Guide for the SCDEA

The Commission’s guide outlines narrow interpretation and recordkeeping requirements for employers seeking exemptions to the SCDEA, as well as guidance on enforcement and penalties for SCDEA violations....more

California’s New Voidable Transactions Act

California’s recently enacted Uniform Voidable Transactions Act (UVTA), makes it easier for creditors to recover assets that are transferred to third parties when a debtor is insolvent, even when there is no improper intent...more

New Specialized Knowledge Standards Coming for L-1B Transfers

Multinational companies wishing to transfer foreign national employees to the U.S. under the L-1B program will have to show the employee’s “specialized knowledge” by a “preponderance of evidence” under new guidance published...more

Lessons Learned From the 1st Successful Pharmaceutical IPR Defense of Orange Book Listed Patents

In three petitions filed on the same day in 2013, styled Amneal v. Supernus, Amneal filed what appears to be the first challenge of Orange Book listed pharmaceutical patents that led to institution followed by a final...more

Fraudulent Transfers Get an Update in California

Why it matters - With the enactment of the Uniform Voidable Transaction Act (UVTA) to supersede the Uniform Fraudulent Transfer Act (UFTA), California has put a fresh spin on the law of fraudulent transfers in the state....more

USCIS Proposes: L-1B Adjudications Policy

The Key – Applying the “Preponderance of the Evidence” standard”? Immigration practitioners are trying to figure out what to make of the proposed Policy Memorandum on L-1B Adjudications Policy (hereinafter “Guidance”)...more

Third Circuit Weighs In On Burden of Proof and Evidentiary Standards Applicable to Cases Removed Under CAFA

Days before the Supreme Court’s decision addressing the requirements for CAFA notices of removal in Dart Cherokee Basin Operating Co., LLC v. Owens, the Third Circuit addressed the evidentiary requirements for surviving a...more

Institution Decisions and Dispositions for September 19, 2014

Institution Decisions - In Mercedes-Benz USA, LLC v. American Vehicular Sciences LLC, IPR2014-00644, Paper 12 (September 19, 2014) the Board instituted inter partes review of claims 1–3, 11–20, 23, 27, 50, 51, 54, 60,...more

W.D. Wash. Adopts Preponderance of the Evidence Standard for Elements of Class Cert., Rejects Numerosity Experts

The Western District of Washington recently adopted a “preponderance of the evidence” standard for establishing the prerequisites of Federal Rule of Civil Procedure 23 and denied class certification in a TCPA case because the...more

The Burdens And Standards Of Proof And Review

I expect that that most lawyers can explain the difference between the “burden of proof” and the “standard of proof”. Some lawyers might be more challenged in distinguishing between “standard of proof” and “standard of...more

Weekly Law Resume: Plaintiff in FEHA Discrimination or Retaliation Claim Must Prove by Preponderance of the Evidence That...

Lorena Alamo v. Practice Management Information Corporation - California Court of Appeal, Second Appellate District (August 21, 2013)- Following the termination of her employment, Lorena Alamo (“Alamo”), a billing...more

No Discount on Plaintiff’s Burden Under Rule 23(b)(3); Third Circuit Vacates Certification Decision Against Wal-Mart Due to...

In Hayes v. Wal-Mart Stores, Inc., No. 12-2522 (3d Cir. Aug. 2, 2013), the Third Circuit took the opportunity to elaborate and articulate on the ascertainability standard under Fed.R.Civ.P. 23(b)(3). In Hayes, the plaintiff...more

Toxic Tort and Environmental Law Update: January 2013 - New Jersey Supreme Court Clarifies Requisite Nexus for Liability Under...

In New Jersey Dept. of Environmental Protection v. Dimant, 212 N.J. 153 (2012), the New Jersey Supreme Court held that the New Jersey Department of Environmental Protection (NJDEP) must establish, by a preponderance of the...more

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