Totality of Circumstances Test

News & Analysis as of

Ninth Circuit Retires Fee-Award Standard, Imports Octane Fitness to Trademark Cases

This week, the U.S. Court of Appeals for the Ninth Circuit joined a majority of appellate courts that have rejected rigid tests for attorneys’-fees awards in favor of flexible discretion at the district court level. The...more

Federal Circuit Review | October 2016

Withdrawal of Claims During Prosecution Can Trigger Prosecution History Estoppel In UCB, Inc. v. Yeda Research and Development Co., Ltd., Appeal No. 2015-1957, the Federal Circuit held that prosecution estoppel can apply even...more

Litigation Alert: Ninth Circuit Adopts Broader Octane Fitness Standard for Attorneys’ Fees Awards under the Lanham Act

On October 24, 2016, the U.S. Court of Appeals for the Ninth Circuit after an en banc rehearing in Sunearth, Inc. v. Sun Earth Solar Power Co., LTD., adopted the Octane Fitness standard for determining whether a case is...more

Octane Fitness and Highmark Apply to Ninth Circuit Attorney Fee Awards under the Lanham Act

On October 24, 2016, the Ninth Circuit Court of Appeals, sitting en banc, held that district courts analyzing a request for attorney fees under the Lanham Act should consider the totality of the circumstances, as set forth in...more

Substantial Controversy Exists to Support Declaratory Judgment Complaint under Totality of Circumstances Test Where Patentee’s...

Asia Vital Components Co., Ltd. (AVC) filed a declaratory judgment complaint seeking a declaration that its K7 and K9 products do not infringe two of Asetek Danmark A/S’s (“Asetek”) patents. According to AVC, those two...more

Do you have privacy rights on social media?

True or False: Your privacy rights are diminished in social media. Most people would probably say this is true, and there are certainly court decisions asserting that people give up privacy interests once they post otherwise...more

Extending the Reach of Octane Fitness Under the Lanham Act **WEB ONLY**

The US Court of Appeals for the Fifth Circuit adopted and applied the Supreme Court of the United States’ rationale for an award of attorneys’ fees in patent cases to a trademark case. In doing so, the Fifth Circuit aligned...more

Take a Seat (if Reasonable): The California Supreme Court “Clarifies” Employee Seating Requirements

In April, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court weighed in, at the request of the Ninth Circuit, on elements of two California Wage Orders that have, until now, received relatively little notice, and...more

Supreme Court Rejects Federal Circuit’s Two-Part “Objective Recklessness” Test

The decision, which affects enhanced patent infringement damages, restores the statutory discretion of district courts, whose exercise of discretion should be channeled by sound legal principles limiting the award of enhanced...more

Supreme Court Rules District Courts to Have More Discretion in Finding Willful Patent Infringement by Malicious Pirates

On June 13, 2016, the Supreme Court ruled unanimously, in an opinion by Chief Justice Roberts, that an award of enhanced damages pursuant to 35 U.S.C. § 284 should be within the sound discretion of a district court, albeit...more

Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc. (2016)

The aphorism that "[t]he race is not always to the swift nor the battle to the strong, but that's the way to bet," variously attributed to Damon Runyon, Franklin P. Adams, and Hugh Keough, could readily be updated to include...more

What Is Knowing and Voluntary? One Court’s Take on the Enforceability of ADEA Waivers

A recent district court opinion in Romero v. Allstate Insurance Company, et al., 2016 WL 2619853 (E.D. Pa. May 4, 2016), underscores that there is not a “one-size-fits-all” approach for employers seeking “knowing and...more

Massachusetts Employers: Protect Your Documents

An important new Supreme Judicial Court decision has paved the way for Massachusetts employees pursuing certain discrimination claims to engage in what the court has dubbed “self-help discovery.” This new variant of...more

Employment Law Commentary, April 2016: Kilby V. CVS Pharmacy: The California Supreme Court In The Driver’s Seat Clarifies Seating...

Kilby V. CVS Pharmacy: The California Supreme Court In The Driver’s Seat Clarifies Seating Standards In The Workplace - Most of the California Industrial Welfare Commission’s industry and occupational wage orders...more

The California Edition of the Employment & Labor Newsletter

Take a Seat! California Supreme Court Provides Clarity on California’s Suitable Seating Laws - A recent ruling by the California Supreme Court on suitable workplace seating arrangements will affect a vast number of...more

Sitting on the Job: When California Employers Must Provide Seats

Employees are entitled to sit at work when the nature of the work reasonably permits the use of seats. On April 4, 2016, the California Supreme Court, in an opinion authored by Justice Carol A. Corrigan, clarified...more

Question #275: Can We Take A Stand On Employees Sitting?

Question: Some of our retail company’s employees in California are demanding chairs to sit in while they work. Management thinks it appears unprofessional to have workers sitting, but I hear the employees might have a legal...more

California Supreme Court Takes a Stand About Employees Sitting

Earlier this week, the California Supreme Court, in Kilby v. CVS Pharmacy, clarified that the suitable seating requirement in several California wage orders may entitle employees to a seat when their tasks can be accomplished...more

Labor & Employment Advisory: California Supreme Court Expands “Suitable Seating” Requirements

In an opinion with far-reaching implications for California employers and one that will change the posture of California’s “suitable seating” law, the California Supreme Court recently provided further guidance on how one of...more

Better Sit Down For This: Court Clarifies “Suitable Seating” Rules

Seyfarth Synopsis in a Second: Suitable seating is required in California where tasks performed at a particular location reasonably permit sitting, and where providing a seat would not interfere with the performance of...more

California Supreme Court Takes a Stand on Employers' Obligations to Provide Seating

On April 4, 2016, the Supreme Court of California ruled on employers’ obligations, under certain circumstances, to provide seating for employees under Industrial Welfare Commission Wage Order No. 7-2001, which states that...more

Court Has Jurisdiction In Declaratory Judgment Action.

Robinson, J. Defendant’s motion to dismiss for lack of subject matter jurisdiction is denied. This is a declaratory judgment action on non-infringement and invalidity of the patent-in-suit. Defendant is an NPE. It had...more

Do I have to pay for my Child’s Car Insurance?

Many divorcing or divorced parents ask whether they will have to pay for the cost of their child’s car insurance once their child reaches driving age. This is always a difficult question to answer because New Jersey law does...more

Judge Gilstrap awards Section 285 fees where Plaintiff’s Section 101 positions cross the “threshold of exceptionality.”

On December 17, 2015, Judge Rodney Gilstrap of the Eastern District of Texas (EDTX) ruled that, in light of Alice Corporation Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014) (“Alice”), a plaintiff’s position on...more

eDekka LLC v. 3balls.com, Inc. (E.D. Tex. 2015)

As 2015 drew to a close, the toll of the Alice Corp. v. CLS Bank Int'l decision on software and business method patents became apparent. Post Alice, approximately 70% of all patents challenged under 35 U.S.C. § 101 have been...more

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