News & Analysis as of

Burden-Shifting

Plaintiffs No Longer Have to Demonstrate the Absence of Comparative Fault to Avoid Summary Judgment in New York

by White and Williams LLP on

On April 3, 2018, the New York Court of Appeals addressed a question that “has perplexed courts for some time,” that is, whether a plaintiff must establish his or her own comparative negligence in order to obtain partial...more

Aqua Appears to be Much Ado About Nothing?

As first discussed with the 50+ participants at the inaugural Global IP Strategy Conference held at our firm’s offices on Friday March 9, 2018, the Federal Circuit’s October en banc decision in Aqua Products Inc. v. Matal...more

Calculating larger patent damages in China by burden shifting

by Hogan Lovells on

In China, most damages awarded in patent cases are statutory in nature despite the availability of additional options of calculating damages including losses by the plaintiff, profits obtained by the defendant, or where a...more

Appellate Court Notes

by Pullman & Comley, LLC on

Appellate Court Advance Release Opinions: AC39520 - Stratek Plastics, Ltd. v. Ibar - Remember the case that held you could not recover your attorney fees in a mechanic lien foreclosure as the plaintiff unless there had...more

New Mexico Supreme Court Rejects a Heightened Evidentiary Burden on a Plaintiff in a Reverse Race Discrimination Case

by Littler on

In Garcia v. Hatch Valley Public Schools, the New Mexico Supreme Court recently examined whether a plaintiff has a relatively heightened evidentiary burden in proving a reverse discrimination claim brought under the New...more

Failure to Refute Challenges to Real Parties-in-Interest Terminates 3 IPR Proceedings

by Jones Day on

In prior blog posts, we have commented on PTAB decisions terminating IPR proceedings due to the Petitioner’s failure to identify all real parties-in-interest. See blog posts on Sanction For Failing to Update Real Party In...more

PTO’s Rehearing Petition in Bosch: Signaling Future Rulemaking After Aqua Products?

by Jones Day on

On February 5, 2018, the PTO filed a petition for rehearing of Bosch Auto. Serv. Sol’ns, LLC v. Matal, 878 F.3d 1027 (Fed. Cir., Dec. 22, 2017). The petition asks the panel “not . . . to alter its judgment, but only to...more

Eighth Circuit Holds "Elaborating" On Reasons For Firing Employees Not Evidence of Pretext in Bias Suits

by DeWitt Law, LLC on

In Rooney v. Rock-Tenn Converting Company, No. 16-3631, 2018 U.S. App. LEXIS 494 (8th Cir. Jan. 9, 2018), the 8th U.S. Circuit Court of Appeals recently clarified that when explaining its reasons for termination during...more

Bosch Automotive Service Solutions, LLC v. Matal

by Knobbe Martens on

Federal Circuit Summaries - Before NEWMAN, CHEN, and HUGHES. Appeal from the Patent Trial and Appeal Board. Summary: In inter partes review, the patent challenger bears the burden of proving that proposed amended...more

Arctic Cat Inc. v. Bombardier Recreational Products Inc.

by Knobbe Martens on

Federal Circuit Summaries - Before Moore, Plager, and Stoll. Appeal from the United States District Court for the Southern District of Florida. Summary: In challenging compliance with the marking requirement of §...more

PTAB Provides Guidance on Motions to Amend

Since the Federal Circuit’s complicated, 5-opinion decision regarding motion to amend practice in Inter Partes Review proceedings, we have been awaiting developments that will teach us what life in a post-Aqua Products world...more

WTO Appellate Body Report: Indonesia – Import Licensing Regimes

by White & Case LLP on

...The WTO Appellate Body has ruled that certain import licensing measures maintained by Indonesia constitute impermissible import restrictions under Article XI:1 of the General Agreement on Tariffs and Trade (GATT) 1994....more

United Nations Continues its Development of a Treaty Imposing Liability on Companies for Human Rights Abuses

by Littler on

An ongoing debate exists regarding the nature and extent to which transnational companies should be held directly and legally liable for human rights impacts. Much of this debate has involved calls for additional regulation...more

Second Chances for Secondary Considerations - Hiding the "Novelty Ball"

Like Johnny Cash’s famous tune “A Boy Named Sue,” “secondary considerations” of non-obviousness suffer for their name. Courts have historically relegated this 4th Graham factor to a “secondary” status, considering objective...more

The PTAB Authorizes Additional Motion To Amend Briefing in View of Aqua Products

by Knobbe Martens on

The Board authorized petitioner Kingston to file a Response to the patent owner’s Reply to petitioner’s Opposition to Motion to Amend, based on the Federal Circuit’s en banc holding that the burden to establish...more

Burden of Proving Unpatentability of Amended Claims Placed on IPR Petitioners

by Jones Day on

In an en banc decision, the Federal Circuit in Aqua Products, Inc. v. Matal addressed the question of who bears the burden of proving that claims amended during inter partes review ("IPR") proceedings are or are not...more

In re Stepan Co. (Fed. Cir. 2017)

The Patent Trial and Appeal Board (PTAB) gets most of its attention (judicial and otherwise) regarding its decisions in inter partes review and covered business method proceedings. But the Board also has responsibility for...more

The Three Precedential Holdings of AQUA

by Orrick - IP Landscape on

On Wednesday, the en banc Federal Circuit decided Aqua Products, Inc. v. Matal, 2015-1177 (Oct. 4, 2017 Fed. Cir.), which addressed the allocation of burdens when the patent owner in an IPR moves to amend its patent to add...more

AQUA PRODUCTS: The Federal Circuit Shifts The Burden of Proof On Amending Claims During An IPR From The Patent Owner To The...

The United States Court of Appeals for the Federal Circuit’s recent decision in Aqua Products Inc., v. Matal materially changes the burden of proof associated with the patentability of amended claims during an inter partes...more

Celgene Notches Rare Win On PTAB Request For Rehearing

by Foley & Lardner LLP on

The recent decisions of the USPTO Patent Trial and Appeal Board (PTAB) granting Celgene’s requests for rehearing in parallel Inter Partes Review proceedings brought by Kyle Bass’s Coalition for Affordable Drugs (CFAD) are...more

California Employment Law Notes - September 2017

Jobseeker Website May Be Compelled To Disclose Identity Of Anonymous Posters Who Criticized Employer - ZL Technologies, Inc. v. Does 1-7, 13 Cal. App. 5th 603 (2017) - ZL Technologies brought suit, alleging libel per se and...more

CAFC Vacates USPTO Single Reference Obviousness Rejection For Inadequate Showing Of Expectation of Success

by Foley & Lardner LLP on

In a split decision with Judge Lourie dissenting, the Federal Circuit vacated an obviousness rejection that had been affirmed in an ex parte appeal to the USPTO Patent Trial and Appeal Board. The decision was rendered in In...more

Chris Lazarini Comments on Direct vs. Circumstantial Evidence in Discrimination Case

by Bass, Berry & Sims PLC on

Bass, Berry & Sims attorney Chris Lazarini commented on a case in which a former financial advisor of JPMS claimed his employment was terminated based on racial discrimination. Through application of the three-part burden...more

Fifth Circuit Derails Reverse Discrimination Claims Against Amtrak

by Zuckerman Spaeder LLP on

White male discontent has been a major media talking point since the presidential election, and even long before. This talking point has made its way into the workplace, where tech firms are now being targeted for allegedly...more

Fresh From the Bench: Precedential Patent Cases From the Federal Circuit

In Nidec v. Zhongshan, the entire panel affirms a determination of obviousness but two judges question whether § 315(c) of the AIA was improperly used to permit joinder as to a second Zhongshan petition filed after the...more

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