In the recent case of Amgen Inc. v. Sanofi, Aventisub LLC, the Federal Circuit affirmed the district court’s invalidation of certain of Amgen’s antibody patent claims, concluding that the claims were not “enable[d]” under 35 U.S.C. § 112. This decision establishes that it is more difficult to satisfy the enablement requirement for antibody claims that … Continue Reading
As the legal profession continues to adjust to the COVID-19 pandemic, even something as normal and regular as a deposition has often become an adventure. Even after accounting for the immediately obvious questions (is in-person too dangerous or not allowed? If conducting a remote deposition, what vendor should I use?) and all-to-common glitches like connectivity … Continue Reading
This past year, Proskauer’s private fund litigation blog highlighted a Delaware Chancery case adopting an expansive view in favor of parties seeking information from companies under Section 220 of the Delaware General Corporation Law. The Delaware Supreme Court recently affirmed the Chancery Court’s ruling, providing additional appellate guidance on Section 220 and endorsing limits the Chancery … Continue Reading
Recent Precedential Decisions Applying Fintiv When a company is sued for patent infringement, often one early strategic consideration is whether to counterattack the patent’s validity at the Patent Trial and Appeal Board (PTAB) in a parallel post-grant proceeding such as inter partes review (IPR) or post-grant review (PGR). Although the PTAB has recently conformed certain … Continue Reading
Millions of people across the country are waiting to get the COVID-19 vaccine. For businesses, immunity is sought not against the virus but against liability, and, in some cases, businesses have been successful in invoking COVID-19 as a means to do so. Recently, the Southern District of New York held that the pandemic immunized a … Continue Reading
This past year has brought lots of change, including an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Rule 30(b)(6) governs the deposition of an organization (e.g., a corporation or a partnership) and requires, generally, that the notice of such a deposition set out with reasonable particularity the matters of examination. The … Continue Reading
On November 25, 2020, a shareholder of First American Financial Corporation (“First American”) filed suit against the company and its officers and directors over a massive data security breach that exposed hundreds of millions of sensitive customer records. The shareholder derivative action, filed by Norman Hollett in Delaware federal court, alleges breaches of fiduciary duties, unjust … Continue Reading
The U.S. Patent and Trademark Office has issued guidance on how it will treat applications to register “generic.com” terms in the wake of the Supreme Court’s June 30, 2020 decision in United States Patent and Trademark Office v. Booking.com. We previously wrote about the Supreme Court’s Booking.com decision, which affirmed the Fourth Circuit’s decision that … Continue Reading
Does coverage for liability arising out of “advertising injury” include copyright infringement suits where the insured was not alleged to have engaged in advertisement? In Superior Integrated Solutions, Inc. v. Mercer Insurance Company of New Jersey, Inc., the New Jersey Appeals Court said “yes,” affirming the trial court’s granting summary judgment for an insured.… Continue Reading
The Supreme Court recently granted three petitions for certiorari challenging the Federal Circuit’s holding in Arthrex v. Smith & Nephew that administrative patent judges of the Patent Trial and Appeal Board (PTAB) are unconstitutionally appointed. Under the Patent Act, PTAB judges are appointed by the Secretary of Commerce in consultation with the Director of the … Continue Reading
In a recent order from Livingston v. City of Chicago, Magistrate Judge Young Kim of the Northern District of Illinois provided useful guidance to litigants in the use of technology assisted review, or TAR. Importantly, Judge Kim affirmed what is known as “Sedona Principle Six,” the notion that a responding party is in the best … Continue Reading
The global pandemic has brought about countless changes, including, for many households, increased reliance on online retail and delivery services, such as Amazon. When consumers sign up for these services or place their orders, they are likely to see a notice regarding terms and conditions, which may include an arbitration agreement pursuant to which the consumer … Continue Reading
Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh Circuit decision, wherein the court rejected a plaintiff’s “creative effort” to escape a forum-selection clause requiring her to … Continue Reading
A cyber breach can have serious legal, financial, and reputational consequences for a company, as described in our previous post. As such, cybersecurity threats must be treated as business risks, not just a potential IT problem. Senior management at a company should take the lead to ensure that the company is taking appropriate actions to … Continue Reading
Whether you are a regular user of arbitration, a default user of your local courts or pick and choose a forum depending on the deal, it always pays to take a cold look at those choices. Do they still work for you? Will they work in the future when a dispute arises? Have you taken … Continue Reading
On July 24, 2020, a panel of the Court of Appeals for the Federal Circuit issued splintered precedential opinions surrounding the interplay of state sovereign immunity under the Eleventh Amendment and required joinder of parties under Rule 19 of the Federal Rules of Civil Procedure in a patent-in-suit infringement case in Gensetix, Inc. v. Baylor … Continue Reading
Federal Rule of Evidence 702, which governs the admissibility of expert testimony, was most recently amended in 2000 in response to Daubert and its progeny. In response to concerns about misapplication, the Advisory Committee on the Federal Rules of Evidence has been considering whether Rule 702 is due for an update.… Continue Reading
The Sixth Circuit has joined the Second and Ninth Circuits in their broad interpretation of the Telephone Consumer Protection Act’s (TCPA) autodialer provision. In doing so, it has tipped the scale in a circuit split that is ripe for review by the U.S. Supreme Court.… Continue Reading
A recent opinion from the U.S. District Court for the Southern District of California may help plaintiffs facing the difficulties related to serving foreign defendants, especially in light of challenges caused by the current pandemic.… Continue Reading
On June 1, 2020, the U.S. Supreme Court delivered a unanimous opinion regarding the relationship between domestic equitable estoppel and the enforcement of arbitration agreements. In GE Energy Power Conversion France SAS, Corp., Converteam SAS v. Outokumpufka Stainless USA, LLC, et al., (“GE Energy Power”), the Court addressed the question of whether the Convention on … Continue Reading
In times of crisis, fraudsters attempt to exploit the latest news developments to lure investors into scams, and the once-in-a-century global health crisis we are currently facing is no exception. On February 4, 2020, the SEC noted in an Investor Alert that it was aware of a number of web-based promotions claiming that the products … Continue Reading
With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. We identified 6 key developments in arbitration case law in England from the last 6 months. In Part 1 of the two-part post, … Continue Reading
Proskauer’s Vice-Chair of the Litigation Department and Minding Your Business blog editor, Margaret Dale was recently featured on Thomson Reuters’ Practical Law, where she explores ways that clients can protect privilege after a data breach. The first, “Protecting Privilege Basics,” identifies steps that can be taken by an organization to maximize the ability to successfully … Continue Reading
With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. In this two-part post, we pick out 6 key developments in arbitration case law in England over the last 6 months to reveal … Continue Reading
