European Court of Justice Ruling Adds to Challenges that U.S. Standard-Essential Patent Holders Face on Enforcement

BartkowskiGuest Commentary

by Paul M. Bartkowski, a partner with Adduci, Mastriani & Schaumberg, LLP, with Mike Doman, an associate with the firm.

On July 16, 2015, the European Court of Justice (“ECJ”), in Huawei v. ZTE, clarified the circumstances under which an owner of a standard essential patent (SEP) that is required to license the SEP on fair, reasonable, and non-discriminatory terms (FRAND) can bring a claim for injunctive relief against an alleged infringer. The ruling was highly anticipated because the nature of a SEP holder’s right to enjoin alleged infringers has been a recent topic of debate in both the U.S. and in Europe. A review of the decision reveals that European and American courts analyze FRAND-related issues quite differently. Continue reading

Federal Circuit Reaffirms International Trade Commission’s Authority Over Induced Patent Infringement

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The U.S. Court of Appeals for the Federal Circuit sitting en banc has reaffirmed the International Trade Commission’s (ITC) longstanding authority for remedying inducement infringement. The ITC authority was called into question, and in fact overruled, by an earlier panel decision in the same case. The court sitting en banc in Suprema v. ITC voted 6-4 to overturn the panel’s decision limiting the circumstances under which the ITC could issue an exclusion order for induced infringement. The en banc decision closes a loophole for induced infringement and provides certainty on the issue.

By way of background, Suprema is company that manufactures fingerprint scanners in Korea. The fingerprint scanners are imported and sold to Mentalix in the U.S. Mentalix writes custom software for controlling the scanners. It then bundles its software with the scanners and resells the bundled product within the U.S. Continue reading

With Recent Use of Disgorgement, FTC Continues to Sharpen its Enforcement Tools

amurinoFeatured Expert Column – Antitrust/Federal Trade Commission

Andrea Agathoklis Murino, Goodwin Proctor LLP

One need only check the headlines to see that enforcement of the antitrust laws is alive and well at the Federal Trade Commission (“FTC”) today. On both the merger and conduct front, the FTC’s Bureau of Competition has proven incredibly active—and successful. In a continuing example of its willingness to use all tools in its competition enforcement arsenal, the FTC resurrected use of its disgorgement authority in dramatic fashion, collecting nearly $27 million from Cardinal Health, Inc. (“Cardinal”) for conduct dating back to the early and mid- 2000s. The FTC’s willingness to challenge Cardinal’s conduct and the significance of the fine serve as reminders that the agency’s powers are broad and that under Chairwoman Edith Ramirez, the FTC will not hesitate to seek bold relief. Continue reading

Ninth Circuit Panel Eviscerates 2014 ‘En Banc’ Decision That Protects CAFA Removal Rights

9thCirCongress adopted the Class Action Fairness Act (CAFA) in 2005 in response to concerns that plaintiffs’ lawyers were gaming the system to prevent removal of class actions and “mass actions” (lawsuits with more than 100 named plaintiffs) from state court to federal court. CAFA provided state-court defendants the option of removing a case to federal court when the suit is both substantial and involves numerous plaintiffs, even when complete diversity of citizenship is lacking.

Immediately thereafter, the plaintiffs’ bar began to undermine CAFA by coming up with new ways to keep their mass lawsuits in state courts. Among other schemes, plaintiffs’ lawyers divided their clients (often numbering in the thousands) among multiple lawsuits in the same state court, thereby ensuring that CAFA’s 100-plaintiff threshold would not be surpassed in any one lawsuit. An excellent 2014 en banc decision from the U.S. Court of Appeals for the Ninth Circuit imposed strict limits on use of this removal-defeating tactic. The court held in Corber v. Xanodyne Pharmaceuticals, Inc. that if, after filing their separate lawsuits, the plaintiffs ask the state court to coordinate the cases for all purposes, the cases should be deemed unified and thus removable under CAFA’s mass-action provision. But a Ninth Circuit panel decision this month, Briggs v. Merck Sharp & Dohme, creates a roadmap that allows plaintiffs to coordinate their lawsuits yet avoid removal—thereby eviscerating Corber. The decision suggests that the panel (Judges Fletcher, Berzon, and Paez) feels free to thumb their collective nose at Ninth Circuit en banc decisions; it ought to be reversed. Continue reading

D.C. Circuit Weighs in, Once Again, on Privileged Corporate Documents in “KBR” Case

829-Brower_GregjohnsonGuest Commentary

by Greg Brower and Brett W. Johnson, Snell & Wilmer LLP*

Government contractors won another round in a long-running battle over the discoverability of internal investigation documents. On August 11, the United States Court of Appeals for the D.C. Circuit found, for a second time in the same case, that the district court erred in ordering the production of documents, concluding that the district court’s decision was contrary to both the circuit’s own precedent and the United States Supreme Court’s holding in Upjohn v. United States.

Back in March of 2014, in United States of America ex rel. Harry Barko v. Halliburton Company, et al., defendant Halliburton’s subsidiary, Kellogg, Brown & Root (“KBR”) and other defendants filed a petition for writ of mandamus seeking to reverse a district court’s order that certain reports created as part of an internal investigation were not privileged and should be produced in discovery. A three-judge panel of the D.C. Circuit reversed the decision, but remanded the matter back to the district court to consider other potential arguments in favor of production. For more on this decision by the circuit court, see our June 30, 2014 WLF Legal Pulse commentary here. Continue reading

Health Canada Gets it Right, While FDA Goes Further Astray, on “Added Sugars” Labeling

FDAIn a comment critical of his former employer’s proposal to mandate “added sugars” labeling, a former Director of the Food and Drug Administration’s Office of Food Labeling  wrote, “‘Added Sugar’ is the ‘bête noir‘ of this decade for many in the nutrition community.” That community’s obsession with added sugars has hit an all-time high (or low) with FDA’s July 27 release of a proposed rule that “supplements” its March 3, 2014 proposed revision of the ubiquitous food Nutrition Facts panel. While U.S. regulators have been busy affirming the righteousness of their irrational approach, health officials in neighboring Canada have taken a far more reasoned stance. The contrast between the latter’s position and FDA’s proposal is quite instructive.

“Added Sugars” Charade.  Sound science and the history of government nutrition policy dictate that narrowly focusing on one food, ingredient, or nutrient is exactly the wrong way to reduce obesity. Past government pronouncements on the evils of fat and cholesterol pushed consumers away from items such as lean meat and eggs, and toward products like fat-free cookies packed with sweeteners. Now, government is admitting that we shouldn’t worry so much about fat. It’s also no longer clear that salt deserves its status as a longtime public-health bogeyman. Continue reading

Fifth Circuit Requires Labor Department to Pay Attorneys’ Fees in Bad Faith Independent Contractor Suit

DOLGuest Commentary

By Rachael Stein, a summer law clerk at Washington Legal Foundation who is entering her third year at the University of Georgia School of Law this fall.

In recent years, federal and state workplace regulators have put intense pressure on employers to move away from the use of independent contractors. This pressure was thrown into sharp relief in a recent U.S. Court of Appeals for the Fifth Circuit decision, Gate Guard Services L. P. v. Perez, involving a highly-questionable investigation and lawsuit by the Department of Labor (DOL).

Gate Guard Services is a company that provides gate attendants to oil companies at remote drilling sites. Gate Guard classifies its attendants as independent contractors because the attendants find their own relief workers, are not evaluated based on performance, are not restricted from working for competitors, and are not supervised by Gate Guard. The federal investigation arose from a conversation DOL investigator David Rapstine had with a friend, who complained about the wages he received when formerly working at Gate Guard. Rapstine believed Gate Guard attendants were employees and not independent contractors, and therefore believed Gate Guard may have violated the Fair Labor Standards Act (FLSA) by not paying overtime or keeping accurate records of attendants’ working hours. Continue reading