Notice: Function _load_textdomain_just_in_time was called incorrectly. Translation loading for the login-customizer domain was triggered too early. This is usually an indicator for some code in the plugin or theme running too early. Translations should be loaded at the init action or later. Please see Debugging in WordPress for more information. (This message was added in version 6.7.0.) in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131

Deprecated: Function WP_Dependencies->add_data() was called with an argument that is deprecated since version 6.9.0! IE conditional comments are ignored by all supported browsers. in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131

Deprecated: Function WP_Dependencies->add_data() was called with an argument that is deprecated since version 6.9.0! IE conditional comments are ignored by all supported browsers. in /home1/natiopq9/public_html/wp-includes/functions.php on line 6131
The National Law Forum - Page 497 of 753 - Legal Updates. Legislative Analysis. Litigation News.

Two More HR Mistakes To Avoid – Human Resources

Michael Best Logo

Having just touched the tip of the HR iceberg in my recent post  “Avoid these 3 Common HR Mistakes,” let’s dive a little deeper. Below are two more common mistakes made by companies and their human resources professionals:

Mistake #4: Failing to preserve key evidence.  Every terminated employee poses the risk of future litigation. Consequently, take steps to preserve crucial evidence. To the extent possible, save all employee voice mails that involve statements of: (1) quitting; (2) insubordination; (3) threats of violence; (4) profanity; and (5) excuses for absences unrelated to any disability (if you terminated the employee for absenteeism). Similarly, print and save screen shots of employees’ texts and social media postings, particularly if the contents reveal employee misconduct. Finally, always keep a signed and dated copy of the termination letter, and save the employee’s personnel file for at least 3 years.

Mistake #5: Failing to keep quiet. When it comes to discussing employment terminations, the less said the better. Never talk with a lawyer representing an employee. Generally, anything you say is evidence that will be used against you. For the same reason, don’t talk to an employee’s family member about their situation – he/she is not the employee. Don’t talk with anyone from a government agency unless your lawyer is present. Don’t tell individuals who do not have a “need to know” why an employee was terminated; if you can’t later prove the reason(s) for the termination you may face a defamation claim. Finally, be careful what you write in emails. Do not: (1) refer to an employee’s protected characteristics (such as race, age, gender, sexual orientation, religion, disability, etc.); (2) refer to an employee’s threat of a lawsuit; or (3) call the employee derogatory names (including “troublemaker”). Emails can and will be discovered in the course of litigation, and can be highly damaging to your case.*

Navigate around these legal icebergs in order to avoid sinking your case.

ARTICLE BY

Mitchell W. Quick
OF
Michael Best & Friedrich LLP

Letters of Intent in Construction Project Negotiations–Pt 1

McBrayer NEW logo 1-10-13

Anyone who works in the construction industry knows how important it is for everybody to have the same understanding about the terms of a project, including the materials needed, deadlines to be met, and the procedure for resolving disputes. Without a reasonable degree of certainty about these things, there is always the risk that something will go wrong and that money will be lost.

Before all of the details for a construction project are hammered out in a contract, though, there is the negotiation process. Oftentimes, parties begin to take action and invest in a project before a formal contract has been reached. One tool that is sometimes used to prevent financial loss before a contract has been reached is a letter of intent.

A letter of intent is a document that provides a general statement of an agreement that has yet to be finalized. Letters of intent are not contracts, though they may still be enforced in court, at least as to some provisions. Exactly how a letter of intent is treated by a court when disputes arise is not an easy question to answer, partly because the law differs from state to state and partly because it depends on the intention of the parties with respect to the letter of intent, whether they intended to be bound by the letter.

In determining whether parties intended to be bound by a letter of intent, courts don’t simply take parties’€™ word for it. Rather, they consider the specific language of the agreement and other signs that speak to each party’s intent. This can sometimes include actions taken by the parties after the letter of intent is signed.

In our next post, we wi€™ll continue this discussion on letters of intent and how they should be approached in the negotiation process.

ARTICLE BY

Business and Corporate Law Practice Group

OF

McBrayer, McGinnis, Leslie and Kirkland, PLLC

This Week in Congress – February 2, 2015 re: 2016 Budget Proposal, DHS, and more

Covington_NL

President Obama will release his Fiscal Year (FY) 2016 budget proposal today, requesting roughly $4 trillion in spending for the upcoming year and specifying the Administration’s views on how and from what sources the federal government should be raising money and how and on what it should be spending it for the fiscal year beginning October 1.  The President’s budget sets off a fiscal showdown with the Republican-led Congress, whose members generally view the Administration’s proposals as higher taxes and higher government spending.  Many of President Obama’s cabinet members will be on Capitol Hill this week and in the coming weeks, testifying before House and Senate committees as to the merits of the budget proposal and highlighting areas of potential compromise as Congress develops its own budget for FY 2016.  Treasury Secretary Jacob Lew will be before the House Ways and Means and Senate Budget Committees on Tuesday, while IRS Commissioner John Koskinen will be before the Senate Finance Committee.  On Wednesday, Shaun Donovan, Director of the Office of Management and Budget, is scheduled to appear before the House Budget Committee and Sylvia Mathews Burwell, Secretary of the Department of Health and Human Services, appears before the Senate Finance Committee.  In addition, the Senate Armed Services Committee will hold the confirmation hearing this week for Ashton Carter to serve as Secretary of Defense.  With Committee Chairman John McCain’s strong desire for increased defense spending, the budget will no doubt be front and center in that hearing as well.

The House of Representatives returns to legislative business on Monday taking up three bills concerning programs at the Department of Homeland Security.  On Tuesday, the House will vote on H.R. 596, a bill that would repeal the Affordable Care Act while directing House committees to develop alternatives.  Since the Affordable Care Act was signed into law in 2010, Congress has voted 54 times on measures to repeal, revamp, or make technical changes to it.  On Wednesday, members will consider H.R. 50, the Unfunded Mandates Information and Transparency Act of 2015, sponsored by Rep. Virginia Foxx.  This legislation, which passed the House in 2014 by a vote of 234-176, would impose stricter requirements for how and when federal agencies must disclose the cost of federal mandates and equips both Congress and the public with tools to determine the true costs of regulations.  On Thursday, the House will vote on H.R. 527, the Small Business Regulatory Flexibility Improvements Act of 2015, sponsored by Representative Steve Chabot, which requires federal agencies to consider the economic effects of regulations on small business before imposing overly burdensome mandates that prevent growth and job creation.  This legislation has also passed the Republican-controlled House in the two previous Congresses.

The Senate returns on Monday and is expected to vote on H.R. 203, the Clay Hunt Suicide Prevention for American Veterans Act, a bill that the House passed unanimously.  The bill would require annual evaluations of the Department of Veterans Affairs’ mental health and suicide prevention programs.  The Senate will then seek to turn to H.R. 240, an appropriations bill that will fund the Department of Homeland Security for the remainder of 2015; the current budget for DHS expires  Feb. 27. While the bill provides $40 in funding for DHS, it also blocks any of the funds from being used to carry out President Obama’s new immigration and deportation policy announced in an executive order last November.  President Obama has pledged to veto the measure if the immigration rider is included.  Leader McConnell is unlikely to be able to get the 60 votes needed on cloture on the motion to proceed to the appropriations bill.  Once the cloture vote fails, he will need to figure out an alternative means of considering the legislation.  He has put a clean Democratic DHS appropriations bill on the Senate Calendar under Rule 14, so moving to that bill after the failed cloture vote is one possibility.

In addition to the hearings focused on the President’s budget and on the Defense Secretary nomination, a list of other key congressional hearings this week is included below:

 Feb. 3

 House Committees

Global Threat Assessment
House Armed Services
Full Committee Hearing
Feb. 3, 10 a.m., 2118 Rayburn Bldg.

Flu Preparation and Prevention
House Energy and Commerce – Subcommittee on Oversight and Investigations
Subcommittee Hearing
Feb. 3, 10 a.m., 2123 Rayburn Bldg.

U.S. Interests in Western Hemisphere
House Foreign Affairs – Subcommittee on the Western Hemisphere
Subcommittee Hearing
Feb. 3, 11 a.m., 2172 Rayburn Bldg.

Immigration Law Assessment
House Judiciary
Full Committee Hearing
Feb. 3, 11 a.m., 2141 Rayburn Bldg.

Inspectors General Oversight
House Oversight and Government Reform
Full Committee Hearing
Feb. 3, 10:15 a.m., 2154 Rayburn Bldg.

NSF Research Facility Oversight
House Science, Space and Technology – Subcommittee on Oversight; House Science, Space and Technology – Subcommittee on Research and Technology
Committee Joint Hearing
Feb. 3, 10 a.m., 2318 Rayburn Bldg.

Energy and Transportation Issues
House Transportation and Infrastructure – Subcommittee on Railroads, Pipelines and Hazardous Materials
Subcommittee Hearing
Feb. 3, 10 a.m., 2167 Rayburn Bldg.

Fiscal 2016 Budget Issues – Treasury Secretary Jacob Lew
House Ways and Means
Full Committee Hearing
Feb. 3, 10 a.m., 1300 Longworth Bldg.

Airport Access Control Measures
House Homeland Security – Subcommittee on Transportation Security
Subcommittee Hearing
Feb. 3, 2 p.m., 311 Cannon Bldg.

Wounded Warrior Program
House Armed Services – Subcommittee on Military Personnel
Subcommittee Hearing
Feb. 3, 3:30 p.m., 2118 Rayburn Bldg.

Senate Committees

Military Compensation and Retirement Modernization Commission
Senate Armed Services
Full Committee Hearing
Feb. 3, 9:30 a.m., G-50 Dirksen Bldg.

Fiscal 2016 Budget – Treasury Secretary Jacob Lew
Senate Budget
Full Committee Hearing
Feb. 3, 10 a.m., 608 Dirksen Bldg.

U.S.-Cuba Relations
Senate Foreign Relations – Subcommittee on Western Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights and Global Women’s Issues
Subcommittee Hearing
Feb. 3, 10 a.m., 419 Dirksen Bldg.

IRS Fiscal 2016 Budget Request – John Koskinen, Commissioner, Internal Revenue Service
Senate Finance
Full Committee Hearing
Feb. 3, 10:30 a.m., 215 Dirksen Bldg.

No Child Left Behind and Student Needs
Senate Health, Education, Labor and Pensions
Full Committee Hearing
Feb. 3, 10 a.m., 216 Hart Bldg.

Joint Committees
Veterans Affairs Issues
House Veterans’ Affairs; Senate Veterans’ Affairs
Committee Other Event
Feb. 3 TBA, Veterans Affairs, 810 Vermont Ave. NW

Feb. 4

House Committees

Military Compensation and Retirement Commission
House Armed Services
Full Committee Hearing
Feb. 4, 10 a.m., 2118 Rayburn Bldg.

Fiscal 2016 Budget Issues – Shaun L.S. Donovan, Director, Office of Management and Budget
House Budget
Full Committee Hearing
Feb. 4, 10:30 a.m., 210 Cannon Bldg.

U.S. Schools and Workplaces
House Education and the Workforce
Full Committee Hearing
Feb. 4, 10 a.m., 2175 Rayburn Bldg.

HUD Ethical Oversight
House Financial Services – Subcommittee on Oversight and Investigations
Subcommittee Hearing
Feb. 4, 10 a.m., 2167 Rayburn Bldg.

U.S.-Cuba Policy Assessment
House Foreign Affairs
Full Committee Hearing
Feb. 4, 10 a.m., 2172 Rayburn Bldg.

Legal Workforce Act
House Judiciary – Subcommittee on Immigration and Border Security
Subcommittee Hearing
Feb. 4, 10 a.m., 2141 Rayburn Bldg.

Furthering Asbestos Claim Transparency Act
House Judiciary – Subcommittee on Regulatory Reform, Commercial and Antitrust Law
Subcommittee Hearing
Feb. 4, 1 p.m., 2141 Rayburn Bldg.

Palestinian Authority and International Criminal Court
House Foreign Affairs – Subcommittee on the Middle East and North Africa
Subcommittee Hearing
Feb. 4, 2 p.m., 2172 Rayburn Bldg.

Senate Committees

Secretary of Defense Nomination
Senate Armed Services
Full Committee Confirmation Hearing
Feb. 4, 9:30 a.m., G-50 Dirksen Bldg.

HHS Fiscal 2016 Budget Request – Sylvia Mathews Burwell, Secretary, United States Department of Health and Human Services
Senate Finance
Full Committee Hearing
Feb. 4, 10 a.m., 215 Dirksen Bldg.

Cybersecurity and Private Sector Issues
Senate Commerce, Science and Transportation
Full Committee Hearing
Feb. 4, 10 a.m., 253 Russell Bldg.

Implications of Immigration Action
Senate Homeland Security and Governmental Affairs
Full Committee Hearing
Feb. 4, 10 a.m., 342 Dirksen Bldg.

Vessel Discharge Regulations
Senate Commerce, Science and Transportation – Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard
Subcommittee Hearing
Feb. 4, 2:30 p.m., 253 Russell Bldg.

Indian Affairs Legislation
Senate Indian Affairs
Full Committee Markup
Feb. 4, 2:30 p.m., 628 Dirksen Bldg.

Loan Leveraging Issues
Senate Indian Affairs
Full Committee Oversight Hearing
Feb. 4, 2:30 p.m., 628 Dirksen Bldg.

Financial Exploitation of Seniors
Senate Special Aging
Full Committee Hearing
Feb. 4, 2:15 p.m., 562 Dirksen Bldg.

Joint Committees

Proposed Waters Rule
Senate Environment and Public Works; House Transportation and Infrastructure
Committee Joint Hearing
Feb. 4, 10 a.m., HVC-210 Capitol Visitor Center

Feb. 5

House Committees

Drinking Water Protection Act
House Energy and Commerce – Subcommittee on Environment and the Economy
Subcommittee Hearing
Feb. 5, 10 a.m., 2123 Rayburn Bldg.

Senate Committees

Treasury Fiscal 2016 Budget Request – Treasury Secretary Jacob Lew
Senate Finance
Full Committee Hearing
Feb. 5, 10 a.m., 215 Dirksen Bldg.

Joint-Employer Standard
Senate Health, Education, Labor and Pensions
Full Committee Hearing
Feb. 5, 10 a.m., 430 Dirksen Bldg.

Judiciary Issues

Senate Judiciary
Full Committee Business Meeting
Feb. 5, 10:30 a.m., 226 Dirksen Bldg.

Kaitlyn McClure, Covington & Burling LLP Policy Advisor, co-authored this post.

ARTICLE BY

Richard A. Hertling
OF
Covington & Burling LLP

Anti-Bullying Laws in California and Tennessee Could Be the Start of a New Trend

Jackson Lewis Law firm

While there are no current federal laws that prevent workplace bullying in the private sector, “Healthy Workplace” bills have been introduced in 26 states since 2003.  Tennessee recently became the first state to pass the “Healthy Workplace Act,” a law designed to encourage public sector agencies to create an anti-bullying policy that addresses “abusive conduct” by making the agencies immune to bullying-related lawsuits if they adopt a policy that complies with the law.

More recently, California passed a workplace anti-bullying law for private-sector employers that became effective on January 1, 2015.  California’s A.B. 2053 requires employers with 50 or more employees that already provide training on preventing sexual harassment to include new training on preventing “abusive conduct” in the workplace to supervisory employees.  It is likely that other states will follow suit and pass their own “Healthy Workplace” bills in the coming years as anti-bullying continues to trend in the news and become a focus in the workplace.

Statistics show bullying in the workplace may be a real problem, with 65.6 million U.S. workers being affected by it.  According to 2014 National Survey conducted by the Workplace Bullying Institute, 27 percent of U.S. workers reported that they had experienced abusive conduct at work and 21% of U.S. Workers have witnessed abusive conduct of others at work.

The 2014 National Survey uncovered that most employees do not think that their employers do enough to address workplace bullying:

• 25% of employees’ surveyed asserted that employers deny that bullying and harassing conduct takes place and fail to investigate complaints

• 16% asserted that employers discount bullying or describe it as non-serious

•  15% asserted that employers rationalize it by describing the bullying as innocent

• 11% asserted that employers defend abusive conduct when the perpetrators are executives and managers

Only 12% of employees’ surveyed found that their employers took steps to eliminate bullying by creating and enforcing certain policies and procedures.  The perceived failure from employees and state lawmakers that employers are adequately addressing workplace bullying may be one reason for the recent passage of anti-bullying laws in Tennessee and California and the introduction of similar bills in other states.

Under Tennessee’s Healthy Workplace Act, “abusive conduct” is broadly defined as acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment, such as: (A) Repeated verbal abuse in the workplace, including derogatory remarks, insults, and epithets; (B) Verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature in the workplace; or (C) The sabotage or undermining of an employee’s work performance in the workplace.

California’s A.B. 2053 similarly defines “abusive conduct” very broadly.  “Abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.  It may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  The Act recognizes that a single act shall not constitute abusive conduct, unless especially severe and egregious.

While California and most other states do not provide a private right of action for an employee to sue for workplace bullying, bullying at the workplace – that goes unchecked – can result in negative consequences, such as decreased productivity and efficiency, increased absenteeism, loss of morale, increased resignations or transfer requests, and increased hotline calls and internal complaints.   It may also result in employees suing their employers for harassment or a hostile work environment based on a protected class, such as race and gender under Title VII of the Civil Rights Act of 1964 or for tort liability claims, such as negligent hiring or intentional infliction of emotional distress.

Thus, employers would be well-advised to manage this risk and develop a stronger workplace conduct policy now.  To address the potential for workplace bullying and the possibility that states will follow Tennessee’s and California’s lead in regulating workplace bullying, employers should analyze the workplace culture for incidents or prevalence to bullying and develop a workplace bullying prevention program.

ARTICLE BY

Nickole C. Winnett
OF
Jackson Lewis P.C.

The Artist’s Legacy – Business and Legal Planning Issues

Sheppard Mullin Law Firm

Photographers face unique issues that must be carefully considered to ensure a continued market for the creative output and to preserve the artistic reputation. Prudently managed business affairs will minimize problems commonly encountered when closing down a studio and during the transition of business affairs from the photographer’s life to the photographer’s estate.

First, there is the issue of care for the physical works, the critical planning for the inventory, conservation and storage of the photographer’s works. Second is the issue of advantageously placing the photographer’s works; which works should be preserved, which donated, and when, where, how, including considering a sale or donation to a publicly-accessible archive as a permanent home for papers and other materials. This naturally leads to the third issue, prudent sales; how much and what part of the inventory should be released for sale each year and through what means? Is this the moment to re-examine the extant gallery relationship? These decisions require knowledge of the market, including a sense of timing, market conditions, and museum/collector interest.

Getting the house in order also includes appointing executors, attorneys, and accountants who can be trusted, who know the family or estate, who are familiar with and responsible toward the photographer’s work and the market, and who have both sensitivity and concern for the future of the photographer’s works and artistic reputation. Estate planning considerations for a photographer also include issues relevant for any individual: to provide for the surviving children, spouse and others according to the law and the photographer’s wishes so as to assure orderly transition and minimize the potential for probate litigation. For a photographer, though, preserving and enhancing a legacy also includes efficiently managing the estate to maintain continuity and safeguard the assets.

Photographers must likewise consider their intangible assets, which include copyrights, trademarks, licensing potential, and the like. It is important for photographers to register copyrights and keep track of any copyright renewal or termination rights, to be aware of current assignments and licenses of the intellectual property, and to maintain orderly files of subject releases, photographer agreements and other agreements affecting the works. Photographers should also consider licensing decisions to promote accessibility and generate revenue. It is crucial to weigh each transaction in terms of its potential for affecting the photographer’s stature in the art market. Indeed, one should consider the implications of each decision as it promotes and/or dilutes the overall value of the photographer’s oeuvre.

The photographer must identify and implement a comprehensive business and legal framework that can guide the present and govern the future in order to assure that legacy is preserved in accordance with the photographer’s wishes.

Above is the text of a handout on business and legal planning issues prepared by Christine Steiner. Christine Steiner and Lauren Liebes recently joined Weston Naef, Getty Photography Curator Emeritus, and ASA appraiser Jennifer Stoots for “What Will Become of Your Legacy”, a panel discussion at Los Angeles Center of Photography.  The panel addressed business and estate planning issues for photographers. In our next post, Lauren Liebes will address the myriad estate planning issues to consider.

ARTICLE BY

Christine Steiner
Lauren C. Liebes
OF
Sheppard, Mullin, Richter & Hampton LLP

“Google It”: The Search Engine’s Trademark May Be a Verb, But It’s Not Generic

Katten Muchin Law Firm

Google defeated a claim that its GOOGLE trademark was generic, in Elliot v. Google Inc., a recent case from the United States District Court for the District of Arizona.

In 2012, Google filed a Uniform Domain Name Dispute Resolution Policy (UDRP) Complaint against the owner of several hundred domain names that included the word “google.” The UDRP’s Administrative Panel ruled in favor of Google and ordered that the domain names be transferred to Google.

The domain name owner responded by suing Google in the Arizona district court, seeking cancellation of two of Google’s US Trademark Registrations covering search engines.

The domain name owner argued that “google” has become a generic term and is therefore not a protectable trademark. Google filed a motion for summary judgment to dismiss the domain name owner’s claims.

A generic term is one that identifies a general category of goods or services, while a trademark identifies the specific source of those goods or services. A trademark may become generic if the public ceases to associate the mark with a particular source of a good or service, but instead believes the term to refer to a general category of goods or services. Examples of trademarks that have become generic terms include “aspirin,” “escalator” and “videotape.”

In Elliot v. Google, the domain name owner tried to establish that the GOOGLE trademark had become a generic term for search engines. However, the domain name owner did not argue that the majority of the public understands the term “google” to refer to search engines in general. Instead, it based its genericness argument on the public’s use of the term “google” as a verb, contending that “verbs, as a matter of law, are incapable of distinguishing one service from another, and can only refer to a category of services.” The domain name owner offered media and survey evidence to support its genericness claim, but focused mostly on the public’s use of the term “google” as a verb. As a result, the court found that the evidence failed to create a genuine dispute about whether “the primary significance of the word ‘google’ to a majority of the public who utilize Internet search engines is a designation of the Google search engine.”

The court rejected the domain name owner’s genericness argument, holding that the use of a trademark as a verb does not, alone, prevent it from identifying a product or its source.

The court found the domain name owner’s reliance on verb usage as a basis for genericness “misplaced”; even if a majority of the public uses “google” as a verb to refer to the act of searching on the Internet, such usage does not make the term generic because the public still uses “GOOGLE” as a trademark to refer to Google’s search engine. Accordingly, the court granted Google’s motion for summary judgment and ruled that the GOOGLE mark is not generic. In reaching its decision, the court also noted specific steps taken by Google to prevent its GOOGLE mark from becoming generic, including using the mark to identify the Google search engine in national advertising campaigns, establishing standards for third-party use of the mark, and engaging in a pattern of enforcement measures.

The court’s decision highlights the risk that a trademark may become generic and reminds brand owners of steps they can take to prevent generic use of their marks. Brand owners can monitor both authorized and unauthorized uses of their trademarks to ensure their marks continue to function as source identifiers.

ARTICLE BY

Karen Artz Ash
Bret J. Danow
OF
Katten Muchin Rosenman LLP

Practice Considerations Post Teva v. Sandoz

Sterne, Kessler, Goldstein & Fox P.L.L.C. - Attorneys at Law

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No. 13-854, slip op. 574 U.S. __ (2015), the U.S. Supreme Court ruled that underlying factual issues resolved while formally construing a disputed patent claim term at the district court level are subject to a clear error standard of review as opposed to a de novo standard.

The Patent at Issue

The litigated patent claimed a method for manufacturing Copaxone, Teva’s multi-billion dollar a year drug used in the treatment of multiple sclerosis. Sandoz, as a generic pharmaceutical challenger under the Hatch-Waxman Act, attacked the patent as indefinite because it contained claim language describing an active pharmaceutical ingredient having a “molecular weight of 5 to 9 kilodaltons.” Although three accepted definitions1 exist in the relevant art to calculate “molecular weight,” the method of calculation to be used was not described in the claim, the patent specification, or the prosecution history. The district court took evidence on this issue, namely through extrinsic expert testimony, and ruled that “molecular weight” would have been calculated by determining the “peak average molecular weight.” Accordingly, the district court held the phrase to be definite and accepted the understanding advanced by Teva’s expert. The Federal Circuit, however, reversed and held that the claim was indefinite after reviewing the district court claim construction de novo.

The Supreme Court’s Decision

In the majority opinion, authored by Justice Breyer, the Court explained that claim construction may involve both legal and factual elements that could necessitate differing levels of appellate scrutiny. Specifically, if a patent claim term is construed based upon the intrinsic evidence alone (i.e., patent claims, specification, and prosecution history), the determination is exclusively one of law, subject to de novo review. However, if the intrinsic evidence is not dispositive of the meaning of a claim term, then extrinsic evidence can be consulted (e.g., expert testimony, technical dictionary definitions, etc.) to better understand the meaning of the term. It is these underlying “facts” relating to extrinsic evidence that are reviewed according to the clear error standard. The Court reasoned that the District Judge, having presided over the entire proceeding, has a comparatively greater familiarity with the “specific scientific problems and principles” than the appellate court and should be afforded deference on factual findings. While the new scheme announced by the Court changes the standard of review for subsidiary factual matters, the ultimate issue of claim interpretation will still be reviewed de novo.

What is the Significance of Teva v. Sandoz?

The holding in Teva could have broad-ranging implications for clients in the procurement and enforcement of their patent rights. Below are a few examples of how the decision could impact current patent practice.

As an initial matter, patent owners should pay particular attention to the sufficiency of the disclosure with regard to key elements of the claims and consider specifically defining these elements in the specification through, for example, the use of a glossary. Such a strategy could help avoid protracted battles of the experts that could result in claim terms being redefined in ways never intended by the patent owner. While this approach has the potential to narrow claim scope, and may require additional time and expense during patent prosecution, it could result in a stronger, more effective patent less susceptible to post-Teva based challenges.

In the context of litigation, the Teva decision could provide motivation for litigants to create “factual issues” that are determinative of claim construction. Patentees, for example, may be tempted to try and broaden the scope of their claims by creating ambiguities in claim language in order to advance constructions that were never originally intended but may now be supported by extrinsic evidence. Alternatively, accused infringers may attempt to create as many factual disputes as possible with regard to the meaning of a claim in an effort to lock the patent owner into an unfavorable finding. Regardless of the motivations of the parties, district courts will likely become more attentive to these issues knowing their claim construction determinations could be afforded a higher standard of review. It is possible that the Teva decision could even result in broader acceptance among district court judges of “trial-like” Markman hearings with submission of expert testimony and extrinsic evidence at the claim construction stage.

Finally, in light of the changing claim construction standard of review in federal courts, parties (petitioners) should consider how this will impact the use and significance of inter partes review (IPR) proceedings. For example, IPR proceedings provide petitioners with a “broadest reasonable interpretation” standard for claim construction, while also allowing petitioners to submit an expert declaration in support. Since patent owners are typically not given an opportunity to submit a rebuttal expert declaration before the Board institutes trial, this can provide a preliminary advantage for petitioners attempting to secure a favorable construction, as an initial finding on claim construction is usually made as part of the institution process. Moreover, the patent owner may find it difficult to overturn the initial claim construction inertia, whether during the postinstitution phase or on appeal after a final decision on the merits has been made by the Board.

Many questions remain in the wake of Teva, as patent owners and challengers alike will be faced with new claim construction strategy scenarios relying on extrinsic evidence.

ARTICLE BY

Daniel E. Yonan
Jon E. Boljesic
OF
Sterne, Kessler, Goldstein & Fox P.L.L.C.

 1 The three accepted definitions to determine “molecular weight” included a (1) peak average molecular weight; (2) number average molecular weight; or (3) weight average molecular weight.

Will Religiously Based Federal Contractors Challenge OFCCP's New LGBT Regulations?

Gonzalez Saggio & Harlan logo

As 2014 headed toward close, the Office of Federal Contract Compliance Programs (“OFCCP”) gave the federal contractor community, already presented with five Executive Orders in 2014, one last compliance gift. On December 9, 2014, without notice or an opportunity for public comment, OFCCP issued its final rule (“Rule”) implementing Executive Order (“EO”) 13672. President Obama signed EO 13672 on July 14, 2014, extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community by amending Executive Order 11246 to add sexual orientation and gender identity as protected characteristics. It also requires contractor employers to take affirmative action to ensure that applicants and employees are treated without regard to their sexual orientation or gender identity during their employment. The Executive Order was effective immediately. The Rule is effective April 8, 2015, and applies to all new or modified federal contracts and subcontracts after that date.

The issuance of EO 13672 and the requirements of its implementing Rule highlight OFCCP’s intention to focus on LGBT protections and might be seen as steps to squarely tee up the issue of enforcement of LGBT protections in the post-Hobby Lobby era. First, and seemingly to leave no doubt of its intention, OFCCP had also issued Directive 2014-02 in August 2014, with its stated purpose, “[t]o clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the bases of gender identity and transgender status.” The directive explicitly piggybacked off of the EEOC’s 2012 decision in Macy v. Holder, where the EEOC concluded that gender identity and transgender status did not need to be specifically addressed in Title VII in order to be protected bases of discrimination, as they are simply part of the protected category of “sex” under Title VII. Anticipating the question of why EO 13672 was then necessary if already protected under Title VII, OFCCP offered a questionable explanation that the directive “does not address gender identity as a stand-alone protected category, which (along with sexual orientation) is the subject of Executive Order 13672.”

Second, as written, the Rule is relatively straightforward. It amends EO 11246’s implementing regulations by replacing the phrase “sex or national origin” with the phrase “sex, sexual orientation, gender identity, or national origin” wherever the former appears in the regulations.  The Rule also places the following obligations on employers:

  1. Ensure that applicants and employees are not discriminated against based on their sexual orientation or gender identity.

  2. Update existing affirmative action plans and all equal opportunity, harassment, and nondiscrimination policies to reflect the additional protected categories.

  3. Make available to applicants and employees a revised version of the “EEO is the Law” poster that includes a notice regarding the protections for LGBT workers.

  4. Include “sexual orientation” and “gender identity” as protected traits in the equal opportunity job solicitation taglines. (OFCCP suggested in the Rule preamble that “equal opportunity employer” may be sufficient to cover all protected categories of EO 11246.)

  5. Incorporate the new categories into new or modified subcontracts and purchase orders.

  6. Report to OFCCP and the Department of State any suspicion that it cannot obtain a visa for an employee, from another country with which it does business, due to the employee’s sexual orientation.

  7. Ensure that facilities (e.g., restrooms, locker rooms, and dressing areas) provided for employees are not segregated on the basis of sexual orientation and gender identity.

The Rule does not burden contractor employers with the same data collection and analysis obligations that are required with respect to females and minorities and does not require contractor employers to set placement goals on the bases of sexual orientation or gender identity, nor does it require them to collect or analyze any data with respect to the sexual orientation or gender identity of their applicants or employees. Contractor employers are also not required to, or prohibited from, soliciting applicants or employees to self-identify regarding their sexual orientation or gender identity.

Finally, it is notable that EO 13672 and its implementing Rule were issued despite the growing number of states (currently 20 states plus the District of Columbia) that have implemented protections against sexual orientation and/or gender identity discrimination. And further, that they are set within the larger context of the legalization of same sex marriage by, as of this article, 37 states, as well as the US Supreme Court’s consideration of the status of same sex marriage this year. Thus, the issue brought to focus by these OFCCP actions and the Executive Order may be more pointed than an identification of sexual orientation and gender identity as protected traits and may go towards whether a religious contractor employer may base employment decisions on the LGBT status of an applicant or employee.

EO 13672 contains no exemption for religiously affiliated federal contractors. Section 204(c) of EO 11246, which allows a religious corporation, association, educational institution or society, to base employment decisions on the religious membership of a particular individual (rather than on the beliefs of the organization), was specifically not amended by EO 13672. Possibly by design, this may result in a test of the reach of the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc., which, broadly speaking, allowed a closely-held, for-profit corporation to be exempt from the Affordable Care Act’s birth control mandate based upon its owners’ religious objection because it found that there was a less restrictive means of furthering the law’s interest.

A similar legal challenge may play out in the arena of employee benefits governed by EO 13672. OFCCP enforcement of the new Rule’s nondiscrimination prohibitions would bring within OFCCP’s purview the provision of benefits to an employee’s same sex spouse. Title VII and Supreme Court precedent require employers to make available the same benefits for spouses regardless of the gender of the employee. Closely-held contractor employers who oppose same sex marriage as a violation of religious belief may object to this requirement’s enforcement as a burden on their religious beliefs, similar to the arguments made by Hobby Lobby. While the Hobby Lobby majority attempted to dismiss the idea that its decision might allow an employer to “cloak as religious practice” prohibited acts, such as racial discrimination in hiring, the reach of the Hobby Lobby decision is far from settled, and the next batch of cases may seek to extend that decision to regulations requiring equal benefits based upon sexual orientation or gender identity.

And, lest employers think that the OFCCP was done, just today it announced that on January 30, 2015, it will publish a Notice of Proposed Rulemaking to update contractors’ obligations to not discriminate on the basis of sex under EO 11246 to “reflect present-day workplace realities and align OFCCP’s rules with current law under Title VII.” The new rules will touch on “compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy, and gender identity and family caregiver discrimination, among other topics.” The regulatory landscape for federal contractors saw many changes in 2014, and it seems 2015 is shaping up to be no different.

ARTICLE BY

Jill Pedigo Hall
Gonzalez Saggio & Harlan LLP

FTC Releases Extensive Report on the “Internet of Things”

Mcdermott Will Emery Law Firm

On January 27, 2015, U.S. Federal Trade Commission (FTC) staff released an extensive report on the “Internet of Things” (IoT). The report, based in part on input the FTC received at its November 2013 workshop on the subject, discusses the benefits and risks of IoT products to consumers and offers best practices for IoT manufacturers to integrate the principles of security, data minimization, notice and choice into the development of IoT devices. While the FTC staff’s report does not call for IoT specific legislation at this time, given the rapidly evolving nature of the technology, it reiterates the FTC’s earlier recommendation to Congress to enact strong federal data security and breach notification legislation.

The report also describes the tools the FTC will use to ensure that IoT manufacturers consider privacy and security issues as they develop new devices. These tools include:

  • Enforcement actions under such laws as the FTC Act, the Fair Credit Reporting Act (FCRA) and the Children’s Online Privacy Protection Act (COPPA), as applicable;

  • Developing consumer and business education materials in the IoT area;

  • Participation in multi-stakeholder groups considering guidelines related to IoT; and

  • Advocacy to other agencies, state legislatures and courts to promote protections in this area.

In furtherance of its initiative to provide educational materials on IoT for businesses, the FTC also announced the publication of “Careful Connections: Building Security in the Internet of Things”.  This site provides a wealth of advice and resources for businesses on how they can go about meeting the concept of “security by design” and consider issues of security at every stage of the product development lifecycle for internet-connected devices and things.

This week’s report is one more sign pointing toward our prediction regarding the FTC’s increased activity in the IoT space in 2015.

It’s Data Privacy Day 2015

Mintz Levin Law Firm

Today is Data Privacy Day, and as you might expect, we have a few bits and bytes for you.

Use the Opportunity

Data Privacy Day is another opportunity to push out a note to employees regarding their own privacy and security — and how that can help the company.

The Federal Trade Commission Issues IoT (Internet of Things) Report

Following up on its November 2013 workshop on the Internet of Things, the Federal Trade Commission (“FTC”) has released a staff report on privacy and security in the context of the Internet of Things (“IoT”), “Internet of Things: Privacy & Security in a Connected World” along with a document that summarizes the best practices for businesses contained in the Report.  The primary focus of the Report is the application of four of the Fair Information Practice Principles (“FIPPs”) to the IoT – data security, data minimization, notice, and choice.

Data PrivacyThe report begins by defining IoT for the FTC’s purposes as “‘things’ such as devices or sensors – other than computers, smartphones, or tablets – that connect, communicate or transmit information with or between each other through the Internet,” but limits this to devices that are sold to or used by consumers, rather than businesses, in line with the FTC’s consumer protection mandate.  Before discussing the best practices, the FTC goes on to delineate several benefits and risks of the IoT.  Among the benefits are (1) improvements to health care, such as insulin pumps and blood-pressure cuffs that allow people avoid trips to the doctor the tools to monitor their own vital signs from home; (2) more efficient energy use at home, through smart meters and home automation systems; and (3) safer roadways as connected cars can notify drivers of dangerous road conditions and offer real-time diagnostics of a vehicle.

The risks highlighted by the Report include, among others, (1) unauthorized access and misuse of personal information; (2) unexpected uses of personal information; (3) collection of unexpected types of information; (4) security vulnerabilities in IoT devices that could facilitate attacks on other systems; and (5) risks to physical safety, such as may arise from hacking an insulin pump.

In light of these risks, the FTC staff suggests a number of best practices based on four FIPPs. At the workshop from which this report was generated, all participants agreed on the importance of applying the data security principle.  However, participants disagreed concerning the suitability of applying the data minimization, notice, and choice principles to the IoT, arguing that minimization might limit potential opportunities for IoT devices, and notice and choice might not be practical depending on the device’s interface – for example, some do not have screens.  The FTC recognized these concerns but still proposed best practices based on these principles.

Recommendations

Data Security Best Practices:

  • Security by design.  This includes building in security from the outset and constantly reconsidering security at every stage of development. It also includes testing products thoroughly and conducting risk assessments throughout a product’s development

  • Personnel practices.  Responsibility for product security should rests at an appropriate level within the organization.  This could be a Chief Privacy Officer, but the higher-up the responsible part, the better off a product and company will be.

  • Oversee third party providers.  Companies should provide sufficient oversight of their service providers and require reasonable security by contract.

  • Defense-in-depth.  Security measures should be considered at each level at which data is collected stored, and transmitted, including a customer’s home Wi-Fi network over which the data collected will travel.  Sensitive data should be encrypted.

  • Reasonable access control.  Strong authentication and identity validation techniques will help to protect against unauthorized access to devices and customer data.

Data Minimization Best Practices:

  • Carefully consider data collected.  Companies should be fully cognizant of why some category of data is collected and how long that data should be stored.

  • Only collect necessary data.  Avoid collecting data that is not needed to serve the purpose for which a customer purchases the device. Establish a reasonable retention limit on data the device does collect.

  • Deidentify data where possible.  If deidentified data would be sufficient companies should only maintain such data in a deidentified form and work to prevent reidentification.

Notice and Choice Best Practices:  The FTC initially notes that the context in which data is collected may mean that notice and choice is not necessary. For example, when information is collected to support the specific purpose for which the device was purchased.

When notice or choice are necessary, the FTC offers several suggestions for how a company might give or obtain that, including (1) offer choice at point of sale; (2) direct customers to online tutorials; (3) print QR codes on the device that take customers to a website for notice and choice; provide choices during initial set-up; (4) provide icons to convey important privacy-relevant information, such a flashing light that appears when a device connects to the Internet; (5) provide notice through emails or texts when requested by consumers; and (6) make use of a user experience approach, such personalizing privacy preferences based on the choices a customer already made on another device.

Legislation.  The FTC staff recommends against IoT-specific legislation in the Report, citing the infancy of the industry and the potential for federal legislation to stifle innovation.  Instead, the FTC recommends technology-neutral privacy and data security legislation.  Without saying it explicitly, this appears to be a recommendation for something akin to the Consumer Privacy Bill of Rights recently proposed by the President, along with giving the FTC authority to enforce certain privacy protections, including notice and choice, even in the absence of a showing of deceptive or unfair acts or practices.

In the meantime, the FTC notes that it will continue to provide privacy and data security oversight of IoT as it has in other areas of privacy.  Specifically, the FTC would continue to enforce the FTC Act, the Children’s Online Privacy Protection Act, and other relevant statutes.  Other initiatives would include developing education materials, advocating on behalf of consumer privacy, and participating in multi-stakeholder groups to develop IoT guidelines for industry.