News and Articles

Copyrights and Litigation Documents

The matter Unclaimed Property Recovery Service, Inc. v. Kaplan No., 12-4030 (2d Cir., Aug. 20, 2013) presents an issue of whether the holder of a copyright in a litigation document may withdraw the authorization to use the document after the document has already been introduced into the litigation and make subsequent infringement claim for the use of the document in the litigation. The plaintiff in this case, Bernard Gelb and




Claim Construction & Disclaimer –Federal Circuit Sides with the University of Minnesota

07/01/2013 In Regents of the University of Minnesota v. AGA Medical Corp., No. 12-1167 (Fed. Cir. June 3, 2013), the Federal Circuit affirmed the district court’s partial dismissal of a suit brought by the University of Minnesota (“the University”) alleging that AGA Medical Corp. (“AGA”) infringed the University’s medical devices patents. The University’s patents cover medical devices for repairing heart defects. Specifically, the two patents, derived from the same parent




Employee Access vs. Misappropriation of Trade Secrets

The Michigan District Court in Dana Limited v. American Axle and Manufacturing Holdings, Inc., 1:10-cv-00450 (W.D. Mich. Aug. 19, 2013) addressed an important aspect of a trade secret misappropriation claims, holding that the mere fact that a former employee had access to a valid trade secret does not necessarily mean that he or she misappropriated the trade secret just, by the act of accepting employment at a competing company. In May




Court Finds Appropriated and Altered Art Protected Under Fair Use

In the world of art, stimulating creativity becomes a constant battle between allotting freedom to new works of art while protecting original artists. Fundamentally, copyright’s aim is to promote creativity in order to benefit the public. By granting exclusive rights to authors, ideally copyright law incentivizes such creativity by original authors. But copyrights must not hamper free speech, and ideally not derivational creativity with value in the marketplace. This struggle




The Lanham Act and Jim Brown

On July 31, 2013, the Ninth Circuit affirmed dismissal of the Lanham Act claims brought by Jim Brown, a former NFL star, against video game developer Electronic Arts, Inc. (EA). The court concluded that the Rogers balancing test was the appropriate standard to evaluate defendant EA’s use of Brown’s likeness in video games, and since the use of his likeness was artistically relevant to games, it is protected by the




The Federal Circuit Rules on Apple v. ITC

On August 7, 2013, the Federal Circuit affirmed-in-part the lower court’s decision in Apple Inc. v. ITC (2012-1338) finding no Section 337 violation in Certain Mobile Devices, and Related Software Thereof (Inv. No. 337-TA-750). The Federal Circuit ruled that Apple’s U.S. Patent No. 7,663,607, which related to a touch panel with a transparent capacitive sensing medium that can detect multiple touches at once, was invalid for anticipation and obviousness, and




M&A and Government Immunity

The Supreme Court’s decision in FTC v. Phoebe Putney Health System Inc., 133 S. Ct. 1003 (2013) put a limitation on the state immunity under which local governments across the country have relied upon for decades to shield their activities from federal antitrust scrutiny. This decision will open the door to challenging numerous government transactions including the transactions consummated before the Phoebe Putney decision. Until Phoebe Putney, the Supreme Court




The New Way to Challenge A Patent When Threatened: America Invents Act Creates the Post Grant Review

The America Invents Act (AIA) creates new administrative trial procedures to challenge patentability outside litigation before a district court venue. These trial procedures are namely (1) Post Grant Review (PGR), (2) Inter Partes Review (IPR) and (3) a transitional program for covered business method patents. These laws went into effect on September 16, 2012. This article covers the basics of the Post Grant review. Post Grant Review (PGR) Inter Partes




Standard of Review Changes for Freeze-Out Mergers

On May 29, 2013, the Delaware Chancery Court, in its landmark decision of In re MFW Shareholders Litigation (MFW), held that the “deferential business judgment rule” is the correct standard of review for freeze-out mergers, as opposed to the more rigorous “entire fairness standard.” This decision requires that a freeze-out merger, from the inception of merger negotiations, be subject to both (1) negotiation and approval by a fully empowered special committee of




Copyright and Architecture

In 2004, the Fourth Circuit revived a two prong test for a copyright claim involving architecture between two home builders in Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, 2012 WL 5447871 (4th Cir. Nov. 8, 2012). Rick and Jennifer Rubin, who wished to build new home, had visited the plaintiff Ross’s model home and received a copy of a brochure, including the “Bainbridge” model allegedly copied by