For a variety of reasons, Thailand and Brazil have huge backlogs of pharmaceutical patent applications. The delay in patent examinations is creating pressure on the countries to extend patent protection terms to the detriment of access to affordable me…Continue Reading ...
This damaging narrative, which portrays inventors in an incredibly disrespectful way, has been allowed to infect the highest levels of our nation’s government… Aside from the specific classes being targeted by these different monikers, it would seem that the use of the term “patent troll” is not much different than the use of the terms “superpredators” or “deplorables.” Each of them is a gross over-generalization of groups of people that have turned out to be incredibly demeaning and evidence…
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The result of this Hatch-Waxman case was mainly a victory for the patent holder Endo:
The generic drug manufacturers argued generally that
the asserted patents’ claims were invalid or not infringed.
The district court rejected those arguments and found all
asserted claims of the ’122 and ’216 patents not invalid,
and all but two asserted claims infringed. Because there
is no reversible error in the district court’s findings, we
Of details of the district court decision:
The district court concluded that the generic drug
manufacturers failed to show that the asserted claims of
the two patents are invalid. J.A. 128–29. Specifically, the
court found that the asserted claims of the two patents
are not invalid for obviousness; that the asserted claims
with the dissolution limitations are not invalid for lack of
written description; and that the asserted claims reciting
the multiple peaks limitations are not invalid for indefiniteness.
The court also found that Endo carried its
burden to show that defendants infringe or will infringe
all but two of the asserted claims of the ’122 and ’216
patents. J.A. 72–73. The court then issued a permanent
injunction against Actavis’s manufacture, use, offer to
sell, or sale of its generic version of OPANA®ER prior to
the expiration of the ’122 and ’216 patents. J.A. 182.
Of teaching away:
Amneal contends that the court erred by finding that
oxymorphone’s low bioavailability teaches away from
attempting a controlled release formulation. Overwhelming
evidence at trial, however, supports that factual
finding. Expert testimony showed that a skilled artisan
would not have been motivated to select oxymorphone for
use in a controlled release setting because of its “exceptionally
low bioavailability.” J.A. 98. As the district court
noted, the Oshlack reference also taught that “bioavailability
is a significant, even crucial, factor in evaluating a
drug’s suitability for placement in a controlled release
vehicle.” J.A. 92. The court also observed that “[t]he
notion that low-bioavailability drugs were considered
unsuitable for extended-release formulation is reinforced
by the fact that, until Endo’s development of OPANA®ER,
there were remarkably few such examples.” J.A. 94. For
example, the existence of another low-bioavailability
drug, oxybutynin—a non-opioid analgesic, unlike oxymorphone—which
had previously been developed into a
controlled release formulation, served to underscore “the
fact that low bioavailability drugs were remarkably rare
in controlled-release settings.” J.A. 95. Indeed, “its total
absence from the expert reports of both sides, impressed
on the court that low-bioavailability drugs were, at the
time of the invention, perceived as unsuited for development
into controlled release forms.” Id. Tellingly, Appellants’
own expert maintained the view that active
ingredients with poor bioavailability would not be good
candidates for controlled release dose forms. J.A. 2769.
Appellants contend that the low bioavailability of oxymorphone
could be addressed by increasing the dosage.
The district court did not err in rejecting that argument.
The court found, based on published research, that such
an approach “risk[ed] toxicity.”
Oxymorphone’s inclusion in Maloney’s and Oshlack’s
lists of candidate molecules does not alter this conclusion.
Those lists mention oxymorphone among a vast number of
other molecules, including drugs such as heroin, opium,
and fentanyl, so the district court doubted that the lists
would be taken seriously as indicating suitability for
controlled release treatment. J.A. 96–98. The court
noted, for example, that fentanyl was widely understood
as suitable only for transdermal, not oral, delivery. J.A.
96–97. Given that context, the district court reasonably
found that a skilled artisan would not have viewed oxymorphone
as suitable for a controlled release setting.
Moreover, neither Penwest S-1 nor Cleary discloses any
technical details, such as dosing interval or twelve-hour
efficacy, for achieving the claimed inventions. J.A. 3144–
45. Accordingly, a person of ordinary skill, upon reading
those references, would have been strongly discouraged
from using oxymorphone in a controlled release setting.
The district court did not clearly err in finding that the
references taught away from the claimed invention.
Of written description
The written description requirement provides that a
patentee’s application for a patent must “clearly allow
persons of ordinary skill in the art to recognize that [he]
invented what is claimed.” Ariad Pharm., Inc. v. Eli Lilly
& Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc)
(quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563
(Fed. Cir. 1991)). “[T]he test for sufficiency is whether the
disclosure of the application relied upon reasonably
conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing
Of injunction and irreparable harm:
Continue Reading ...
Endo relatedly demonstrated, mainly through trial
testimony, that it had to lay off its sales force, which may
damage its reputation in the market segment and make
the company less attractive to potential new hires. The
court found that such irreparable harm cannot be adequately
addressed without an injunction.
In 2015, the Coalition for Affordable Drugs X LLC
filed a petition requesting inter partes review of all 12
claims of the ’621 patent. The Board instituted review
and found that the claims would have been obvious in
light of the combination of Int’l Pat. Appl. No.
PCT/GB95/01206 (“Austin”) and U.S. Pat. Appl. No.
10/077,521 (“Brehove”). Both Austin and Brehove teach
the use of boron heterocycles as antifungal agents that
inhibit C. albicans, among other fungi. Boron heterocy-
cles are organic compounds that contain both boron and
carbon in a ring structure.2
Austin teaches the use of oxaboroles—boron heterocycles
that include a five-member ring containing three
carbon atoms, one oxygen atom, and one boron atom—as
fungicides. Austin discloses tavaborole as one of a small
group of oxaboroles that were tested for antifungal activity
and teaches that tavaborole is a highly effective agent
that inhibits a variety of fungi, including C. albicans.
Dr. Stephen Kahl, another of the petitioner’s experts,
testified to the same effect. He stated, “I think a
[person of ordinary skill] would presume that if a compound
showed significant antifungal activity against any
of a variety of fungi, would have reasonable reason to look
at those against a specific fungus and expect some success.
. . . [F]ungi are rather simple organisms. And it’s
not unusual that a compound that . . . has antifungal
activity in one fungus, might be expected or at least
evaluated in another fungus.”
Of Anacor’s arguments:
On appeal, Anacor first argues that the Board violated
due process and the procedural requirements of the
Administrative Procedure Act (“APA”) by failing to provide
Anacor with adequate notice of, and an opportunity
to respond to, the grounds of rejection ultimately adopted
by the Board.
Under the APA, a patent owner involved in an inter
partes review is entitled to notice of and a fair opportunity
to address the grounds of rejection. 5 U.S.C. §§ 554(b)–
(c), 557(c); Dell Inc. v. Acceleron, LLC, 818 F.3d 1293,
1301 (Fed. Cir. 2016). Therefore, an agency “may not
change theories in midstream without giving respondents
reasonable notice of the change and the opportunity to
present argument under the new theory.” Genzyme
Therapeutic Prod. Ltd. P’ship v. Biomarin Pharm. Inc.,
825 F.3d 1360, 1366 (Fed. Cir. 2016) (quoting Belden Inc.
v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)).
Anacor argues that the Board’s decision violated the
APA and due process in two related ways. First, Anacor
contends that the petitioner abandoned one prior art
reference in its reply (Brehove) and shifted to a new
theory of invalidity (relying on Austin in light of Segal
and Mertin), and that the Board adopted that new theory
without giving Anacor proper notice or an opportunity to
respond to it. Second, Anacor argues that, in bolstering
this new theory of obviousness, the petitioner impermissibly
relied on new evidence, not included in the petition, to
satisfy its burden of showing a prima facie case of obviousness.
We reject Anacor’s argument that the Board violated
the APA or due process by adopting a new theory of
obviousness not presented in the petition. Unlike in In re
NuVasive, Inc., 841 F.3d 966 (Fed. Cir. 2016), on which
Anacor relies, the Board’s final written decision was
based on the same combination of references—Austin and
Brehove—and the same series of inferences that the
We also reject Anacor’s argument that the Board improperly
relied on new evidence to which Anacor did not
have an opportunity to respond. Anacor argues that the
Board improperly cited two references—Mertin and
Segal—that were not cited in the petition. There is,
however, no blanket prohibition against the introduction
of new evidence during an inter partes review proceeding.
In fact, “the introduction of new evidence in the course of
the trial is to be expected in inter partes review trial
proceedings and, as long as the opposing party is given
notice of the evidence and an opportunity to respond to it,
the introduction of such evidence is perfectly permissible
under the APA.” Genzyme, 825 F.3d at 1366; see also
Novartis AG v. Torrent Pharm. Ltd., 853 F.3d 1316, 1325–
26 (Fed. Cir. 2017) (finding no APA violation because
patent owner was not “surprised” where a reference was
discussed in patent owner’s response, in depositions, and
at the hearing, because “it is quite clear that [the patentee]
had more than sufficient notice and opportunity to be
heard on [the reference’s] potential relevance”).
In addition, the petitioner in an inter partes review
proceeding may introduce new evidence after the petition
stage if the evidence is a legitimate reply to evidence
introduced by the patent owner, or if it is used “to document
the knowledge that skilled artisans would bring to
bear in reading the prior art identified as producing
obviousness.” Genzyme, 825 F.3d at 1369 (quoting Ariosa
Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1365
(Fed. Cir. 2015)).8
It was not improper for the Board to cite Segal and
Mertin (along with Nimura) as evidence of the knowledge
that a skilled artisan would bring to bear in reading
Austin and Brehove, even though those references were
not cited in the petition. Anacor argues that Segal, Mertin,
and Nimura “surfaced for the first time in Petitioner’s
Reply,” but that is not so. Anacor discussed both Nimura
and Segal in its patent owner’s response and related
submissions; indeed, Anacor spent three pages of its
patent owner’s response addressing Segal. For that
reason, it was not improper for the Board to rely on those
references to show what a person of skill in the art would
believe about whether a compound effective against a
yeast such as C. albicans would be likely to be effective
against a dermatophyte.
Anacor next argues that the Board improperly shifted
the burden of proof by requiring the patent owner to
disprove obviousness. Relying on In re Magnum Oil Tools
International, Ltd., 829 F.3d 1364 (Fed. Cir. 2016), Anacor
contends that the record provides no basis to conclude
that tavaborole’s activity against dermatophytes would be
expected and that, in adopting the petitioner’s position
without supporting evidence, the Board necessarily shifted
the burden of proof to Anacor.
Unlike in In re Magnum, nothing in the Board’s final
written decision suggests that the Board improperly
shifted the burden to the patent owner to disprove obviousness.
To the contrary, the Board expressly and repeatedly
stated that it was the petitioner’s burden to
“show by a preponderance of the evidence that claims 1–
12 of the ’521 patent are unpatentable.” Final Written
Decision, at 3; see also id. at 9, 10, 18, 22, 23, 37, 42
Notwithstanding those statements, Anacor arguesContinue Reading ...
that the Board effectively shifted the burden of proof to
the patent owner because the Board’s conclusions rested
not on the petitioner’s presentation of evidence in support
of an argument, but rather on whether Anacor had sufficiently
disproved that argument. In particular, Anacor
contends that the Board failed to require proof from the
petitioner as to the mechanism of action that would lead
to the conclusion that tavaborole would kill both C. albicans
and dermatophytes, and that the Board did not
explain why the evidence that dermatophytes are usually
more sensitive than yeasts to antimycotics applies to
In substance, Anacor’s argument is not that the Board
shifted the burden of proof to Anacor, but that the Board
improperly relaxed the burden on the petitioner to prove
its case. That argument, however, does not suggest that
the Board shifted the burden of proof to Anacor, but
instead is directed to the question whether there was
substantial evidence to support the Board’s finding of
Brazil is frequently pointed to as one of the countries in which fewer pharmaceutical patents are granted. The fact that there is a low number of patents granted could lead to the conclusion that medicines can be bought under competition and that the prices would be low. However, many medicines in Brazil are bought exclusively from one producer and usually at high prices. The situation of few granted patents, but many purchases under exclusivity due to absence of competition (which can lead to higher prices), is what we are calling the ‘patent paradox in Brazil’. In the absence of granted patents, what are the factors that lead to the situation of no competition and high prices in Brazil? This is the question that we, at the accessibsa: Innovation & Access to Medicines in India, Brazil & South Africa, aim to answer with a study currently being conducted at the Department of Medicines Policy and Pharmaceutical Services (NAF) of the Sergio Arouca National School of Public Health – ENSP/Fiocruz.Continue Reading ...
The outcome was that Praxaire won its appeal as to claim 9:
Praxair Distribution, Inc. (“Praxair”) appeals from the
inter partes review decision of the United States Patent
and Trademark Office Patent Trial and Appeal Board
(“the Board”) holding claim 9 of U.S. Patent 8,846,112
(the “’112 patent”) not unpatentable as obvious under 35
U.S.C. § 103 (2006).1 Praxair Distrib., Inc. v. Mallinckrodt
Hosp. Prods. IP Ltd., No. IPR2015-00529, 2016 WL
3648375 (P.T.A.B. July 7, 2016) (“Decision”). Mallinckrodt
Hospital Products IP Ltd. (“Mallinckrodt”) crossappeals
from the same decision holding, inter alia, claims
1–8 and 10–11 unpatentable as obvious. Because we
conclude that the Board did not err in its conclusions as to
claims 1–8 and 10–11, but did err with respect to claim 9,
we affirm the Board’s decision in part and reverse it in
Of the review by the CAFC of a PTAB ruling:
Our review of a Board decision is limited. In re Baxter
Int’l, Inc. 678 F.3d 1357, 1361 (Fed. Cir. 2012). We review
the Board’s legal determinations de novo, In re Elsner,
381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the
Board’s factual findings underlying those determinations
for substantial evidence, In re Gartside, 203 F.3d 1305,
1316 (Fed. Cir. 2000). A finding is supported by substantial
evidence if a reasonable mind might accept the evidence
as adequate to support the finding. Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938).
As to claim 9:
That does not end the inquiry, however, as we must
still consider whether claim 9 as a whole would have been
obvious to a person of ordinary skill at the time of the
invention. In assessing obviousness, the Board found that
Bernasconi taught that inhaled nitric oxide may lead to
pulmonary edema in patients with LVD, and emphasized
the “need for careful observation and intensive monitoring
during [nitric oxide] inhalation” in patients with LVD.
Decision, 2016 WL 3648375, at *13. Nonetheless, the
Board held that Bernasconi did not render claim 9 obvious
for two reasons, both of which we reject.
First, in addressing the differences between the prior
art and claim 9, the Board found that Bernasconi did not
“teach or suggest that treatment with [nitric oxide]
should be discontinued in pediatric patients with LVD
that experience pulmonary edema,” as required by
claim 9. Id. at *19. Rather, the Board found Bernasconi
to be “contrary to [its] interpretation of the claim language”
because Bernasconi taught “that [nitric oxide] may
be given to patients with LVD, as long as those patients
are monitored carefully during treatment.” Id. (emphasis
added). The Board’s finding is premised on an incorrect
reading of claim 9, and under the correct reading Bernasconi
is not “contrary to” claim 9. The Board conflated
excluding a patient with LVD from nitric oxide treatment
and discontinuing nitric oxide treatment in a patient with
LVD after that patient experiences a pulmonary edema.
But claim 9 does not permit, let alone require, excluding
patients with LVD from nitric oxide treatment. Instead,
claim 9 recites that nitric oxide be given to patients with
LVD, and be discontinued if a pulmonary edema occurs.
Thus Bernasconi’s teaching that patients with LVD could
be treated with nitric oxide if carefully monitored is not
contrary to the claim language, and the Board erred by
interpreting claim 9 otherwise.
Second, the Board found “compelling” Mallinckrodt’s
evidence of secondary considerations that “patients were
not excluded” from the INOT22 study, despite the known
relationship between nitric oxide treatment and pulmonary
edema for patients with LVD. Decision, 2016 WL
3648375, at *19. The Board found persuasive the inference
that “if it were obvious to a person of ordinary skill
in the art to exclude” such patients from the study, the
researchers conducting the INOT22 study would have
done so. Id. The Board’s secondary considerations analysis
also rested on its “excluding” interpretation of claim 9.
But, because we conclude that claim 9 requires administering
nitric oxide to patients with LVD, Mallinckrodt’s
evidence of secondary considerations regarding the failure
of researchers to exclude such patients from the INOT22
study lacks sufficient nexus to the claim. See Classco, Inc.
v. Apple, Inc., 838 F.3d 1214, 1220 (Fed. Cir. 2016).
In sum, both the Board’s findings regarding the differencesContinue Reading ...
between the prior art and claim 9 and its findings
on secondary considerations depended on an
incorrect interpretation of that claim, and we therefore
hold that they are not supported by substantial evidence.
See In re Smith Int’l, Inc., 871 F.3d 1375, 1384 (Fed. Cir.
We also conclude that remand is unnecessary. The
Board’s uncontested findings regarding Bernasconi render
claim 9 obvious under the proper reading of the claim.
The Amgen v. Sanofi decision put most functional antibody claims into question, including epitope and competitive binding claims, as well as antibody claims based on a newly characterized antigen. After Amgen v. Sanofi, non-sequence based antibody claims may become more difficult to obtain before the USPTO from a written description standpoint. Yet, to fully protect the essence of the invention and avoid design-arounds, such claims are extremely valuable to patent owners. To obtain antibody…
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(INVERT/INVERSE)Continue Reading ...
$$ It will be appreciated by those skilled in the art that by inverting the above arrangement the vehicles 1 can be configur…
by Dennis Crouch
In February 2018, I wrote an essay titled Patents and Antitrust: Trump DOJ Sees Little Connection. USDOJ’s chief antitrust lawyer Makan Delrahim has repeatedly stated his position that patent holders rarely create antitrust concerns — even in the standard setting organization and FRAND framework. Mr. Delrahim explained recently:
By denying injunctive relief to standard essential patent holders except in the rarest circumstances, courts in the U.S. run the risk of turning a FRAND commitment into a compulsory license. As a defender of competitive markets, I am concerned that these patent law developments could have an unintended and harmful effect on dynamic competition by undermining important incentives to innovate, and ultimately, have a detrimental effect on U.S. consumers.
Another advocacy position we have taken relates to how patent holders are held to their commitments to license on FRAND terms. . . [U]nilateral patent hold-up is not an antitrust problem. Where a patent holder has made commitments to license on particular terms, a contract theory is adequate and more appropriate to address disputes that may arise regarding whether the patent holder has honored those commitments. . . .Continue Reading ...
On Wednesday, May 16, 2018, Jorge Ortiz of USAToday headlined that Brandon Belt of the San Francisco Giants
questioned the integrity of an umpire and wrote:
On Wednesday it was the San Francisco first baseman [Belt] who expressed his frustration, in
clear and accusatory terms against home plate umpire Doug Eddings.
Belt, who took a questionable third strike for the game’s final out in the Giants’ 6-3 loss
to the Reds, said Eddings has previously expressed a desire to end games quickly and reiterated
that notion on Wednesday.
Reds closer Raisel Iglesias got the call on a 3-2 fastball that MLB.com’s Gameday showed was clearly outside.
Video of call at
Belt stepped to the plate with a runner on second base and two outs in the bottom of the ninth inning
at AT&T Park. Facing closer Raisel Iglesias, Belt worked the count full before plate umpire Doug
Eddings called a third strike on a fastball just off the plate to end the game .
Afterward, Belt said there was no question he got cheated on the call and insinuated that
Eddings made it to get a matinee that lasted 2 hours, 41 minutes over with.
Neither post went into great detail about “how far off the plate” the pitch was. The video does suggest it was not a strike. The story was the call-out of the umpire for “ending the game” prematurely.
Also of possible relevance to ending the game prematurely is the case Kenny v. Denbo, CA3, No. 17-2342, which involves themes of plagiarism, intellectual property, Blackboard software, and arbitration.
The short description given by CA3:
Adjunct Professor Robert Kenny substituted for Professor Susan Denbo while she was
on sabbatical. After an arbitration, he was suspended for borrowing her syllabus. Kenny’s
borrowing resulted from an excusable misunderstanding. Only later did evidence come out
that Denbo had passed along that syllabus specifically for the adjunct to use. But the unavailability
of certain evidence at the arbitration does not justify rescinding his settlement.
Of “ending the game prematurely,” CA3 wrote of the arbitration:
After Rider’s opening statement, and ten minutes into the Union’s opening, the arbitrator
cut off the Union’s lawyer and held a sidebar conference. When the Union’s lawyer
returned from that conference, he relayed to Kenny and to the Rider faculty’s Union representative
that the arbitrator “wanted to see a settlement,” and “gave a broad outline” of
the sort of agreement the arbitrator had in mind. DA 277. According to the Union’s lawyer,
the arbitrator felt that any settlement “needed to include [Kenny’s] suspension.” Id.
The Union’s lawyer came back to Kenny with a proposed settlement and presented it
as a fait accompli. Kenny signed it. As part of the settlement, he apologized in writing to
Denbo and accepted a suspension for the fall of 2012. Neither side admitted wrongdoing.
Since then, Rider has not offered Kenny any teaching assignments. When Kenny applied
for unemployment compensation, Rider told the state authorities that Kenny had been suspended
for misconduct. So his application was denied.
Of plagiarism and intellectual property, CA3 wrote
Denbo sincerely believed that Kenny’s conduct amounted to
plagiarism, so her statement was not knowingly false. And her mistake about Kenny’s permission
does not amount to reckless disregard of the truth. See id. at 777. She did not give
the syllabus directly to him and was not completely unreasonable in believing that passing
it along to Sprotzer did not authorize verbatim copying. That is particularly true because
the Collective Bargaining Agreement recognized syllabi as intellectual property. No reasonable
juror could find otherwise. So the statements are privileged, not libelous
Plagiarism is copying (basically anything) without attribution. Whether or not the the Agreement recognized
syllabi as intellectual property is not relevant to the charge of plagiarism (AND there is no federal/state cause of action
for “plagiarism” AND see below about custom and practice at this school, Rider University).
CA3 did not mention who was the owner/author of the syllabi intellectual property. One might
infer, in context, that the professor owns the intellectual property of the syllabus because of the Agreement, but otherwise one might be
in a “work for hire” context. One might also suspect that there is a lot of copying of syllabi going on.
Of Blackboard, CA3 wrote:
Kenny also visited Rider’s Blackboard website, where faculty post course materials,
and downloaded a copy of the syllabus from Denbo’s web page. Denbo’s Blackboard settings,
which were not the default, let guests access her other course materials as well, including
student resources and assignments. But Kenny did not download or share them. He
tweaked the syllabus’s grading scale, but otherwise kept the readings, sequence, and assignments
verbatim. Then he uploaded the syllabus to the spring 2012 course module
Nonetheless, Denbo was “outraged!!!!!” by all this. DA 86. In a series of emails to
Rider administrators, she accused Kenny of “EXTREME unethical behavior,” fuming that
he had accessed “MY ENTIRE BLACKBOARD!!!” using the guest access permitted by
her Blackboard privacy settings. DA 99. Denbo also fulminated that Kenny’s syllabus “is
IDENTICAL to my syllabus and references all of my Blackboard materials.” Id. In followup
emails, she continued her tirade, deploying such punctuation-peppered interjections as
“UGH!!!!” and “REALLY?????????” DA 102, 105. Even though she conceded that “he
assured me that he had not posted anything yet,” she suggested that Kenny never teach at
Rider again. DA 99-100
Somewhat related to the Rutgers/San Filippo case (but with a different outcome):
Rider acceded to Denbo’s request. For the first time at Rider (as far as we know), an adjunct professor was
disciplined for using a syllabus given to him by his department chair for a course that he
was hired to substitute teach. As the Union grievance officer testified, in his thirty-eight
years at Rider, he had never seen syllabi posted with attribution. And Sprotzer conceded
that he had never heard of any university where adjuncts were given syllabi but needed to
seek further permission to use them. App. 315-16. He also admitted that Rider developed
its unwritten policy against such borrowing only after Kenny’s arbitration.
[The San Filippo case involved 14th Amendment issues. See
Flipping Filippo, Batman, Gunasekera files federal suit against Ohio U./officials ]
Initially, Kenny’s defense related to his access using Blackboard:
As the Union’s letter explained, Kenny had “reasonabl[y] but inaccurate[ly] assum[ed]”
that, because Denbo made her course materials available to guests on Blackboard, she had
given implied permission to use them. DA 61. The Provost rejected these arguments and
sustained the discipline
Of the summary judgment on libel:
The District Court arguably erred in finding
that Denbo’s statements were mere opinion rather than factual. But “[w]e can affirm
the District Court’s grant of summary judgment on any basis supported by the record.”
United States ex rel. Spay v. CVS Caremark Corp., 875 F.3d 746, 753 (3d Cir. 2017)
Of the discovery issue, CA3 wrote
was not allowed to depose witnesses, but it asked for all materials collected during the
Provost’s investigation, including correspondence, emails, and Blackboard records
The interpretation of this was that if emails were not collected, they were not within the scope.
By this logic, the recipient of a discovery request could choose not to collect certain emails during
the investigation, and they would not fall within the scope of discovery.
CA3 wrote of duty to disclose:
But Kenny has produced no evidence that could justify a jury in finding a misrepresentation
here. Not turning over the three emails in question could amount to one only if Rider had
an obligation to do so. And while New Jersey does recognize that “[s]ilence in the face of
a duty to disclose may constitute a fraudulent concealment,” it imposes such a duty only in
limited circumstances. See United Jersey Bank v. Kensey, 704 A.2d 38, 43 (N.J. Super. Ct.
App. Div. 1997). This is not a case involving—at least as between Kenny and his employer—“fiduciary
relationships such as principal and agent.” Id. at 44.
Nor are settlement negotiations the kind of “transactions which in their essential nature,
are intrinsically fiduciary, and necessarily call for perfect good faith and full disclosure.”
Id. (internal quotation marks and alteration omitted). In other circumstances, the New Jersey
courts have declined to find a quasi-fiduciary relationship when the parties act “at armslength,
… in their own interest,” and stand in “essentially adversarial” positions. Id. at 44-
45 (discussing lender-borrower negotiations). All of these qualities are present in a labor
arbitration conducted, like this one, between sophisticated parties represented by counsel.
Trademark cancelled for failure to respond in discovery
which references the PatentlyO post
as to text
(3) “failing to consider Dr. Adames’ [own] plagiarism” (he had copied portions
of his syllabus from another professor without attribution);
We may affirm the trial court’s judgment after a bench trial on any basis in the record,
regardless of whether the trial court relied on that basis or whether the trial court’s reasoning was
correct. Northwestern Memorial Hospital v. Sharif, 2014 IL App (1st) 133008, ¶ 25. We affirm
the trial court’s judgment in favor of defendant on plaintiff’s breach of contract action, not on the
grounds stated by the court (which were based solely on plaintiff’s failure to appeal her dismissal
to the dean of academic affairs and on the lack of proof of damages) but rather on plaintiff’s
failure to meet her heavy burden of proving that defendant acted in an arbitrary, capricious, or
bad-faith manner by dismissing her without any discernible rational basis.
concerning Drobetsky v. Chicago School of Prof. Psych.Continue Reading ...
by Dennis Crouch
Due process ordinarily requires that a court have personal jurisdiction over the parties to a lawsuit. In its 2016 opinion, the District Court dismissed M-I Drilling’s lawsuit against the Brazilian company Dynamic Air Ltda. (DAL) for lack of personal jurisdiction. M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda, 2016 U.S. Dist. LEXIS 27357, 2016 WL 829900 (D. Minn. 2016). On appeal here, the Federal Circuit has reversed. M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 2018 U.S. App. LEXIS 12497 (Fed. Cir. May 14, 2018).
Law of the Flag: The alleged infringement here did not occur within the United States proper, but rather aboard U.S. flagged ships in international waters – the vessels Resolution and Pinnacle. The district court held that the U.S. Patent Act applies to U.S. flagged ships — “While on the high seas, a vessel is deemed to be part of the territory of the nation to whose citizens it belongs, and under whose flag it sails.” However, the district court then dismissed the case for lack of personal jurisdiction.
Personal Jurisdiction over a Foreign Entity: In most U.S.Continue Reading ...