• CAFC rules on attorney conflict of interest in Dr. Falk Pharma case
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    CAFC rules on attorney conflict of interest in Dr. Falk Pharma case

    The outcome was disqualification:

    At issue are three motions to disqualify Katten Muchin
    Rosenman LLP as counsel for Mylan Pharmaceuticals Inc.
    (“Mylan”) in three appeals before this court. Valeant Pharmaceuticals
    International, Inc. (“Valeant-CA”) and Salix
    Pharmaceuticals, Inc. (“Salix”) move to disqualify in Valeant
    Pharmaceuticals International, Inc. v. Mylan Pharmaceuticals Inc.,
    No. 2018-2097 (“Valeant II”), Salix moves to
    disqualify in Salix Pharmaceuticals, Inc. v. Mylan Pharmaceuticals Inc.,
    Nos. 2017-2636, 2018-1320 (“Salix II”), and
    Valeant-CA and Salix move to disqualify in Dr. Falk
    Pharma GmbH v. GeneriCo, LLC, No. 2017-2312 (“Dr. Falk
    II”). Because we find that Katten has an ongoing attorney client
    relationship with Valeant-CA and its subsidiaries,
    including Salix, we conclude that Katten’s representation
    of Mylan in these appeals presents concurrent conflicts of
    interest. Therefore, we grant the motions to disqualify.

    Of the issue


    Specifically, Salix—a movant in all three appeals—
    is a wholly-owned subsidiary of Salix Pharmaceuticals,
    Limited, which is a wholly-owned subsidiary of ValeantDE, which is an indirect,
    wholly-owned subsidiary of Valeant-CA. Bausch & Lomb is also an indirect subsidiary of
    Valeant-CA and an affiliate of the above-listed entities.
    Valeant-CA contends that it has been a longstanding
    client of Katten, both directly and through its subsidiaries.

    (…)

    Mukerjee and Soderstrom, then at Alston & Bird, represented Mylan
    throughout the district court litigation. On
    May 3, 2018, Mylan notified the district court that Mukerjee and Soderstrom
    had left Alston & Bird to join Katten.
    On May 25, 2018, Valeant-CA filed a motion to disqualify
    Katten in the district court action. Mylan timely appealed
    the district court’s summary judgment on June 22, 2018.
    Valeant-CA then filed a motion to disqualify Katten in this
    court on July 9, 2018, and the district court stayed a decision
    on the motion to disqualify pending before it. We
    stayed the parties’ briefing on the merits in this appeal
    pending our decision on the motion. Valeant II, ECF No.
    24.

    Of applicable rules


    In Valeant, the relevant regional circuit is the
    Third Circuit, which applies the professional conduct rules
    of the forum state. See United States v. Miller, 624 F.2d
    1198, 1200 (3d Cir. 1980). The forum state, New Jersey,
    has adopted the Model Rules of Professional Conduct. N.J.
    Rule of Prof’l Conduct 1.7(a). In Salix, the relevant regional
    circuit is the Fourth Circuit, which applies the rules
    of professional conduct of the forum state. See Shaffer v.
    Farm Fresh, Inc., 966 F.2d 142, 145 (4th Cir. 1992). The
    forum state, West Virginia, has also adopted the Model
    Rules. W. Va. Rule of Prof’l Conduct 1.7(a). Finally, in Dr.
    Falk, the U.S. Patent and Trademark Office is the relevant
    forum and it has also adopted the Model Rules. 37 C.F.R.
    § 11.107(a).
    (…)
    Indeed, Comment
    34 to Rule 1.7, which addresses “organizational clients,”
    states:
    A lawyer who represents a corporation or other organization does not,
    by virtue of that representation, necessarily represent any constituent or
    affiliated organization, such as a parent or subsidiary. See Rule 1.13(a).
    Thus, the lawyer for an organization is not barred from accepting
    representation adverse to an affiliate in an unrelated matter, unless the circumstances are such
    that the affiliate should also be considered a client
    of the lawyer, there is an understanding between
    the lawyer and the organizational client that the
    lawyer will avoid representation adverse to the client’s affiliates, or the lawyer’s obligations to either
    the organizational client or the new client are
    likely to limit materially the lawyer’s representation of the other client.
    Model Rules of Prof’l Conduct r. 1.7 cmt. 34 (Am. Bar Ass’n
    2018) (emphasis added). Circumstances in which an affiliate is considered a client of a lawyer can arise by express
    agreement or when affiliates are so interrelated that representation of one constitutes representation of all. GSI
    Commerce Sols., Inc. v. BabyCenter, LLC, 618 F.3d 204,
    210–12 (2d Cir. 2010)

    Irrational!

    We find this reading of the engagement letter to be irrational.
    Section 1.2 does not indirectly authorize Katten
    to represent parties adverse to Valeant-CA and Salix so
    long as Katten remains a non-key firm. Rather, section 1.2
    expects a heightened degree of loyalty from key firms,
    requiring something more than mere adherence to the ethical
    rules. It states that key firms should not represent “any
    party” in “any matters” that would conflict with “any Valeant entity.”
    Gorman Decl. Ex. A, at § 1.2. This reference
    to “any matters” encompasses, as Valeant-CA stated at oral
    argument, a “blunderbuss” limitation on key firms to avoid,
    not only matters that give rise to ethical conflicts, but also
    those that give rise to other types of conflicts. See Oral Arg.
    at 9:36. Other types of conflicts could include, for example,
    a matter involving the filing of an amicus brief that presents
    no ethical conflict under the rules of professional conduct, but that espouses a legal position contrary to one
    taken by a Valeant entity in another case. Thus, section
    1.2 broadens the degree and type of loyalty expected from
    key firms.

  • The retraction by Nature of the Samaha work:  is Gaetan Burgio correct on who is responsible for improper submissions to journals?
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    The retraction by Nature of the Samaha work: is Gaetan Burgio correct on who is responsible for improper submissions to journals?

    DIANA KWON of The Scientist discusses the retraction by Nature of a paper co-authored by oncologist Nabil Ahmed and Heba Samaha. Of note within her text:


    But starting last October, a few weeks after the paper was posted online, comments about potential image manipulation in the article began to appear on PubPeer, and the issue quickly caught the attention of scientists on social media.

    Gaetan Burgio, a geneticist at Australian National University who posted a widely circulated Tweet about the manuscript, notes that the extent of alleged image duplication identified in this paper was “quite exceptional.”

    (…)

    According to the retraction notice posted today, the authors are pulling the paper “due to issues with figure presentation and underlying data.” All the authors, except Samaha, the first author, agreed with the retraction.

    “Unfortunately, issues were identified in the presentation of several figure panels and the underlying data [in the paper],” Ahmed writes in an email to The Scientist. “I promptly notified the office of research at Baylor College of Medicine, which is looking into the cause of these issues.”

    (…)

    Some commenters on both PubPeer and social media suggested that the duplicated images should have been caught by peer reviewers. But Burgio believes that the responsibility lies with the publisher, not the reviewer. “I think it’s on the publisher to ensure that the paper doesn’t contain any image duplication or plagiarism,” he says. “It’s unfair to rely solely on the reviewer to police the paper.”

    Nature currently conducts random spot checks of images in manuscripts prior to publication. “If concerns about a figure in a Nature paper are raised, we have software tools that enable us to evaluate images in detail,” a Nature spokesperson writes in an emailed statement to The Scientist. (The spokesperson also noted that the journal could not comment on individual articles for confidentiality reasons).

    Some journals, such as the Journal of Cell Biology and The EMBO Journal, have implemented procedures to screen figures in every article prior to publication. “This [practice] is absolutely admirable,” Ferguson says. “How to screen really carefully for image manipulation prior to publication is something that most journals will have to address.”

    As to the issue of plagiarism, IPBiz disagrees with Burgio: it is the people who have knowledge of the field (the reviewers) who should be most responsible for identifying the copying of material, whether it is slavish word-for-word duplication or more subtle forms of intellectual theft.
    IPbiz has already posted examples of plagiarism identified by readers, who are familiar with the given field, rather than publishers, who are not.

  • Mandamus Relief Denied: Federal Circuit Avoids Clarifying TC Heartland in In re Google LLC
    in: CAFC, Chief Judge Sharon Prost, courts, en banc rehearing, Federal Circuit, Federal Circuit Review, Google, Guest Contributor, Guest Contributors, In re Cray, In re Google, Intellectual Property, IP News, IPWatchdog Articles, Judge Alan Lourie, Judge Chen, Judge Evan Wallach, Judge Jimmie Reyna, Judge Kara Stoll, Judge Kathleen O'Malley, Judge Moore, Judge Pauline Newman, Judge Richard Taranto, Judge Timothy Dyk, Judge Todd Hughes, Litigation, Mandamus, Patent Litigation, Patently-O, patents, TC Heartland v. Kraft Foods, venue  | 

    Mandamus Relief Denied: Federal Circuit Avoids Clarifying TC Heartland in In re Google LLC

    The Federal Circuit recently elected not to decide en banc “whether servers are a regular and established place of business, such that venue is proper under 35 U.S.C. § 1400(b). In re: Google LLC, No. 2018-152 (Fed. Cir. Feb. 5, 2019) (Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges) (Dissent by Reyna, Circuit Judge, joined by Newman and Lourie, Circuit Judges). SEVEN Networks, LLC’s (SEVEN) patent infringement…