• CAFC rules on attorney conflict of interest in Dr. Falk Pharma case
    in: 未分類  | 

    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.

    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,”
    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)


    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?
    in: 未分類  | 

    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…

  • Biocept Granted US Patent for Blood Collection and Transport Tube – MarketWatch

    Biocept Granted US Patent for Blood Collection and Transport Tube
    The granted patent covers Biocept’s blood collection preservative contained in the tube for collecting patient blood used for circulating tumor cell (CTC) and circulating tumor DNA (ctDNA) genomic analysis at Biocept. The patented collection
    Biocept (BIOC) Announces Patent for Blood Collection and Transport TubeStreetInsider.com
    Biocept Inc.: Biocept Granted U.S. Patent for Blood Collection and Transport TubeThe Wall Street Transcript

    all 5 news articles »

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  • Monday miscellany

    While Tom Gauld‘s humorous look at authorship (right) may not accord with any formal statistical breakdown, anyone who has worked in the field of copyright over the decades will know that there is more than a ring of truth about it: visitations from the dead and divine inspiration have each had their day in court.  Conventional one-person-one-book authorship still predominates, and the demand among readers for light autobiographies of young and sometimes semi-literate sports personalities, sympathetically ghosted by a skilled narrator–cum-amanuensis, ensures that ghost written works will continue to occupy a substantial proportion of supermarket bookshelves for some time to come.  Talented animals are better known for their artistic works, though, and the 9.5% score for ‘nobody knows’ category looks like an overestimate now that the attractions of celebrity authorship and the legal protection of authors’ moral rights make it more profitable to ensure that everyone knows who you are when you write a novel.  Anyway, this cartoon inspired Merpel to ask readers which categories of author Tom Gauld may have overlooked

    Article and sidebar poll on the European Inventor Award.  On Thursday of last week fellow Kat Darren composed a blogpost that took a sharp and unfavourable look at the European Inventor Award. Apart from receiving a bagful of readers’ comments, this post also launched a sidebar poll which has attracted over 200 responses so far — most of which are not at all supportive either of the event itself or of the European Patent Office’s involvement in it. However, there’s plenty of time — ten days — for this to change, so do take the opportunity to cast your vote. If you never visit the IPKat’s home page because you only read posts as emails, you will find the poll on the top of the side bar on the left hand side of that page.

    Sadly, there’s no monopoly
    on financial disappointment

    While on the subject of the European Inventor Award, the IPKat received the following comment by email from Bojan Pretnar. Bojan, who was the first Director of the Slovenian IP Office and held that position for two decades, was also a World Intellectual Property Organization (WIPO) official from 2000 to 2010 and is a proud alumnus of the Max-Planck Institute, Munich. Writes Bojan:

    “During my work at WIPO I was quite frequently, though informally and rather softly, criticising the WIPO medal awards, mainly on the basis of a sad personal experience back in late eighties of the previous century, when a poor inventor from my country (now Slovenia, then still Yugoslavia) was awarded by a similar national award for his invention. The award encouraged the man to spend all his money on filing patent applications abroad, notably in the UK and USA; while the patent was granted in the UK, it was rejected in the USA, where the inventor had the greatest hope to sell or license it. Eventually, the poor man went bankrupt and immediately thereafter he died from a sudden heart attack.

    The lesson I learned from the case is that such awards not only are commercially meaningless, but may even convey false signals to inventors. Though this lesson may not be relevant for the EPO’s awards, it may shed some additional light on such practices. In any case, let me repeat that you are absolutely right that granting such awards are not the task of EPO – at least not under the European Patent Convention.

    To be fair, invention awards competitions do not normally come with any promise of financial success.  However, the point is well made that there is no necessary connection between the commercial potential of a patent on the one hand and inventive merit, social utility or other non-market criterion by which an invention’s excellence may be measured — and this link often exists in the mind of the inventor, who all too often needs no encouragement to believe in the commercial value of his invention.

    Around the weblogs. The 1709 Blog features a post by our good friend Marie-Andrée Weiss on the copyright status — or lack of it — of a 1967 photo of Jimi Hendrix. Over on the Class 46 European trade mark blog, Edith Van den Eede explains the outcome of an opposition to the filing of an application to register as a Community trade mark the figurative mark PORTOBELLO ROAD No. 171 LONDON DRY GIN LONDON ENGLAND, based on nothing other than the word PORTO — which happens to be a Protected Designation of Origin [this doesn’t seem right to Merpel, who likes a gin or two and can’t see any justifiable real-world reason why the applicant’s mark can’t be registered for gin when the PORTO PDO is for Port …]. Over on IP Tango, Patricia Coverrubia, in “Brazil: Federal Court decides for cancellation of a trademark without prior opposition at INPI”, shows how even a fairly conservative and formal legal system can throw up the occasional procedural surprise.

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  • Substandard malaria drugs outnumber fakes, research shows – Daily Trust

    Drug Discovery & Development
    Substandard malaria drugs outnumber fakes, research shows
    Daily Trust
    Substandard or degraded drugs were more prevalent than falsified ones in Enugu, according to the research, and poor quality drugs were frequently found in patent medicine vendors – also known as drug shops, which are the main source of treatment for
    Study in Nigeria Finds 1 in 10 Malaria Drugs Are Poor QualityDrug Discovery & Development

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