The problem many legal marketers face when it comes to social media is how to measure it, since social media delivers as many if not more intangibles than it does tangible things like clicks, likes and visits. To gauge the true value for your law firm, consider these 10 ways that your firm may already be benefitting beyond the obvious: Brand building. Since social media is your unfiltered voice, you have a great opportunity to build your brand. Community. Social networks allow you to create a community and engage in a dialogue with prospects and clients who will tell you what they need and want from your firm. This is a great way to gather meaningful market research. Exposure. It takes a minimum of 7-10 exposures for a prospect to decide to make a purchase. Social media gives you a number of different avenues for getting repeat exposure. Authority. Being active on social platforms helps you establish authority in your area of practice. Influence. As you … [Read more...]

Fifteen months after the U.S. Supreme Court’s landmark decision in Spokeo, Inc. v. Robins (Spokeo II), 136 S. Ct. 1540 (2016), the Ninth Circuit issued its opinion on remand.  The only question before the Ninth Circuit was whether the plaintiff’s allegations regarding his injuries – resulting from Spokeo’s alleged violation of the Fair Credit Reporting Act (the “FCRA”) – were sufficiently concrete to confer Article III standing.  In Spokeo III, the Ninth Circuit answered that question in the affirmative, finding that (1) the relevant provisions of the FCRA were established to protect the concrete interests of consumers like plaintiff, and (2) plaintiff alleged actual harm to his concrete interests resulting from Spokeo’s publication of an inaccurate report about him. In arriving at its conclusions, the Ninth Circuit observed that the FCRA “was crafted to protect consumers from the transmission of inaccurate … [Read more...]

The Ninth Circuit finally weighed in again on Article III standing issues after the remand of the Spokeo case from the United States Supreme Court.  The Supreme Court in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), addressed whether a willful violation of the Fair Credit Reporting Act (“FCRA”), absent proof of actual damages, constituted sufficient harm to confer Article III standing to a FCRA plaintiff.  The Court ultimately declined to resolve the question, instead remanding the case back to the Ninth Circuit to consider whether the Spokeo plaintiff’s injuries were sufficiently “concrete” to confer Article III standing.  In so doing, the Court advised that a statutory cause of action does not automatically empower courts to resolve alleged violations of the statute; rather, Article III requires that the statutory violation must cause the plaintiff to suffer harm that “actually exist[s]” and is not … [Read more...]

On August 1, the Delaware Department of Finance (DOF) published a revised version of its proposed reporting and examination manual regulation addressing audit procedures and method of estimation.  See 21 DE Reg 123 (Aug. 1, 2017). The revised proposed regulation is substantially similar to the first draft proposed earlier this year, but contains a dozen or so notable differences (described in more detail below). Because the former draft of the regulation was never finalized, the 60-day time period for eligible holders to convert to the Voluntary Disclosure Agreement (VDA) Program (administered by the Secretary of State) or an expedited audit has not started to run, and will not commence until the final DOF regulation is published in the monthly Register of Regulations. Based on the fact that the DOF is accepted comments through August 31, 2017 (and likely needs at least a month to take them into consideration), the final regulation is not expected to be … [Read more...]

On August 1, 2017, plaintiff Raymond Alvandi filed a putative class action in California federal court against Annie’s, Inc., seeking damages and injunctive and declaratory relief. Alvandi alleges that Annie’s misrepresented the strawberry content and nutritional and health qualities of its “Summer Strawberry” Organic Bunny Fruit Snacks. Alvandi seeks to represent a nationwide class of all consumers of Annie’s Strawberry Fruit Snacks in the last six years, as well as a subclass of those who purchased the fruit snacks in California. He claims that the court has jurisdiction pursuant to the Class Action Fairness Act, alleging that there are at least several thousand putative class members and that the amount in controversy exceeds $5,000,000. Alvandi alleges that over the last six years, Annie’s marketing practices have been deceptive, trying to convince consumers that its Strawberry Fruit Snacks actually contain strawberries and are a … [Read more...]

As previously covered on this blog, on April 6, 2016, FDA published a final rule to implement sanitary food transportation requirements under the FDA Food Safety Modernization Act (FSMA).  Click here for a complete copy of the final rule.  Click here for an FDA fact sheet summarizing the final rule, and click here for our summary of the rule and its implications for entities in the food industry.  In short, the final rule establishes sanitary transportation practices for covered entities addressing: (1) vehicles and transportation equipment; (2) transportation operations; (3) training; (4) records; and (5) waivers. The compliance date for most companies was April 2017.  Small businesses have until April 2018 to comply. On April 5, 2017, FDA announced the publication of three waivers to the final Sanitary Transportation rule. The waivers are for businesses whose transportation operations are subject to existing regulatory … [Read more...]

Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract. Therefore, the terms of the arbitration clause in your commercial contract are critical. Careful review of that clause surely must be a component of your enterprise’s risk analysis. Here are 10 basic considerations that will help to guide that review. 1.  How Will The Arbitration Be Managed? The arbitration clause should set forth the procedural rules that will apply — e.g., by adopting those of an administering institution like the American Arbitration Association, CPR, or JAMS; or by specifying ad hoc rules solely of the parties’ devising — and it should identify the place of arbitration. Also, make sure that any related contracts are in alignment with respect to their dispute resolution clauses. 2.  How Many Arbitrators Do You Want? Specify the … [Read more...]

Listed below are all new filings before the PTAB of petitions for inter partes review (IPR) and covered business methods review (CBM).  Also listed are any newly-posted requests for ex parte reexamination at the USPTO.  This listing is current as of 9:30 AM on Wednesday, August 16, 2017. New IPR Petitions Trial Number – IPR2017-01944 Filing Date – 8/15/2017 Patent # – RE41,908 Title – POWER CONVERSION INTEGRATED CIRCUIT AND METHOD FOR PROGRAMMING Patent Owner –  SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC Petitioner – Power Integrations, Inc. Tech Center – 2800 Trial Number – IPR2017-01946 Filing Date – 8/15/2017 Patent # – 9,187,405 Title – S1P RECEPTOR MODULATORS FOR TREATING RELASPING-REMITTING MULTIPLE SCLEROSIS Patent Owner –  NOVARTIS AG Petitioner – Actavis Elizabeth LLC; Teva Pharmaceuticals USA, Inc. Tech Center – 1600 Trial Number – … [Read more...]

Mirmina v. Genpact LLC, No. 3:16CV00614, 2017 WL 3189027 (D. Conn. July 27, 2017) In this case, Plaintiff sought to compel Defendant to conduct an additional search for ESI.  Plaintiff asserted that he was “concerned” that responsive communications were withheld from production and argued “in essence, that defendant’s search for ESI was insufficient because counsel relied upon an employee directly involved in the underlying claims of the suit to search her own emails for responsive documents.” Defendant opposed the motion and argued that Plaintiff’s concerns were “unfounded because the search for responsive records was coordinated and overseen by counsel.”  In support of that position, Defendant’s in-house counsel provided an affidavit outlining the approach: In-house counsel: (1) issued a timely and detailed litigation hold to potential custodians of ESI, directing the preservation of any records and documents that … [Read more...]

In Personal Audio LLC v. Electronic Frontier Foundation, the Federal Circuit ruled that an IPR petitioner does not need to satisfy Article III standing requirements in order to participate in a patent owner’s appeal from a Patent Trial and Appeal Board decision in an IPR proceeding. This ruling on appellee standing complements the decision in Phigenix v. Immunogen finding that an IPR petitioner did not have standing to appeal. The Consumer Watchdog Decision The Federal Circuit had asked the parties to brief the standing issue in view of the decision in Consumer Watchdog v. Wisconsin Alumni Research Foundation, 753 F.3d 1258 (Fed. Cir. 2014). In that case, the court held that a petitioner in an inter partes reexamination proceeding must meet the Article III case-or-controversy requirement in order to have standing to appeal. As the Federal Circuit noted in this case, “[t]he court in Consumer Watchdog stated … [Read more...]

The United Kingdom’s new Intellectual Property (Unjustified Threats) Act 2017 (the Act) was recently granted royal assent and is set to come into force in October 2017. The Act should make it easier to advise clients, avoid litigation and facilitate the negotiation of settlements by outlining what types of threats are unjustified. The Act will also harmonise the UK law on unjustified threats across patents, trade marks and design rights. Currently, the law allows those accused of infringing intellectual property to sue for damages if threats of legal action against them are revealed to be groundless. This can lead to rights-holders becoming wary of challenging perceived threats to their intellectual property because they do not want to risk their threats being perceived as groundless and, as a result, do not exercise full protection of their intellectual property rights. What constitutes a “threat” will be defined in secondary legislation, but the Act … [Read more...]

We love a good expert riddle, and when we came across this recent Daubertopinion in a fraudulent transfer IOLTA case, we knew this one was for you. Break out your Daubert cap, and see how you do.  Let’s assume you’re handling a rather pricey patent royalties dispute. The parties were a little friendlier when the relationship began and there wasn’t a solid contract in place. The plan was to produce a music device that incorporates the inventor’s voice recognition software for voice-activation. Simply say the name of the artist and song you want to hear and it immediately starts playing. Wouldn’t that be great while running? The bulk of the running community thought so, and demand for SmartPlay skyrocketed. Now the inventor and manufacturer dispute what type of royalty agreement was really in place. Your client, SmartPlay Manufacturing, tells you they agreed to use an income approach and pay a percentage of the price for each unit … [Read more...]

The question of whether, and under what circumstances, a plaintiff can represent a class as to products he or she did not purchase, remains a vexing one for courts.  Judge St. Eve of the Northern District of Illinois recently weighed in on this issue.  In Wagner v. General Nutrition Corp., (No. 16-cv-10961, July 19, 2017), Judge St. Eve concluded that Plaintiff had adequately alleged standing for claims based on products that he had not purchased given that he alleged the products were materially the same. Some courts have held that a plaintiff lacks standing to assert claims as to products that he or she did not purchase.  See, e.g., Allen v. Hylands, Inc., 2012 WL 1656750, at *5 (C.D. Cal.  2012) (plaintiffs lacked standing to assert claims about homeopathic products that plaintiffs have not purchased). Other courts employ a “substantially similar” test, under which standing exists if the products and alleged misrepresentations are substantially … [Read more...]

In VISUAL MEMORY LLC v. NVIDIA CORPORATION, dated August 15, 2017, the Federal Circuit found an improved memory system to be patent eligible under 35 U.S.C. Sec. 101, despite the fact that the improvement resides at least in part in the form of programmable features.  More particularly, the patent in question, U.S. Patent No. 5,953,740, owned by Visual Memory, LLC, provides a memory system with programmable operational characteristics that can be tailored for use with multiple different processors without a reduction in performance. It discloses a main memory 12 and three separate caches: internal cache 16, pre-fetch cache 18, and write buffer cache 20. Id. at col. 3 ll. 34–53. A schematic of the ’740 patent’s memory system is shown in Figure 1.  The three caches possess programmable operational characteristics that are programmable based on the type of processor connected to the memory system. The ’740 patent’s main memory constitutes … [Read more...]

Many jurisdictions provide for the extension of the term of the patents that cover a regulated product. Patent term extension (PTE) is particularly important in the bio/pharma industry given that development of an innovative drug can take more than a decade, biosimilar/generic competition is fierce, and the most profitable period for the patent owner tends to be at the end of the patent term. This article contains a brief discussion of the main considerations for developing a global PTE strategy. Of the world's major economies, Australia, all European Union member states, Japan, Russia, South Korea, Taiwan, Israel, and the US provide PTE.[1] While Canada does not currently have PTE, it is in the process of establishing PTE regulations as part of implementing the Canada-EU Comprehensive Economic and Trade Agreement. Brazil, China, India, Indonesia, Mexico, Saudi Arabia, South Africa, and Turkey do not allow PTE. Most Central and Latin American countries also do not provide PTE. And in … [Read more...]

The European Commission (EC) is considering using designated bodies to certify intermediate and final food contact materials (FCMs) before they can be placed on the EU market as an alternative approach to regulating printed FCMs by way of a traditional positive list system. The designated bodies—consisting of commercial laboratories or other consultants—would be approved by Member States and would be responsible for certifying compliance at “each stage of manufacturing.” They also could carry out the compliance work themselves. Under a designated bodies approach, Member States would verify the work of the designated bodies and have the right to overrule a certificate granted by a designated body. This approach would be supported by sharing information through a database that would be accessible to competent authorities and the European Food Safety Authority (EFSA). Designated bodies would have access to relevant dossiers, while FCM and food business operators … [Read more...]

Time spent on securing marketing approval for regulated products, such as pharmaceuticals, medical devices and agrochemicals effectively shortens the term of patent protection during which an innovator can recover its investment without fear of generic competition.  Even a few months of additional patent term can mean the difference between millions of dollars or several billion dollars. This short article will highlight the provisions put in place for patent owners to be compensated for up to 5 years of patent term lost while developing a product and obtaining FDA approval. Eligible FDA-approved products Products eligible for patent term extension (PTE) include human drugs[i], human biological products such as viruses, therapeutic sera, toxins, antitoxins, vaccines, blood/blood components or derivatives, allergenic products, or analogous products[ii], animal drugs and veterinary biologics, medical devices, and food or color additives subject to regulation under the Federal Food, … [Read more...]

The Food and Drug Administration (FDA) Center for Veterinary Medicine (CVM) announced the approval of a variety of bioengineered safflower as a source of omega-6 fatty acids in dry adult dog food. The final rule amends Title 21 Code of Federal Regulations (C.F.R.) Part 573 (“Food Additives Permitted in Food and Drinking Water of Animals”) by adding 21 C.F.R. 573.492 to permit the use of the food additive gamma-linolenic acid (GLA) safflower oil containing an omega-6 fatty acid in animal food. FDA took this action in response to a food additive petition submitted by Arcadia Biosciences, Inc. (Arcadia); the Agency announced the filing of Arcadia’s food additive petition on September 12, 2012 (77 FR 56175). In the petition, Arcadia requested that the food additive regulations be amended to permit the use of GLA safflower oil—which was bioengineered to contain a gene from the water mold Saprolegnia diclina responsible for production of GLA in the seed … [Read more...]

On July 28, Circuit Judge Daniel Kubasiak dismissed the Complaint filed by the Illinois Retail Merchants Association and a group of retailers challenging the constitutionality of the Cook County, Illinois Sweetened Beverage Tax (Tax).  The Order also dissolved the June 30 temporary restraining order which had halted the county’s imposition of the Tax, on which we have previously reported. In response to the Order, the county required Tax collection to begin on August 2. The county also announced that by September 20, retailers must remit a “floor tax” on the inventory of sweetened beverages in their possession as of August 1. The Order rejected both of the constitutional arguments raised by the Complaint. The court held that Plaintiffs raised a good faith Illinois Uniformity Clause challenge, and thereby shifted the burden of proof to the county, because the Tax applied to pre-made, but not made-to-order sweetened beverages. The court went on to hold, … [Read more...]

In Honeywell International, Inc. v. Mexichem Amanco Holdings S.A. DE C.V., the Federal Circuit vacated the decision of the USPTO Patent Trial and Appeal Board that invalidated Honeywell’s patent in an inter partes reexamination proceeding. The court’s decision could be important to applicants and patent owners facing obviousness rejections based on inherency and routine testing. The Honeywell Patent At Issue The patent at issue was Honeywell’s U.S. Patent 7,534,366, of which the court cited claim 1 as illustrative: A heat transfer composition for use in an air conditioning system comprising: (a) at least about 50% by weight of 1,1,1,2- tetrafluoropropene (HFO-1234yf) having no substantial acute toxicity; and (b) at least one poly alkylene glycol lubricant in the form of a homopolymer or co-polymer consisting of 2 or more oxypropylene groups and having a viscosity of from about 10 to about 200 centistokes at about 37 °C. The claims were … [Read more...]