Coronavirus and Contractual Penalties

We recently considered the issue that the Coronavirus outbreak may result in an upsurge of force majeure related claims under commercial contracts.

A further risk now coming to light is customers seeking to enforce contractual fines, penalties, “service credits” or “liquidated damages” (collectively referred to for ease of reference as “Penalties” although all slightly different things from a strict legal perspective) in connection with supplier failure or delays arising from Coronavirus related issues. Continue Reading

February Issue of Bio Pharma Beat Now Available

DNAOur monthly newsletter reports on the patent law developments in biotech, biologics and pharmaceutical cases, legislation and federal agency actions. This month’s issue covers relevant news from January 2020, including:

  • The Federal Circuit holds that post-priority evidence can be used to show inherency in the obviousness context
  • The Federal Circuit explains that enablement of an allegedly anticipatory reference does not necessarily equate to anticipation and the two concepts should not be confused
  • A district court holds, in a drug/prodrug case, that the enforceable rights derived from a patent term extension are limited to the approved uses of the approved active ingredient

It’s Printed, But Is It Published? The PTAB Expands Its Discussion of Prior Art Status

Following the Patent Trial and Appeal Board’s (PTAB) Precedential Opinion Panel’s selection of Hulu, LLC v. Sound View Innovations, LLC[1] as precedential, on January 23, 2020, the PTAB issued a non-precedential decision in Cisco Systems, Inc. v. Centripetal Networks, Inc.[2]  In Cisco, the PTAB provided yet more discussion of criteria for determining whether a printed document – in this case, a user manual – may qualify as prior art against patent claims under attack in a PTAB post-issuance proceeding. Continue Reading

Coronavirus and Force Majeure

Businessman examining papers at tableUsually found towards the end of a commercial contract, a force majeure provision seeks to exclude the liability of one or more parties for events beyond their reasonable control.

Often (and mistakenly) overlooked as “standard boilerplate”, the increasingly apparent and potentially extensive impact of the Coronavirus outbreak on global supply chains is likely to bring such provisions into sharp focus over the coming weeks and months.

So a timely reminder seems in order of the top ten issues to be aware of for anyone seeking to rely on force majeure protection or who is at the receiving end of a force majeure defence. Continue Reading

Intel’s New Diversity Standards for Outside Counsel

In a November 2019 blog post, Intel’s Executive Vice President and General Counsel Steven R. Rodgers announced Intel’s new diversity requirements.[1]  “Beginning Jan. 1, 2021, Intel will not retain or use outside law firms in the U.S. that are average or below average on diversity.”

Intel’s new “above-average” rule requires that firms doing work for Intel show (1) at least 21% of the firm’s U.S. equity partners are women, and (2) at least 10% of the firm’s U.S. equity partners are underrepresented minorities, defined by Intel as equity partners whose race is other than full white/Caucasian, and partners who have self-identified as LBGTQ+, disabled or as veterans. Continue Reading

Direct Appeals to the Federal Circuit: The Exclusive Avenue for Challenging the Final Written Decision of an Inter Partes Review

Law ColumnsIn a recent ruling in Personal Audio, LLC v. CBS Corp., the Federal Circuit affirmed the District Court’s final judgment, which reversed a prior $1.3 Million jury verdict in Plaintiff’s favor. It found Personal Audio’s constitutional arguments raised in its appeal to the Federal Circuit were barred by its prior appeal of the US Patent and Trial Appeal Board’s (“the Board”) final written decision finding the asserted claims invalid. Continue Reading

You Don’t Say! Federal Trade Commission to hold Public Workshop on Voice Cloning Technologies

On January 28, 2020, the US Federal Trade Commission will hold a public workshop on voice cloning technologies. As the federal agency charged with protecting consumers from fraudulent and deceptive marketing practices, the FTC workshop will review the potential misuse of voice cloning technologies as well as its benefits.  The workshop will include three panel discussions focused on the pros and cons of voice cloning, the ethics of voice cloning, and authentication, detection, and mitigation issues.

From a consumer protection perspective, the FTC is keen on ensuring that voice-cloning technology does not hand scammers an easy way to perpetrate scams. For instance, giving fake voice commands to access smartphones, mimicking the voices of relatives in distress (“I’m in the hospital, Grandpa; you need to wire me money now”), or by giving phony instructions (“This is Deborah. Transfer my savings account to ____”).  Advertising and marketing abuse will also be examined. For example, voice-cloned celebrity voices could be used in fake endorsements.  From a pro-competition perspective, the FTC is interested in ways to promote technological developments and fair competition. Continue Reading

Vaping Products Banned from Promotion on Instagram

The ASA has banned four e-cigarette producers, including British American Tobacco (BAT), from promoting their vaping products on Instagram.

The e-cigarette producers advertised their vaping products on their own Instagram accounts. The posts featured various celebrities holding and endorsing the products.

Continue Reading

January Issue of Bio Pharma Beat Now Available

Our monthly newsletter reports on the patent law developments in biotech, biologics and pharmaceutical cases, legislation and federal agency actions. This month’s issue covers relevant news from December 2019, including:

  • The Solicitor General, on behalf of the US, asserts that the Supreme Court’s Section 101 precedent
    creates “substantial uncertainty” requiring clarification
  • The Federal Circuit holds that there is no single entity equirement for infringement under section 271(g)
  • A district court holds that, under certain circumstances, an anticipatory reference is not necessarily “but-for” material under an inequitable conduct analysis

Bentley Forced to Hit the Brakes

In what are challenging economic times, concentric diversification is increasingly being considered by businesses as a way of gaining an advantage over competitors. In the automotive sector in particular, manufacturers are expanding their offerings, particularly in the after-sales market, to supplement sales of traditional products.

The recent High Court decision in Bentley 1962 Ltd v Bentley Motors[1] acts as a warning to manufacturers that, when diversifying, putting brand strategy front and centre of any expansion plan is a must. Continue Reading