In Thryv, Inc. v. Click-to-Call Technologies, the Supreme Court held that the Patent Office’s decision on the timeliness of a petition to challenge a patent is not appealable. This opinion is one of several recent decisions by the Supreme Court on the interpretation of the America Invents Act, and demonstrates a clear difference in opinion on the proper role of the judiciary in reviewing Patent Office decisions.

The America Invents Act created a new mechanism for challenging patents in the Patent Office called inter partes review (IPR). A person challenging a patent using the IPR procedure is required to file a petition with the Patent Office within one year of the service of a complaint for patent infringement upon that person. The Patent Office then decides whether to accept the petition, including whether the petition was timely filed. The Supreme Court’s decision in Thryv held that a party could not appeal the Patent Office’s decision on whether the IPR petition was filed after the one-year time limit.
Patent owner Click-to-Call Technologies (CTC) filed a patent infringement suit against Thryv related to technology for anonymous telephone calls. Thryv challenged the validity of the patent in the Patent Office by filing a petition for IPR. Despite a prior litigation between the parties in 2001, the Patent Office decided to institute the IPR over a decade later and found that thirteen of the patent’s claims were invalid. In doing so, the Patent Office concluded that the one-year limitation on filing a petition was not triggered because the complaint in the prior 2001 litigation was dismissed without prejudice.

CTC appealed the Patent Office’s decision to the Court of Appeals for the Federal Circuit, which held that judicial review of the Patent Office’s holding was not available because Section 314 of the America Invents Act states that the decision to institute is “final and nonappealable.” However, in subsequent cases, the Federal Circuit held that the one-year limitation of Section 315(b) was appealable irrespective of Section 314’s restriction on appeals. Inconsistencies between these decisions, and conflicting interpretations of the America Invents Act, prompted Supreme Court review.

The Supreme Court held that Section 314 of the America Invents Act prevents an appeal of the Patent Office’s decision on whether a petition was timely filed. In the majority opinion, Justice Ginsburg explained that earlier Supreme Court precedent in Cuozzo Speed Technologies, LLC v. Lee held that questions regarding the Patent Office’s decision to institute an IPR is “final and nonappealable,” including decisions that “are closely tied to the application and interpretation of statutes related to the Patent Office’s decision to initiate inter parties review.” Finding that the America Invent Act’s time limitation in Section 315(b) is “integral to, indeed a condition on, institution,” the majority held that the Patent Office’s decision on whether a petition was timely filed is not appealable.

The Supreme Court examined Congress’ statutory intent in providing for IPRs, and noted that deference to institution decisions, including limiting appeals, promotes the Patent Office’s focus on substantive review of questionable patents, rather than procedural questions. Because the Patent Office’s decision is unappealable, the Supreme Court did not address whether the Patent Office correctly decided to institute an IPR in this case, leaving unresolved whether a complaint dismissed without prejudice triggers the one-year limitation for filing an IPR petition.

In a fiery dissent, Justice Gorsuch offered a different interpretation of the America Invents Act and prior precedent, concluding that they do not prevent appeals of a Patent Office decision on whether a petition for IPR is timely. According to Justice Gorsuch, the plain text of Section 314 does not limit judicial review of the Patent Office’s decision on the timeliness of petitions. The Supreme Court, in his view, should allow patent owners to have their day in court, and should not leave “the disposition of private rights and liberties to bureaucratic mercy.”

Craig Smith is a partner at intellectual property law firm, Lando & Anastasi, LLP located in Boston, MA. He can be reached at csmith@lalaw.com or 617-395-7000. Peter Evangelatos is an associate at Lando & Anastasi, LLP. He can be reached at pevangelatos@lalaw.com or 617-395-7000.

Having a clear vision and plan for technology has never been more important. Join us to hear Curtis Batterton from McDonald’s Corporation discuss how his legal department went through the process of creating a legal technology roadmap to enable its strategic vision. He will also discuss how they are executing against this roadmap and how they are adapting their plan to the current economic and health crisis.

You’ll also see:

– The process McDonald’s used to define their technology roadmap
– Whether the COVID-19 crisis is causing any changes or additional hurdle
– How McDonald’s uses Onit and how it is helping during this time of remote work
and increased need for visibility and cost savings

Register Now.

Can’t make it? Fill out the form on the register page and you’ll receive a recording.

Sidley Austin LLP is pleased to announce that Joshua Thompson has joined the firm in New York as a partner in its Global Finance group. Thompson was previously a partner at Shearman & Sterling LLP, where he was head of the firm’s Global Leveraged Finance Group and head of Private Capital.

Thompson has advised many of the world’s most prestigious financial institutions and borrowers on complex financing matters. He focuses his practice on acquisition financings and other leveraged lending, which includes leveraged buyouts, tender offers and other going private transactions. As a trusted counsel to lead arrangers, direct lenders and private equity sponsors, Thompson is highly involved in all aspects of structuring, negotiating and documenting these transactions. The breadth of his experience also extends to structured financings, asset-backed lending, second lien financings, mezzanine investment, restructuring, Chapter 11 plans and the acquisition of troubled companies.

As more states consider data privacy regulations, much of the legislation in question share a few common features. Among them are, in no specific order, are:

• New consumer rights over business use of personal data
• Fines or fees for breaches of personal data
• Requirements that only personal data with a business use be held

While it’s reasonable to suspect that the more specific aspects of each piece of legislation may vary widely, those features seem to make up the foundation of a number of bills sitting in U.S. state congresses (some states are still determining whether to include individual rights of action, for example). Many organizations are attempting to answer a number of questions pertaining to what data they store, why they store it, how they’ll respond to consumer requests for that data, and who can access it—inside or outside the organization.

For many businesses, those features require new enterprise infrastructure and changes to processes in order to comply. In this guide, we’ve outlined four major principles that will help companies master their data privacy processes and maintain compliance with the law:

• Mastering Your Data
• Mastering Data Subject Access Requests (DSARs)
• Mastering Third-Party Vendor Management
• Mastering Data Retention and Harmonization Practices

Download the resource.

Palo Alto – Sidley Austin LLP is pleased to announce that Rachel Kleinberg will join the firm in Palo Alto as a partner in its global Tax group. She is joining from Davis Polk & Wardwell LLP.

Kleinberg is a nationally recognized thought leader in tax, whose practice spans a wide array of transactional matters. She advises corporate, private equity and financial institution clients on mergers and acquisitions, joint ventures, spinoffs and reorganizations, cross-border restructurings, capital markets transactions, credit facilities, international tax matters and derivatives transactions.

Kleinberg serves as chair of the Foreign Activities U.S. Taxpayers Committee of the American Bar Association’s Section of Taxation and is a Fellow of the American College of Tax Counsel. She is a sought-after speaker on international and corporate tax topics.

Scott & Scott, LLP is pleased to announce that Stephen F. Pinson has received the IAPP’s Privacy Law Specialist designation. With this elite designation, Mr. Pinson verifies he has met the rigorous experience and knowledge requirements and distinguishes himself as a leader in the Privacy Law industry.

Please join us on Wednesday, April 22nd at 12:00 PM Eastern Time (45 Minutes)

We’d like to invite you to our next webinar: Managing Contracts Remotely with CLM Software.

In this session, we’ll discuss and demonstrate some of the advantages of using contract management software to overcome the challenges of managing contracts when everyone is working from home.

Some key topics that we’ll cover include how to:

– Make your contracts securely accessible from anywhere at any time.
– Quickly search for any and all information in your agreements.
– Request, create, process, and execute contracts remotely.
– Automate alerts for key dates and obligations.
– Get real-time reports on your contracts’ stage, status, and performance.

Join the webinar.

Akerman LLP, a top 100 U.S. law firm serving clients across the Americas, is pleased to announce the continued expansion of its Chicago office with the strategic additions of Joel Sestito and Kevin Shortsle. Sestito is part of the Real Estate Finance Practice within the Real Estate Practice Group, bringing robust experience representing lenders, entities, and individuals in sophisticated real estate and commercial loan transactions. Shortsle joins the firm’s Intellectual Property Practice Group with strong credentials advising high-profile pharmaceutical brands in the intellectual property (IP) aspects of drug treatments for serious health conditions, including prostate cancer, depression, and heartburn.

Akerman’s Chicago office, founded in 2014, has grown to more than 50 lawyers. The expansion led Akerman to more than double the size of its Chicago office space while strengthening the firm’s deep bench in commercial litigation, IP, financial services, real estate, and other client-driven sectors.

Akerman’s Real Estate Finance Practice and Intellectual Property Practice Group have each experienced significant national growth. In the last year, the real estate finance team expanded with notable hires in New York, Jacksonville, and Atlanta, including Alan Cohen, who currently serves as the firm’s Real Estate Finance Practice Chair. Akerman’s Intellectual Property Practice Group has led a similar, strategic growth. Four partners have joined in Tampa, Chicago, and Austin, expanding the firm’s IP skillset in highly technical disciplines, such as advanced software, artificial intelligence, mechanical devices, automotive products, and computer equipment.

Joel Sestito: Partner, Real Estate
Sestito focuses his practice on the representation of financial institutions in connection with real estate and commercial loan transactions. He represents lenders during all stages of the loan process, including the negotiation and documentation of new loan transactions, the workout and disposition of troubled loan assets, and the exercise of various creditor’s remedies. Sestito represents clients with respect to secured and unsecured, single lender and syndicated loans, revolving lines of credit, mezzanine loans, A/B loans, loan on loan financings, and securitized loans. In addition, Sestito has extensive experience with loan transactions that involve EB-5 financings, new markets tax credits, historic tax credits, low income housing tax credits, and ground lease financings.

Kevin Shortsle: Partner, Intellectual Property
Shortsle focuses his litigation practice on pharmaceutical, chemical, and medical device technologies, with additional focus on broader IP litigation, patent prosecution, and counseling. He helps clients navigate all aspects of patent litigation, from pre-filing investigations through trial and appeal. His recent representations have involved treatments for prostate cancer, Eligard®; heartburn, Pepcid Complete®; benign prostatic hyperplasia, Rapaflo® (silodosin); depression, Pristiq® (desvenlafaxine); acne, Differin® (adapalene); actinic keratosis, Solaraze® (diclofenac); and knee, hip, and spine surgical implants and instrumentation.

“Dennis Wiessner, a legal veteran in defense, aerospace and government contracting industries for more than two decades, has been named general counsel at Spaceflight,” posts Matthew Nelsono in Executive Biz’ Executive Moves.

“Wiessner will direct Spaceflight’s legal efforts as part of his new capacity, the company said April 6.”

“Prior to his appointment, Wiessner worked as vice president and general counsel at Sea Launch Company, a former Boeing joint venture, as well as secretary to the board of directors and chief compliance and ethics officer. He also held similar roles at Leonardo and at Thales’ avionics business in California.”

Read the article.

“…numerous COVID-19 related class actions have been filed throughout the country in various different spaces—consumer, mass tort, securities, labor & employment, and banking and privacy. These newly filed complaints (and some corresponding opinions) provide us valuable insight into how class action plaintiffs will proceed with outbreak-related claims, and allows us the opportunity to further analyze the viability of putative class action complaints. This post will address the first COVID-19 certification decision and include an analysis of the two most active areas of COVID-19 class actions: mass torts and consumer protection,” write Bethany Gayle Lukitsch, Kamran B. Ahmadian and Drew Gann in McGuireWoods’ In The News.

“While the majority of these cases will take weeks or months (particularly given the court shutdowns that have occurred throughout the country) to progress to the class certification stage, surprisingly we have already seen the first COVID-19 class certified. ”

Read the article.

“In the wake of the market disruption caused by the COVID-19 outbreak, a number of employers have announced temporary salary reductions as a means of conserving cash, and thus demonstrating sound stewardship. This memorandum discusses key considerations for companies and boards that are contemplating a salary reduction program for members of executive management,” discuss John J. Cannon III, Doreen E. Lilienfeld, Gillian Emmett Moldowan, Matthew Behrens and Max Bradley in Shearman & Sterling’s Perspectives.

“Companies considering implementing a base salary reduction for executives should begin with a careful review of their existing contractual requirements to determine whether the reduction could trigger the right of an executive to terminate employment for ‘good reason.’ ‘Good reason’ (or constructive termination) rights may arise under employment agreements or in severance plans. ‘Good reason’ triggers may also engender consequences under equity or incentive compensation arrangements and deferred compensation plans.”

“Each arrangement that includes a ‘good reason’ construct should be analyzed to determine whether the contemplated reduction in base salary could trigger an argument of constructive termination. The company ought to consider whether the salary reduction is significant enough to cause a trigger if the ‘good reason’ definition is qualified by materiality and if ‘good reason’ is triggered when the salary reduction is part of an across-the-board program that reduces salaries for the entire company or similarly situated employees. If it is determined that the salary reduction could trigger ‘good reason,’ employers should seek consent and waivers from the executives before proceeding.”

Read the article.

“West Palm Beach attorneys William D. Zoeller and Michael V. Baxter of Schuler Halvorson Weisser Zoeller Overbeck obtained a $4 million jury verdict for the family of a 72-year-old man who died after his doctor tried to insert a catheter 14 times—for a procedure the plaintiffs alleged could have waited,” reports Raychel Lean in News.law’s Civil Plaintiff.

“But not all the facts were on their side. Gerald Sanford had a history of mitral valve regurgitation, a heart problem that can cause a back flow of blood. He also had an 80% to 90% blockage in one of his arteries, which the defense said warranted surgery to unclog.”

“Zoeller and Baxter argued that wasn’t as bad as it sounds because Sanford wasn’t experiencing symptoms, such as chest pain or shortness of breath. They claimed the risks of opening that artery outweighed the benefits.”

Read the article.

The International Association of Defense Counsel (IADC) has announced that Matthew Noce, a partner at HeplerBroom LLC in St. Louis, has accepted an invitation to join the IADC, the preeminent invitation-only global legal organization for attorneys who represent corporate and insurance interests.

“I am proud and humbled to be accepted as a member of such a prestigious group of international attorneys,” Mr. Noce said.

Mr. Noce’s practice involves general litigation with an emphasis on commercial trucking, premises liability and employment law matters. He also has a particular focus on defending private and public schools and public utilities in litigation matters.

Mr. Noce currently serves on the board of the Missouri Organization of Defense Lawyers (MODL). For MODL, he has served for the last three years as chair or co-chair of the committee that organizes the group’s annual meeting that hosts more than 150 lawyers and their families each year. He also is a member of the St. Louis County Bar’s Executive Committee.

Mr. Noce received his J.D. from St. Louis University Law School and his Bachelor of Arts from the University of Missouri.

Legal technology company CLE Companion (www.clecompanion.com) has announced a partnership with Lawyers of Distinction, adding that the partnership “will providing its customers with convenient, on-demand Continuing Legal Education programming at a fraction of the cost they would pay traditional CLE purveyors.

“We’re excited to be able to officially announce this partnership,” said Kristin Davidson, the founder and CEO of CLE Companion. “Legal businesses, like Lawyers of Distinction, are increasingly recognizing the value of delivering CLE to their attorneys, saving them hundreds of dollars a year in what they would be spending on traditional CLE providers and attending conferences.”

In the past several months, CLE Companion has finalized close to 10 partnerships, and the demand for its unique partnership model is rising. “This will be the standard moving forward and were excited to be the leader,” she said.

The value to attorneys is compelling.

“Online CLE courses are a convenient tool for any attorney and one of the easiest ways to save time, reduce costs, and enhance industry knowledge,” said Davidson.
CLE Companion has enhanced these features to another level with features like integrated partner API and a Credit Tracker. “It’s a complete package,” added Davidson.
Lawyers of Distinction is a select membership community featuring lawyers nationwide with exceptional skill sets. Adding a CLE component to their membership is a ground-breaking effort by the Lawyers of Distinction corporate team, virtually doubling their membership values overnight.

“Lawyers of Distinction is always looking for new ways to stay in front of the fast-moving changes in legal technology. Adding a membership to CLE Companion is a great way to enhance our value and commitment to our members,” said founder and CEO Robert Baker.

“We are confident this investment in attorney education will pay off,” added Baker.

Clickthrough agreement litigation continues to rise, increasing 50% over the last 5 years, and 15% just between 2018 and 2019 alone. As the court gets more sophisticated, its assessments of online agreements and the types of evidence used to enforce them become more sophisticated and stringent.

The 2020 report includes updated statistics and analysis of the main types of evidence used to enforce online agreements in court, and the critical success factors that lead to their enforceability.
Key Takeaways Include:

• Success factors for the three types of online agreements
• What makes a piece of evidence successful vs unsuccessful
• Trends in the court’s assessment of agreements
• Best practices for online agreements

Download the report.

Restaurateurs and landlords now realize an inescapable truth: most existing leases are not suitable for a COVID-19 world. Restaurateurs have no incentive to return to business absent significant lease modifications coupled with government support.

To survive, restaurateurs and landlords must work together. Fighting makes no sense. Negotiating leases piecemeal is costly and inefficient.

Ideally, restaurateurs and landlords can agree on model terms to get through the recovery period efficiently and successfully.

Join this dynamic session for perspective on terms from both restaurateurs and landlords.

Lowenstein Sandler announced today the release of its 2019 Pro Bono Report, which details the firm’s pro bono and community service efforts last year through the Lowenstein Center for the Public Interest. In 2019, Lowenstein dedicated more than 23,000 hours of pro bono work, much of which focused on immigration, civil and human rights, and criminal justice. Over the last 23 years, the firm has dedicated 441,531 hours to pro bono matters.

“Integral to our firm’s core values is our commitment to pro bono work,” said Gary M. Wingens, Chairman and Managing Partner of the firm. “In 2019, it was gratifying to see years of collaborative effort with our nonprofit partners produce positive results, such as the passage of New Jersey’s new juvenile justice reform bill, which will be a national model, and the affirmation of protections such as Special Immigrant Juvenile Status for young immigrants. In this period of major challenge and disruption, the firm continues to focus its energy and talent on addressing the problems that hit vulnerable communities hardest.”

Catherine Weiss, partner and Chair of the center, adds, “This report highlights the resilience and perseverance of pro bono clients who have faced, and overcome, challenges that would flatten most of us. Celebrating with them reminds us that with determination, humor, and compassion, we can tip the scales toward justice. Thanks to our network of volunteers, legal service organizations, and corporate partners, we will continue to fight alongside those who are seeking safety, peace, freedom, and fairness.”

Highlights of the firm’s 2019 pro bono work include:

• Overturning a policy that illegally disqualified a class of young immigrants from a key form of relief specifically intended for abused and neglected children called Special Immigrant Juvenile Status (SIJS);
• Preventing the government from deporting young people who had already been granted SIJS but who were stuck in long lines, waiting for the chance to apply for their green cards;
• Helping to draft a New Jersey bill–now a law–that provides a national model for juvenile justice reform by reducing incarceration while promoting incentives for positive youth behavior and successful reintegration into society through such measures as the removal of onerous financial penalties, which often inhibit successful reentry;
• Joining a federal challenge to the government’s restrictions on military service by transgender people;
• Arguing for systemwide reforms to ensure that, when transgender people are incarcerated, they are held in units appropriate for their gender identity and most likely to protect their safety; and
• Assisting more than 100 nonprofits to form, grow, achieve, and expand their missions of providing high-quality services to individuals in need.

Access the 2019 Pro Bono Report.

With the new challenge of the COVID-19 crisis, the firm continues to work with our nonprofit partners to advocate for those who will be hardest hit. For more information, please visit this new feature of the Lowenstein Center for the Public Interest website. You can also find timely Lowenstein articles and other materials related to the pandemic on the firm’s COVID-19 resource page.

About the Lowenstein Center for the Public Interest

From its founding, Lowenstein Sandler has been committed to advancing the public interest and serving communities in need. The Lowenstein Center for the Public Interest embodies this commitment, directing the firm’s strong pro bono program and other forms of civic and philanthropic engagement. Through these efforts, the center addresses significant social problems and offers meaningful assistance to low-income and other marginalized people, along with the organizations that advocate for and support them. This work engages the full range of the firm’s talents and reflects the core values that imbue all of the firm’s efforts: to perform work of the highest quality in a manner that maximizes results for our clients and causes.

View Press Release.

“Brentwood, Tennessee-based Delek US Holdings and Delek Logistics Partners have appointed Abby Yates to the role of executive vice president, general counsel and corporate secretary, effective April 9,” reports Ben Maiden in Corporate Secretary’s Appointments.

“Yates previously spent six years as general counsel, chief compliance counsel and senior vice president for HR at EthosEnergy, a joint venture between Siemens and Wood Group. Before that, she spent 10 years working at Wood Group, initially as senior litigation counsel and then as divisional counsel to the gas turbine services division. She began her career at law firm Morgan Lewis in Philadelphia and has also worked for Bracewell and Schlumberger in Houston.”

“Yates succeeds Regina Jones, who has elected to leave the company to pursue other opportunities, according to Delek US. Jones will remain with the company to ensure a smooth transition to Yates, the companies say in a statement. Jones joined Delek US in May 2018, having previously spent 12 years at Schlumberger, according to her LinkedIn profile.”

Read the article.

Rusty Hardin & Associates suit: Cruise line knew of danger, failed to warn and delayed medical care

LOS ANGELES – A Texas woman is suing Princess Cruise Lines for knowingly exposing her and her husband to the new coronavirus and for preventing her husband from leaving the ship while his health deteriorated, leading him to ultimately die alone days later in a California hospital.

On Feb. 21, Susan Dorety and her husband Michael, a retired firefighter, of Crowley, Texas, boarded the Grand Princess cruise ship in San Francisco to celebrate their 40^th anniversary. Little did they know that some passengers who had COVID-19 symptoms had just disembarked while more than 60 others were allowed to remain on-board after they had been exposed to the virus.

Four days after the Doretys boarded, Princess Cruise Lines emailed the previous passengers who were no longer on the ship, alerting them that they had been exposed to the dangerous virus. But there was no warning to the new passengers including the Doretys.

“It is shocking to me that a cruise line that had just discharged coronavirus-infected passengers took on board a new group of passengers to then mingle with others who had been exposed. Princess had notice of the dangers, the Doretys did not,” said Rusty Hardin of Rusty Hardin & Associates of Houston, who represents Mrs. Dorety.

In addition, when a crew member with COVID-19 symptoms left the Grand Princess in Hawaii, there still was no alert to passengers. Mrs. Dorety says she and her husband would have disembarked there had they known about the risks to their health.

“The behavior of Princess Cruise Lines is all the more outrageous because just a few weeks earlier, one of their ships had a coronavirus outbreak infecting 700 people while docked in Japan,” said Mr. Hardin. “This cruise line company put money ahead of its passengers’ well-being, and it cost Michael Dorety his life.”

After two weeks on the cruise, passengers were placed in quarantine off the California coast, and Mr. Dorety fell ill. Mrs. Dorety called the ship’s emergency line multiple times, but no one responded. Her husband became weak and was shivering and feverish as his health deteriorated. A ship’s doctor came at last, giving him Tylenol and Tamiflu, but the couple was not advised until later that they could leave the ship for medical treatment.

Mr. Dorety died in an Oakland hospital days later with no family by his side. Mrs. Dorety, meanwhile, also contracted Covid-19.

The lawsuit, filed April 14, seeks damages for negligence, gross negligence and for other unlawful acts. Other members of the Rusty Hardin & Associates team are Ryan Higgins, Daniel Dutko and Leah Graham. Serving as local counsel in California are Gerald Singleton and J. Ross Peabody of the Singleton Law Firm of San Diego. The lawsuit is Susan Dorety individually and on behalf of the estate of Michael Dorety vs. Princess Cruise Lines, Ltd., Case No. 2:20-cv-02458, in the Central District of U.S. District Court of California.

Rusty Hardin & Associates, LLP has built an outstanding reputation for taking on the causes of its clients and obtaining favorable results in both civil matters and significant criminal cases. Visit https://www.rustyhardin.com.

Note: Photos of Michael Dorety and court documents are available by request.

Media Contact:

April Arias

Androvett Legal Media

april@androvett.com

800-559-4534

“On April 9th, 2020 the New York Supreme Court, Appellate Division, First Department, affirmed the trial court’s decision in Nemeth v. Brenntag North America, et al., Case No. 9765, New York County Index No. 190138/14, denying the defendant’s post-trial motions,” reports Levy Konigsberg LLP in Benziga’s PRNewsWire.

“The plaintiffs, Florence and Frank Nemeth of Lake Ronkonkoma, New York, sued several manufacturers and distributors of asbestos-containing products, including a distributor of talcum powder named Whittaker Clark & Daniels, Inc. (“WCD”), after Florence was diagnosed with mesothelioma following years of using talcum powder in a product called Desert Flower, the talc for which WCD had sourced from asbestos-containing mines.”

“Florence succumbed to the disease before trial, and was survived by her husband Frank and their two children and four grandchildren.”

Read the article.