Pittsburgh Law Firm @HoustonHarbaugh Announces Formation of #CovidLaw Response Group

www.CovidLawResponse.com

The COVID-19 pandemic has presented an array of legal issues that many of our clients and peers are suddenly faced with addressing at a rapid pace. At Houston Harbaugh, we have assembled a designated CovidLaw Response Group to assist our clients and relay updates and information as they continue to unfurl (See our COVID-19 Law newsletters and blogs at: www.CovidLawResponse.com). Members of the group can be found below:


Our lawyers in this group are closely monitoring and assisting clients with all COVID-19 related issues in the following areas:

  • Business Litigation
  • Business Loan Programs- EIDL and SBA Loan Programs
  • CARES Act
  • Corporate Law
  • Employment Law including Return to Work Policies and Templates and PA State Orders for Workplace Safety and Health
  • Environmental Law
  • Families First Coronavirus Response Act- Paid Sick Leave and Amendments to FMLA
  • HHS Grants for Medical Practices- EIDL and PPP Program
  • Insurance Coverage including Business Interruption and Civil Authority
  • Intellectual Property
  • Paycheck Protection Program- Forgiveness and Certifications
  • Probate Estates & Trusts Litigation
  • Real Estate Leasing and Financing
  • Retirement Plan Contributions, Distributions and Loans
  • Stay at Home Orders
  • Unfair Competition and Counterfeiting


We are here to help navigate these new and challenging matters and are equipped with the technology to safely and thoroughly consult with our clients. Please reach out with any questions. 

www.CovidLawResponse.com

Tags: CovidLaw, COVID-19, Covid Law Response, CoronavirusLaw Response GroupPittsburgh law firm

Related Posts: COVID-19 Responses Allow Cafeteria Plan FlexibilityPennsylvania Supreme Court Denies Request To Exercise “King’s Bench” Jurisdiction Over All State Court COVID-19 Coverage CasesCoronavirus Workplace Infection Control PolicyInsurers and Amici Resist Application for Pennsylvania Supreme Court’s Exercise of King’s Bench Jurisdiction Over COVID-19 Coverage Cases

Redefining Your Business Strategy for Post #Covid – 19: A Free @Simio Webinar Tomorrow May 7, 11:00 AM – #DataSimulation*

How do you plan for today and the future in a time of uncertainties? Do you simply wait out the pandemic, or apply analytics to develop workable strategies that keep your business functional?  

This FREE and short Simio webinar TOMORROW on May 7th, 2020 at 11:00 am ET (3:00 pm UTC) will share insights that will allow you to see how you can apply simulation to evaluate different response scenarios for your business.  
  Tomorrow’s webinar will give a glimpse into data simulation and how it can be used to predict outcomes based on your available options. It will also showcase the importance of data simulation modeling in providing insight for capacity planning and predictive analytics during a pandemic and a post-pandemic scenario. Stakeholders, managers, and decision-makers will learn valuable lessons on advanced planning and resource management using Simio as an analytical tool. This webinar will also help employees across every industry understand why certain decisions are been taken and the importance of resource management.  Regardless of your industry, you will learn how to apply simulation to enhance daily operations and manage complex processes.  
Presenters: 1) Dan O’Neil, Health Systems Innovation Lead at Johns Hopkins University Applied Physics Laboratory 2) Adam Sneath, Application Engineer at Simio.
Click Here to Register Today: or use this link to Simio, LLC in Pittsburgh: https://www.simio.com/resources/webinar/2020-05-07-Simio-Webinar.php

* This announcement is not providing legal advice or is it in any way an endorsement of SIMIO by any lawyer or law firm, but merely a suggestion of a possible resource for businesses and individuals as businesses and health care facilities re-open. Houston Harbaugh and Henry Sneath are not involved in the content development, nor presentation of this program.

Supreme Court Bars Time-Bar Appeals In PTAB Cases

ByCarissa T. Howard of Counsel at Houston Harbaugh

The U.S. Supreme Court ruled today that U.S. Patent and Trademark Office (“USPTO”) decisions on the timeliness of administrative patent validity challenges are not appealable to Article III courts.

Inter partes review proceedings give an accused infringer the right to challenge the asserted patent’s invalidity before the USPTO, provided that such challenges are timely filed within one year of the complaint for patent infringement. The Supreme Court ruling in Thryv v. Click-to-Call Technologies gives the USPTO almost unfettered authority to decide whether a party properly sought review under the America Invents Act (“AIA”) within the one year, or was in privity with a supplier, business partner or other party who had been sued. The ruling is a blow to patent owners, who have frequently challenged inter partes review proceedings on those grounds and won at the U.S. Court of Appeals for the Federal Circuit.

But letting patent owners tie up proceedings with timeliness appeals cuts against the AIA’s goal of weeding out bad patent claims efficiently, Justice Ruth Bader Ginsburg wrote for 7-2 majority. Doing so would “tug against that objective, wasting the resources spent resolving patentability and leaving bad patents enforceable,” Ginsburg wrote.

Justice Neil Gorsuch dissented, arguing that the time-bar is “both a constraint on the agency’s power and a valuable guarantee that a patent owner must battle the same foe only once,” and the PTO should not have “freewheeling authority” to interpret it.

The case is Thryv Inc. v. Click-To-Call Technologies LP, case number 18-916, in the Supreme Court of the United States.

For more see, https://www.law360.com/ip/articles/1246469/breaking-supreme-court-bars-time-bar-appeals-in-ptab-cases?nl_pk=85f4326a-8e56-4fad-9fe8-a41f009140e5&utm_source=newsletter&utm_medium=email&utm_campaign=ip

Carissa T. Howard is an intellectual property attorney with over 16 years of experience, Carissa’s practice is focused in federal court intellectual property litigation, patent prosecution, trademark prosecution, intellectual property counseling, and contract drafting. She also has experience in intellectual property licensing and preparing due diligence, infringement and validity opinions. She can be reached at howardct@hh-law.com or 412-288-2213

#3M® Sues NJ Based #PerformanceSupply, LLC for #N-95 Mask #Trademark Infringement and #Covid Related #PriceGouging

https://www.3m.com/3M/en_US/company-us/search/?Ntt=n95+masks

Plaintiff #3M® Company filed suit in the USDC SDNY on Friday against New Jersey based Performance Supply, LLC alleging Trademark Infringement, Unfair Competition, False Endorsement, False Designation of Origin, False Advertising, Trademark Dilution, NY State Law Deceptive Acts and Practices, and seeking Injunctive Relief and Exemplary Damages. 3M indicates in the suit that any recovery of damages will be donated to Covid-19 related charities. See the Complaint as filed here:

3M claims that Performance Supply falsely tried to obtain a purchase order and sell through a quote to the City of New York, millions of #N-95 Respirator Masks to be used in the battle against #Covid-19. Performance allegedly used the 3M marks (including the TM phrase “3M Science. Applied To Life”®) and 3M references liberally in its proposal and sought to confuse and deceive NY City into believing that Performance Supply and 3M were aligned and working together on the offer to sell masks. Further, the lawsuit alleges that Performance engaged in price gouging in seeking to charge NY prices that were 500-600% above 3M’s list price.

3M alleges that its marks are incontestable, arbitrary and strong and have long been associated with safety masks and equipment. They stress that during this Corona virus crisis, 3M HAS NOT INCREASED ITS PRICES and that this marks a strong comparison to Performance which is accused of price gouging and other business torts under both Federal and NY State Laws. Performance, sought a purchase order from NY through a quote sent to NY’s procurement director. In its formal quote, Performance states that “acceptance of the purchase order is at the full discretion of 3M…” This is alleged by 3M to show a false designation of origin and false endorsement by 3M of the quote. 3M is represented by Mayer Brown LLP.

Posted by Henry M. Sneath, Esquire Co-Chair Litigation Practice Group and Chair of the IP Practice Group: Houston Harbaugh, P.C.  401 Liberty Avenue, Pittsburgh, Pa. 15222. Sneath is also an Adjunct Professor of  Law teaching two courses; Trade Secret Law and the Law of Trademarks and Unfair Competition at Duquesne University School of Law. Please contact Mr. Sneath at 412-288-4013 or sneathhm@hh-law.com

#CARESAct Passes Congress: See link here to the Act which is meant “To provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 #coronavirus #pandemic.” #Covid #CoronaUpdate

Here is the #CARESAct passed this week by both houses in full for easy reference:

#HoustonHarbaugh will be publishing various opinions and guides to the provisions of the CARES Act in the near future.

#ClassAction Lawsuit Challenges #Pennsylvania #Governor #Wolf’s #COVID-19 #Closure Order

Commonwealth of Pa. Flag

What appears to be the first constitutional challenge to #Pennsylvania Governor #Wolf’s #Covid-19 Closure Orders has been filed in the Pennsylvania Eastern District (Philadelphia) Federal Court. In Schulmerich Bells, LLC et al v. Thomas W. #Wolf (Governor of Pa.) and Rachel Levine, M.D. (Pa. Sect of Health) the Plaintiffs bring class action and declaratory judgment claims challenging the constitutionality of the Governor’s Covid-19 mitigation closure orders which shut down the physical operations of many Pennsylvania businesses deemed not to be “life sustaining”. See the Complaint here:

The Complaint begins with the “takings” quote from the 5th Amendment as cited in Armstrong v. United States, 364 U.S. 40 (1960) that the guarantee that “private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Interesting start in this context. The theory appears to be that the Governor has placed the “cost of these closure orders – issued for the benefit of the public – squarely upon the shoulders of private individuals and their families” without just compensation. Schulmerich, from Bucks County, is alleged to be the oldest manufacturer of orchestral quality musical handbells in the US.

Schulmerich repairs handbells and chimes and claims that Spring and Summer are its busiest seasons. Plaintiff’s claim a trickle down effect for their employees, suppliers, performing customers and so on. The company has already laid off 9 workers. The purported class is broad and appears to contemplate inclusion of anyone affected by these orders. Alleged exclusions from the class include inter alia, any persons unemployed at the time of the orders, and any persons working for companies deemed to be “life sustaining”, which were not ordered to be closed. The Plaintiffs claim that the class members could number in the millions. We will monitor this and other similar lawsuits.

Covid 19: Health First, Lawsuits Later?

It would be great if in the midst of the Covid-19 pandemic, that the world could simply focus on health, safety, family and employee issues, but the lawsuits have started. We will monitor them as they will ramp up. Many state and federal courts are shutting down or slowing down so it is unclear when the Covid related suits will actually see a day in court. In New Orleans, an interesting, (albeit somewhat disturbing in the timing), lawsuit has been filed seeking a declaratory judgement against the Governor of Louisiana and global insurer Lloyds of London. Plaintiff Cajun Conti – Oceana Grill Restaurant is seeking property and business interruption insurance from Lloyds, even before they have apparently made a claim. The suit before insurance claim and denial is odd. The suit may be politically motivated. The lawsuit is attached hereto.

Plaintiff restaurant seeks “property damage” for virus contamination of its restaurant, and “business interruption” coverage for the obvious shutdown brought about by government order. If you subscribe to Law360 there is an interesting write-up at: http://tinyurl.com/qscl9m8 “Oceana Grill, which is in New Orleans’ French Quarter, argued that its “all risk” policy with the Lloyd’s underwriters should kick in under the circumstances, noting that the policy doesn’t contain any provisions excluding coverage for losses stemming from viruses or global pandemics.” (Law360) “In its suit, Oceana Grill noted that its policy with the Lloyd’s underwriters requires the existence of a “direct physical loss” to property for coverage to apply. According to the restaurant, that requirement is satisfied by the coronavirus pandemic, given that the virus can remain on surfaces for days. Both Governor Edwards and Mayor Cantrell cited concerns over possible physical damage to properties to support their restrictions.” (Law360)

COVID-19: Latest from Houston Harbaugh, P.C. Pittsburgh, Pennsylvania

High Resolution Covid-19

The latest and best information on Covid-19 should be sought from the CDC. Our law firm Houston Harbaugh, P.C. in Pittsburgh, Pennsylvania www.hh-law.com remains open and fully functional to serve our clients and others seeking legal assistance during this incredibly difficult time. We are complying with the Pa. Commonwealth’s Governor’s Order that all non-life-sustaining businesses remain physically closed and work remotely when possible. We are fully functional in that regard. See the most recent Pennsylvania Covid-19 Mitigation Orders and Guideline. Our law firm’s employment department Chair Craig Brooks issued some important workplace guidelines which should be helpful to businesses and employers as they struggle with the fallout from the Covid disease and related mitigation efforts in this and other states. Click here to see our website and employment guidelines.

Supreme Court Rules That Government is Not a “Person” Under the America Invents Act

ByCarissa T. Howard of Counsel at Houston Harbaugh

Federal law has allowed for third party requests for reexamination of an issued patent on the basis on prior art since the 1980s. Under the America Invents Act of 2011 (AIA), three review processes replaced what was then known as “inter partes reexamination.” These three review proceedings enable a “person” other than the patent owner to challenge the validity of a patent post-issuance: (1) “inter partes review,” §311; (2) “post-grant review,” §321; and (3) “covered-business-method review” (CBM review). As an alternative to or in connection with a patent litigation, an interested third party, an accused infringer, or any “person,” can request one of these types of reviews.

In Return Mail v. Postal Service, the Supreme Court held that “[t]he Government is not a “person” capable of instituting the three AIA review proceedings.” https://www.supremecourt.gov/opinions/18pdf/17-1594_1an2.pdf (June 10, 2019)

Return Mail sued the US Postal Service (part of the US Federal Government) for infringing its mail processing patent and Postal Service petitioned for CBM review under the AIA.  The PTO agreed that the patent claimed ineligible subject matter, and cancelled the claims. On appeal, the Federal Circuit affirmed. Now, the Supreme Court has reversed – holding that the Government is not a person under the statute and therefore cannot petition for AIA review.

Justice Sotomayor led the conservative majority joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh.  Justice Breyer wrote in a dissent that was joined by Justices Ginsberg and Kagan.

The majority here started with its presumption that congressional statutes are not intended to bind or be directed to U.S. Government activity. Here, the court looked and did not find sufficient textual language to overcome that initial presumption.   In particular, the word “person” is used many times in the Patent Act (at least 18 times) and in several different ways.  There is basically no indication that this particular use of “person” was designed to include the U.S. Government. The majority also noted the awkwardness:

Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office).

The dissent argued that the government-not-a-person presumption is rather weak and was overcome by the Patent Act.  In particular, the majority notes that Federal agencies are authorized to apply for patent protection — even though the statute states that a “person” shall be “entitled to a patent.” See 35 U. S. C. §§ 207(a)(1) and 102(a)(1).

Carissa T. Howard is an intellectual property attorney with over 16 years of experience, Carissa’s practice is focused in federal court intellectual property litigation, patent prosecution, trademark prosecution, intellectual property counseling, and contract drafting. She also has experience in intellectual property licensing and preparing due diligence, infringement and validity opinions. She can be reached at howardct@hh-law.com or 412-288-2213

Hemp And Hemp Derived-CBD Trademarks Will Now Be Accepted By USPTO

ByAmber Reiner Skovdal associate at Houston Harbaugh  

On May 2, 2019, the United States Patent and Trademark Office issued an examination guide in an effort to clarify the procedure for examining marks for cannabis and cannabis-derived goods and related services following the 2018 Farm Bill.

The 2018 Farm Bill, formally known as the Agricultural Improvement Act of 2018, removed industrial hemp from the Controlled Substances Act’s definition of marijuana and permits the cultivation of industrial hemp (with the requisite permits and licenses) so long as such plants contain no more than 0.3% delta-9 tetrahydrocannabinol (“THC”) concentration on a dry weight basis. This means that hemp and hemp-derived cannabidiol (CBD) products are no longer controlled substances under the CSA. However, among other restrictions, the 2018 Farm Bill expressly preserved the Food and Drug Administration’s (“FDA”) authority to regulate and provide guidelines for the use of cannabis and cannabis-derived (i.e., CBD) products in food and dietary supplements under the Food Drug and Cosmetic Act (“FDCA”). Under the FDCA, it remains unlawful to use CBD in foods or dietary supplements without approval from the FDA because CBD is an active ingredient in FDA-approved drugs and is undergoing clinical investigations.

In light of the intersections between the CSA, the Farm Bill (AIA), and the FDCA, the USPTO’s examination guide is a welcomed bit of clarification on how the office will proceed with what we understand to be a backlog of cannabis-related trademark applications.

Historically, the USPTO has rejected applications for registration of cannabis or cannabis derived-CBD goods and services, including both marijuana and hemp. Now that hemp has been removed from the CSA, the USPTO will begin accepting hemp-related marks. For applications filed on or after December 20, 2018, the application must specify that the goods identified contain less than .3% THC on a dry weight basis. Similarly, for service-related marks, the application must specify that services involve hemp containing .3% or less THC. For applications filed before December 20, 2018, applicants will be permitted to either amend the filing date or abandon the application and file a new application.

Given that marijuana and its derivatives are still controlled substances, any applications for marks for marijuana or marijuana derived-CBD goods or services involving marijuana-related activities will continue to be rejected as unlawful under federal law. This includes marks used in commerce in states which have legalized medical and adult-use marijuana. Further, even if your desired mark is hemp-related, it may still be rejected by the USPTO, if the related goods violate the FDCA.

As with many areas related to this industry, protecting your intellectual property continues to be a complex and evolving process.

Amber L. Reiner Skovdal has handled diverse matters involving complex commercial and business litigation, insurance and bad faith, products liability defense, employment disputes, and intellectual property litigation including trade secret disputes as well as patent and trademark infringement litigation. She can be reached at reineral@hh-law.com or 412-288-4016