
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.
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.
Comments Off on #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
Posted in CARES Act, Covid, Covid Employment Law, Covid Pennsylvania, Covid-19, CovidLaw, CovidLaw19, Houston Harbaugh
Tagged CARES Act, Covid Employment Law, Covid Pennsylvania, Covid-19
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.
Comments Off on #ClassAction Lawsuit Challenges #Pennsylvania #Governor #Wolf’s #COVID-19 #Closure Order
Posted in Business Risk, Covid, Covid Employment Law, Covid Pennsylvania, Covid-19, Covid19, CovidLaw, CovidLaw19, Houston Harbaugh
Tagged Covid Employment Law, Covid Law, Covid Pennsylvania, Covid-19
By: Carissa 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
Comments Off on Supreme Court Rules That Government is Not a “Person” Under the America Invents Act
Posted in America Invents Act, Houston Harbaugh, Patents, United States Supreme Court
Tagged AIA, America Invents Act, business methods, government, Infringement, inter partes review, invalidity, patent, post review grants, reexamination, SCOTUS, Supreme Court
By: Amber 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
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Posted in Houston Harbaugh, Trademarks
This is the question being litigated in a high-stakes cyber insurance coverage dispute between global snack food giant, Mondelez International, and its insurer, Zurich American Insurance Company, in Illinois state court. “NotPetya” was a 2017 ransomware attack in which infectious code impacted a number of global corporations, including Mondelez, encrypting computer hard drives and demanding payment for access to the data. Mondelez claims that it suffered damage to its hardware and operation software systems valued in excess of $100 million as a result of the attack. In early 2018, the U.S. and its allies publicly attributed the cyberattack to the Russian government. Russia denied the allegations. Modelez submitted an insurance claim to Zurich under an all-risk property insurance policy. Mondelez alleges that Zurich denied the claim based on a policy exclusion that excluded coverage for “loss or damage directly or indirectly caused by or resulting from … [a] hostile or warlike action … by any government or sovereign power … or agent or authority [thereof].” In October 2018, Mondelez filed suit against Zurich in Cook County, Illinois to determine whether the exclusion applies. According to the docket the case is currently pending, and working its way through the discovery process.
This case is being closely watched by corporations and insurers alike as it may have broad implications on cyberattack coverage for both traditional and specialized cyber insurance policies that contain the same or similar exclusions. What evidence will the insurer present to seek to prove that this war exclusion applies?
Pieces by Brian Corcoran on Lawfare (here) and Jeff Sistrunk on Law360 (here) each contain in-depth discussions of the case and its potential implications on the cyber insurance market. The docket for the case can be found here (select the Law Division and enter Case Number 2018-L-011008).
Posted by R. Brandon McCullough attorney at Houston Harbaugh, P.C. 401 Liberty Avenue, Pittsburgh, PA 15222. Brandon concentrates his practice primarily in the areas of insurance coverage and bad faith litigation, complex commercial and business litigation and appellate litigation. Please contact Mr. McCullough at 412-288-4008 or mcculloughb@hh-law.com with any questions pertaining to this article or any other legal matters.
Comments Off on Was the 2017 “NotPetya” Ransomware Attack an Act of War?
Posted in Business Risk, Computer Technology, Cybersecurity, Data Breach Prevention, Data Breach Response, Data Security, Houston Harbaugh, P.C.
Tagged cyber insurance, cyber security, cyberattack coverage, intellectual property, intellectual property litigation, notpetya
Comments Off on Opinion from @Proskauer Rose: Urges More Consistency in Non-Competes. Federalization?
Posted in Business Risk, Defend Trade Secret Act 2016, DTSA, dtsalaw, Employment Agreements, Houston Harbaugh, Non-Compete Agreements, Restrictive Covenants
Tagged DTSA, Employment Agreements, Non-Compete Agreements, Restrictive Covenants, Trade Secrets
Posted by Henry M. Sneath, Esq. at HoustonHarbaugh P.C., Pittsburgh, Pa. 412-288-4013 or sneathhm@hh-law.com
Comments Off on Confession: I Have a Blackberry (Blackberry Files Patent Suit!)
Posted in Houston Harbaugh, Patents
Tagged intellectual property, intellectual property litigation, patent, patent eligible subject matter, patent litigation, pittsburgh intellectual property litigation, pittsburgh patent litigation
Comments Off on Walmart USPTO Application for “Drone Pollinators” Published
Posted in Houston Harbaugh, Patents, Technology
Tagged Drone Pollinators, Drones, intellectual property, intellectual property litigation, patent, patent eligible subject matter, patent prosecution, pittsburgh intellectual property litigation, pittsburgh patent litigation, USPTO
From our friends at Law.Com: In the growing market for cyber insurance, carriers are trying to compete on price. One carrier, Coalition is offering discounts if your company creates a partnership with a “white hat hacker” and establishes a bug bounty with that hacker. The hacker gets a bounty for finding vulnerabilities. Legal Tech author Rhys Dipshan details the program in the article at this link: http://tinyurl.com/ydck3nxg
Dipshan reports that “bug bounties” are becoming a popular weapon in combating cyber attacks. “Unsurprisingly” Dipshan reports, “bounty programs are becoming increasingly common in the tech and corporate world, with companies such as Facebook, Microsoft and Uber offering compensation for vulnerability disclosures. They also have caught on in the federal government as well, with the Department of Defense launching its “Hack the Pentagon” and “Hack the Air Force” programs.” Do you need a cyber bounty hunter?
Posted by Henry M. Sneath, Esq. HoustonHarbaugh, P.C. – Pittsburgh, Pa. https://www.hh-law.com Chair of the Intellectual Property Practice Group and Co-Chair Litigation Practice Group. Contact at: sneathhm@hh-law.com or 412-288-4013
Comments Off on From Legal Tech/Law.Com news: A Bug Bounty for Discounts on Cyber Insurance
Posted in Business Risk, Cybersecurity, Data Breach Prevention, Data Breach Response, Data Security, Houston Harbaugh, Technology, Trade Secret
Tagged Data breach, data breach response, data security, pittsburgh, pittsburgh intellectual property litigation, Pittsburgh Technology, Western District of Pennsylvania
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