Client Alerts

Most foreign governments require disputes with parties with which they have agreements to be litigated in their courts using their domestic law. This tends to create an unwillingness, on the part the private party, to seek redress in local courts in order to pursue its rights given the tendency of such courts to often side with the government.

EU, CANADA, MEXICO GRANTED A “FINAL”30 DAY EXEMPTION TO “CONTINUE” NEGOTIATIONS; SEVERAL OTHER COUNTRIES GRANTED “PERMANENT” EXEMPTIONS IN EXCHANGE FOR QUOTAS.  PRODUCT EXCLUSION REQUEST PROGRAM BOGGED DOWN.

The Internal Revenue Service has recently announced cost-of-living adjustments applicable to dollar limitations for retirement plans (and other items) for 2018. Many of the retirement plan limitations will change for 2018 because the increase in the cost-of-living index met the statutory thresholds that trigger their adjustment. However, other limitations will remain unchanged because the increase in the index did not meet the statutory thresholds that trigger their adjustment.

The Courts Make Several Precedential Decisions and the USPTO Issues a Memo Helping to Clarify the ‘Alice’ Patentability Analysis: It’s a Matter of Fact!

For those patent law aficionados out there, March and April were exciting months. The Courts AND the USPTO made several key determinations that cover topics from the constitutionality of USPTO proceedings to clarifying how the courts and the patent office are to determine what exactly is needed to show “significantly more” for purposes of satisfying the ‘Alice’ patentability analysis

The United States International Trade Commission ("USITC" or "Commission") has announced changes to its Rules of Practice and Procedure of Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) cases. Section 337 investigations conducted by the USITC most often involve claims regarding intellectual property rights, including allegations of patent infringement and trademark infringement by imported goods. 

These Section 337 rule changes, which are final, go into effect 30 days from publication in the Federal Register. 

I would categorize the Cambridge Analytica incident/breach in a similar fashion to the Edward Snowden revelations in that the Snowden revelations that awakened the world—and specifically the EU—to the extent of nation-state monitoring (in the Snowden case, it was the US’s monitoring activities, but don’t think for a second that every other country that was outraged at our monitoring wasn’t doing the very same thing to us and others) that ultimately resulted in the collapse of the US-EU Safe Harbor self-certification program, the rise of the temporary fix with the Privacy Shield and now the soon-to-be-implemented General Data Protection Regulation.  All of this furor over the loss of privacy and the “theft” of personal data must be placed into context.

On Monday, the Environmental Protection Agency (EPA) rolled back the Obama-era auto emissions standards for 2022 to 2025 model-year cars and light-duty trucks. At first glance, this appears to be a clear win for automakers, who have been complaining for years that the steep targets for fuel economy and emissions are not only costly, but also stifling to the American automotive market. While the political motivations and topics like the impact of these rollbacks on carbon dioxide (CO2) emissions will likely be debated over the coming weeks around water coolers, coffee stations in the office, and on countless media outlets, one of the most pressing questions that need-be answered is, what will the impact of these rollbacks be on the automotive supply base?

The U.S. Trade Representative(USTR) announced on April 3, that it has  determined that the acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation covered are” unreasonable or discriminatory and burden or restrict U.S. commerce” and is proposing retaliatory tariffs on some 1300 items.  USTR is seeking public comment on the proposed tariffs and will hold a public hearing regarding a proposed determination on appropriate action.  USTR proposes an additional duty of 25 percent tariff on a list of products from China. The list of products, defined by 8-digit subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), is set out below.

There is money and business management support available for the commercialization of good ideas in the health industry sector. In the second annual The Autonomous Patient: Entrepreneurs Driving Healthcare II© event held at Automation Alley, industry thought leaders, entrepreneurs with technologies, devices and pharmaceuticals, business incubators, and representatives from private and public financing sources shared their battle-honed perspectives and blunt advice to current and would-be entrepreneurs involved or interested in the burgeoning healthcare space.  Rounding out their insight and advice was some practical workshop information on the regulatory environment in which ideas must be turned into action.  An engaged audience took away some valuable advice from the keynote remarks, four panel sessions, questions and the networking discussions that took place around them.

On March 23, 2018, a United States District Court enforced a “no-challenge” clause in a patent license agreement that prohibited the licensee from challenging the licensed patents at the U.S. Patent Office. The court ordered the licensee to file motions with the Patent Office withdrawing its petitions for inter partes review of the licensed patents, among other things.  Dodocase VR, Inc. v. MerchSource, LLC, No. 17-cv-07088-EDL (N.D. Cal. Mar. 23, 2018).

Latest Developments

Hours before stiff tariffs on steel and aluminum (25% and 10% respectively) that were first announced by President Trump two weeks ago became effective, the White House on March 22, 2018 issued a new set of Proclamations temporarily exempting imports from “countries with important security relationships” with the U.S. – i.e., Argentina, Australia, Brazil, all European Union countries, and South Korea --  in order to continue discussions “on satisfactory alternative means to address the threatened impairment to the national security by imports of steel articles from those countries.” Major exporters not included were Japan, China, India, and Turkey.

Publicly Owned Treatment Works (“POTWs”) with Industrial Pretreatment Programs are evaluating facilities that discharge into the POTW to determine whether companies are discharging perfluorooctanoic acid (“PFOA”) or perfluorooctanesulfonic acid (“PFOS”) (collectively, “PFAS”) into the POTW. As part of the State of Michigan’s initiative to track down and eliminate potential sources of PFAS in drinking water, The Department of Environmental Quality (“DEQ”) sent notices to Michigan POTWs reminding them of the state’s previously established and applicable Water Quality Standards (“WQS”) for PFAS , warning that a POTW that passes PFAS through its treatment plant in concentrations exceeding these WQS is in violation of the POTW’s NPDES permit and state law.

The Commerce Department (DOC) published the actual procedure for “individuals and organizations using steel or aluminum articles in business activities in the United States” to seek product exemptions from the Section 232 tariffs on steel and aluminum imports announced by President Trump on March 8 2018. These product exemptions are separate from the country exemptions that the President has invited individual nations (other than Canada and Mexico) to attempt to negotiate.

Exactly one week after his surprise announcement before a group of steel and aluminum industry executives to impose tariffs on “all” steel and aluminum imports in the interest of national security, President Trump followed up on March 8, 2018, with formal Proclamations to implement his decision.  The Proclamations order modification of the Harmonized Tax Schedule to implement an additional ad valorem duty of 25% on imported steel articles, and 10% on aluminum articles,  “with respect to goods entered, or withdrawn from warehouse for consumption” effective March 23, 2018. 

On March 7th, in a highly anticipated opinion, the Court of Appeals for the Sixth Circuit held that discrimination on the basis of transgender status and gender transitioning violates Title VII of the federal Civil Rights Act of 1964, as amended (Title VII). The court overturned a lower court decision that had found a narrow “religious freedom” exception allowing termination of a transgender employee. EEOC v. R.G. & G.R. Harris Funeral Homes, No. 16-2424, 2018 WL 1177669 (6th Cir. March 7, 2018).

After that photo company sent a demand letter for $5,000, you agreed to never again grab images off of Google.  Instead, you turned to Twitter or YouTube or Facebook and grabbed the embed code and put it on your website.  What could go wrong, after all, they make the embedding code so easy to access… 

Despite the fact that copyright law finds its origins in the U.S. Constitution, it is far from an established doctrine.  Never has this been more obvious than when Tom Brady, Twitter and Breitbart News collided in a case that will likely change the way companies across the country address linking social media in websites.

Last week, the Federal Circuit affirmed a U.S. Patent and Trademark Office determination that patent claims are invalid despite its earlier decision upholding the validity of the same claims. Knowles Electronics LLC v. Cirrus Logic, Inc., No. 2016-2010 (Fed. Cir. Mar. 1, 2018).

President Trump announced on March 1 his plan to levy tariffs of 25% and 10% respectively on steel and aluminum imports. His surprise announcement came during a “listening session” at the White House with U.S steel and aluminum company CEOs and in advance of a briefing scheduled with Chinese officials on the impending actions. He described the measures as providing the opportunity for the U.S. to “re-grow” the steel and aluminum industries, which “have been decimated by decades of unfair trade and bad policy with countries from around the world.” Trump only stated the amount of the tariffs; that they would be in effect “for a long period of time”; and that he would sign off on them next week. He did not explain whether they would apply to all exporting countries and/or to all categories of products. The White House provided no other details.

The Tax Cuts and Jobs Act (the new Tax Act) may make sexual harassment settlements more expensive for employers. Prior to tax reform, the Tax Code had permitted companies to take a business deduction for the costs of obtaining sexual harassment settlement agreements. The new act prohibits that deduction if sexual harassment or sexual abuse settlements include non-disclosure provisions.

In a warning shot to manufacturers and sellers of aftermarket automobile parts, a Michigan federal court denied a bid to invalidate design patents to body parts of automobiles, holding that they are non-functional as a matter of law. Automotive Body Parts Association v. Ford Global Technologies, LLC, No. 2:15-cv-10137 (E.D. Mich. Feb. 20, 2018).