Mondaq Business Briefing back issues from July 2005:
A Patent Office Printing Error can Invalidate a Patent.
Jul 01, 2005 ... The U.S. Court of Appeals for the Federal Circuit recently affirmed a judgment of invalidity due to claim indefiniteness where necessary claim language was omitted during the printing of the patent by the U.S. Patent and Trademark Office (USPTO). Group One Ltd. v. Hallmark Cards, Inc, Case ...
An Introduction to the World of Intellectual Property and Antitrust.
Jul 01, 2005 ... Even after significant shocks to the "new economy", the creation of intellectual property remains an essential part of the U.S. market. Studies from as recently as two years ago indicate that the U.S. generated the most patents per capita in the world and conducted far more research and ...
Medicare 2006 SNF PPS Payment Update Proposes Significant Changes; Long-Term Care Pharmacies Part D Plan Arrangements for January 1, 2006.(skilled nursing facilities )
Jul 01, 2005 ... As mandated under the Prospective Payment System (PPS) for skilled nursing facilities (SNFs) in effect since July 1, 1998, the Centers for Medicare and Medicaid Services (CMS) published its proposed annual update of Medicare rates for fiscal year 2006, which starts on October 1, 2005 ....
Expert Testimony is no Substitute for Disclosure of Structure Supporting a Means-Plus-Function Claim Element.
Jul 01, 2005 ... In affirming the district court's summary judgment of invalidity for indefiniteness, the U.S. Court of Appeals for the Federal Circuit held that structures corresponding to a means-plus-function element must be disclosed in the specification; an expert's testimony concerning what unlisted ...
Spectrum Plus - House of Lords decides that the bank's charge over book debts was floating rather than fixed.
Jul 01, 2005 ... This morning, the House of Lords judges gave their decision in National Westminster Bank plc v Spectrum Plus Limited and others [2005] UKHL 41. The Lords unanimously upheld the Vice Chancellor's first instance decision and found that the bank's debenture created a floating ...
The New Consumer Protection Act - Get Ready Now.
Jul 01, 2005 ... The new act and its regulations (the "New Legislation") consolidates and modernizes six existing consumer protection laws which will be repealed and replaced by the New Legislation including the Business Practices Act, Consumer Protection Act ("Old Act"), Consumer Protection Bureau Act, ...
Florida Intangible Personal Property Tax Alert.
Jul 01, 2005 ... Under the State of Florida's Intangible Personal Property Tax, all Florida residents who own, manage or control non-exempt intangible assets as of January 1 of a calendar year will be subject to the Florida Intangible Tax for that year. Intangible assets are assets that lack physical ...
Recent Income Tax Treaty Changes.
Jul 01, 2005 ... Originally published June 2005 The U.S. is now participating in a new income tax treaty with Japan that replaces a treaty executed in 1971. In addition, the U.S. and Netherlands have executed a protocol to the existing 1992 income tax treaty and 1993 protocol. The highlights of ...
Recent Supreme Court Decision Will Make It Easier for Companies to Litigate Class Actions and Multi-Party Claims in Federal Court.
Jul 01, 2005 ... Originally published June 29, 2005 The Supreme Court last week handed down a ruling with significant consequences for corporations engaged in multi-party and class action litigation. The Court decided two cases that questioned whether all plaintiffs must allege damages in excess ...
SEC Adopts Sweeping Public Offering Reforms.
Jul 01, 2005 ... Originally published June 30, 2005 The Securities and Exchange Commission adopted final rules yesterday that will implement sweeping reforms of SEC rules governing public offerings of securities under the Securities Act of 1933. The new rules were adopted substantially as ...
Exclusive Dealing Hits a Speed Bump in Dentsply.(United States v. Dentsply International Inc. case)
Jul 01, 2005 ... Exclusive dealing arrangements with wholesalers have enjoyed increasingly favorable treatment in the courts over the past twenty five years -- until the Third Circuit Court of Appeals announced its decision in United States v. Dentsply.1 The court reversed the judgment of a district court, ...
Some Considerations Related With the Ethics in the Patentability of Biotechnology Related Inventions in Mexico.
Jul 01, 2005 ... New technologies derived from biological sciences, particularly those related with genetically modified organisms (GMOs), have generated ethical concerns in Patent Offices worldwide. As Mexico is not an exception, there is no doubt that some modifications to its Industrial Property Law in ...
Insurance business - will your company suffer when the VAT exemption changes in 2006?(vlaue added tax)
Jul 04, 2005 ... In early July, HM Revenue and Customs will be issuing their consultation document on proposed changes to the UK VAT legislation. These will restrict substantially the scope of the current exemption for insurance business in line with the European Court of Justice decision in the Arther ...
Patenting Nanotechnology Inventions: Overcoming Obviousness When a Different Size of Your Invention Is Known.
Jul 04, 2005 ... Originally published in Nature Biotechnology, June 2005 Copyright [c] Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Imagine that you have created nano-sized particles of a known drug, providing a new way to deliver that drug to a patient. Or perhaps you have ...
'Teaching Away' Requires Clear Discouragement from Claimed Combination.
Jul 04, 2005 ... The U.S. Court of Appeals for the Federal Circuit found "clear error" in a district court ruling that a patent directed to an ophthalmic anti-inflammatory drug formulation, marketed by Allergan, Inc. (Allergan) under the brand name ACULAR[R], was valid and not an obvious variation of ...
Compliance With License Agreement Obviates any Reasonable Apprehension of Lawsuit.
Jul 04, 2005 ... The U.S. Court of Appeals for the Federal Circuit affirmed dismissal of a patent licensee's declaratory judgment action for lack of subject matter jurisdiction, finding that the licensee, MedImmune, failed to establish that an actual controversy existed between it and the licensor, ...
National Security Review of Foreign Investments to be Introduced in Canada.
Jul 04, 2005 ... The Minister of Industry has tabled amendments to the Investment Canada Act (the "ICA") to permit the review of foreign investments that could compromise national security. The ICA applies whenever a non-Canadian establishes a new Canadian business or seeks to acquire control of ...
Entertainment Industry Wins a Major Victory Against Music Downloading.
Jul 04, 2005 ... The Supreme Court handed the entertainment industry a major victory last week when it ruled that companies that offer file sharing software may be liable if the software is used to download copyrighted songs and videos. The entertainment industry may have won the battle, but the war ...
Government Contracts Client Alert - June 2005.
Jul 04, 2005 ... Article by John Daniel, Mary Baroody Lowe, Carl Gebo and Trinh Huynh Timeliness of Proposal Submissions: GAO, CAFC and COFC Issue Decisions Preparing proposals and quotations is difficult, time-consuming and expensive. In comparison, getting the proposal submitted on ...
Communications Law Bulletin -- June 2005.
Jul 04, 2005 ... The Month in Brief June of 2005 brought new staff appointments at the Federal Communications Commission ("FCC" or "Commission"), a long-awaited Supreme Court decision on the regulatory status of cable modem service, and a number of other developments across the wireline, ...
BJ's and DSW Cases Open a New Front in the War on Data Insecurity.(BJ's Wholesale Club Inc.)
Jul 04, 2005 ... Both federal and state regulators have expanded their campaigns against companies that fail to secure customer data or fail to advise consumers when breaches of information security have occurred. The new enforcement strategy, which targets companies that have given no assurances to ...
Seeing the Wood for the Trees - A Vertical Approach to Merger Assessment.
Jul 04, 2005 ... In the early days of merger review, competition authorities were generally less concerned with the vertical impact of mergers than with the consolidation of market power on a horizontal level. More recently, the tendency has been to apply a more cautious approach in assessing the economic ...
Deloitte Weekly VAT News - Week ended 1 July 2005.
Jul 04, 2005; ... Investment Banks facing higher VAT costs? Organisations that provide research notes and similar financial briefings without charging for them may be facing increased VAT costs. We hear that Customs have decided that "free" briefings of this kind cannot be used to justify VAT ...
Employee Benefits Briefing - July 2005.
Jul 05, 2005 ... Contents IRS Permits Grace Period For FSA Claims Know Your Current Plan Fees Impact Of New Bankruptcy Act On Employee Benefit Plans IRS PERMITS GRACE PERIOD FOR FSA CLAIMS On May 18, 2005, the IRS issued Notice 2005-42 permitting ...
Offshore Pilot Quarterly - Commentary on Matters Offshore.
Jul 05, 2005 ... Dragons and Virgins Offshore financial centres need thick skins. Not only are they under constant criticism from the governments of developed countries, those individuals who don't use their facilities are, generally speaking, less than flattering in their views of them as well ....
State Law Unjust Enrichment Claim is Preempted by the Federal Patent Laws.
Jul 05, 2005 ... Addressing the issue of preemption, the U.S. Court of Appeals for the Federal Circuit held that the plaintiff could not proceed on a state law unjust enrichment claim based solely on the defendant's use of publicly available information and where the plaintiff did not allege it provided ...
Given Fair Opportunity to Present Case, Sua Sponte Grant of Summary Judgment is Not a Violation of Due Process.
Jul 05, 2005 ... Addressing a sua sponte grant of summary judgment, the U.S. Court of Appeals for the Federal Circuit affirmed a party is not deprived of due process rights when provided a fair opportunity to present its case. Air Turbine Tech., Inc. v. Atlas Copco AB, Case No. 04-1387 (Fed. Cir. Jun. 7, ...
Is it Win-Win for Adjudicators, Whatever the Service?
Jul 05, 2005 ... There are few occupations where a person has the right to be paid whether the work they deliver is right or wrong, or where the work duplicates what has been carried out already. Being appointed adjudicator to resolve disputes in the construction industry does, however, seem to be one of ...
New protection against technology abuse under Government's Fraud Bill.
Jul 05, 2005 ... Phishing attacks and online credit card fraud could soon be a thing of the past as the Government prepares to update the law relating to fraud in light of technological advancement. The Government's new Fraud Bill was introduced into the House of Lords on 25 May 2005. The Bill modernises ...
U.S. Supreme Court Rules on Closely-Watched Copyright Infringement Case.
Jul 05, 2005 ... On June 27, 2005, the U.S. Supreme Court issued an opinion in the case of Metro- Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., unanimously holding that a party that distributes a product with the goal of advancing the use of the product to infringe copyright can be held liable for the ...
Money laundering reporting requirements refined at last.
Jul 05, 2005 ... The government finally appears to have acknowledged that the current money laundering reporting regime is onerous. The need for refinement was recognised last month by the chairman of the Serious and Organised Crime Agency, the body which will take responsibility for money laundering from ...
Corporate Governance In An Offshore Centre.
Jul 05, 2005 ... INTRODUCTION More is expected from directors now than in the past. Sir Howard Davies, the former head of the United Kingdoms Financial Services Authority, has said that "the Crown Dependencies [of which Guernsey forms part] continually have to go that extra mile just to prove ...
Swiss Competition Law - Landmark Decision by the Supreme Court.
Jul 05, 2005 ... Since the entry into force of the Swiss Competition Act in 1996, the question as to the capacity of third parties to appeal decisions regarding concentrations has remained controversial. In a decision dated June 14 2005, the Swiss Supreme Court eventually held that third parties (including ...
The State Of Business Today - An Unbiased Reality Check.
Jul 05, 2005 ... By A.V. "Tony" Narinesingh, CMC, CPC, APC, CC. It is said that confession is good for the soul. So, as we move forward during this new century, we should, as businessmen and consultants, take the time to contemplate our role as leaders and decision makers. As the bard once ...
Broader Protection for Your Trademarks, is it Possible?
Jul 05, 2005 ... Well-known and Famous Marks Would you like to broaden your trademarks protection in Mexico and (in some cases) abroad? Would you like to be able to stop third parties from registering YOUR mark for different goods and services in Mexico or other country? Recent reforms to the ...
Una Mayor Proteccion Para Sus Marcas ?Es Posible?
Jul 05, 2005 ... Marcas Notoriamente Conocidas y Famosas. Le gustaria aumentar la proteccion de su marca en Mexico e incluso (en algunas cosas) en el extranjero? Que le pareceria poder impedir que alguien registrara SU marca para productos diferentes o en otro pais? Gracias a recientes ...
Confusion Reigns on REACH in the Food and Feed Sector*.(Registration, Evaluation, Authorisation and Restriction of Chemicals )
Jul 06, 2005 ... Originally published March 2005 While the most significant implications of the REACH Proposal should rest towards the top end of the chemical supply chain, there are significant concerns in the food and feed sector that the Proposal will unnecessarily impact upon its business ...
LePage's and Dentsply: The Limitations Section 2 Imposes on a Dominant Firm's Ability To Engage In Exclusive Dealing.
Jul 06, 2005 ... Exclusive dealing has long been a source of concern under the antitrust laws. Section 3 of the Clayton Act, 15 U.S.C. s. 14, expressly prohibits conditioning a sale or discount upon the purchaser refusing to deal with the seller's competitors when the effect of such a sale or discount ...
Following Remand from D.C. Circuit SEC Determines Fund Governance Rules Need No Modification.(Securities & Exchange Commission (US government))
Jul 06, 2005 ... At an open meeting on June 29, 2005, the SEC voted 3-2 not to alter its prior adoption of additional governance requirements for investment companies ("funds") registered under the Investment Company Act of 1940, as amended (the "1940 Act"). The SEC's reconsideration was prompted by the ...
SEC Votes in Favor of Groundbreaking Changes to U.S. Public Offerings.(Securities and Exchange Commission)(Brief Article)
Jul 06, 2005 ... The Securities and Exchange Commission is making groundbreaking changes to the rules that regulate the way companies make public offerings in the United States. In an open meeting June 29, 2005, the commissioners voted to approve the new regime, which was originally proposed in November ...
Supreme Court Docket Report - October Term 2004 - No. 12.
Jul 06, 2005 ... Originally published June 13, 2005 Recently the Supreme Court granted certiorari in one case of interest to the business community. Barring extensions, amicus briefs in support of the petitioner will be due on July 28, 2005, and amicus briefs in support of the respondent will be ...
California Supreme Court Clarifies Guidelines for Punitive Damages.
Jul 06, 2005 ... Two years after the U.S. Supreme Court's opinion in State Farm v. Campbell, the California Supreme Court has clarified the guidelines for imposition of punitive damages in Simon v. San Paolo U.S. Holding Co. and Johnson v. Ford Motor Co. The California Supreme Court issued two ...
Shrink-wrap License Does Not Rise to Misbranding under the PVPA.(Plant Variety Protection Act)
Jul 06, 2005 ... In the context of a shrink-wrap license used to package soybean seeds, the U.S. Court of Appeals for the Federal Circuit upheld the district court's dismissal of soybean farmer Showmaker's false marking claim. Edward Showmaker v. ADVANTA USA, INC. Case No. 04-1502 (Fed. Cir. Jun. 14, 2005) ...
Reducing Risk In International Investments.
Jul 06, 2005 ... CROSS-BORDER INVESTMENTS always involve political risk. This is particularly true in the case of natural resource assets, which cannot be spirited away in the event of political instability. Potential losses arising from government interference include: the direct ...
Ninth Circuit Applies Supreme Court Precedent and Remands Fair Use Case for Further Proceedings.
Jul 06, 2005 ... In a decision late last year, the Supreme Court vacated and remanded this trademark case to the Ninth Circuit, holding that an accused infringer should not be required to prove "no customer confusion" in order to establish a fair use defense. The Ninth Circuit has now held the district ...
Continuing Obligations Of A Company Listed On AIM - London's Alternative Market.(Alternative Investment Market)
Jul 06, 2005 ... A company that has been admitted to AIM - a market operated by the London Stock Exchange - must comply with the AIM Rules for Companies ('AIM Rules'). The responsibility for such compliance lies with the company and its directors (Rule 29). The admission requirements and the continuing ...
Listing On AIM: London's Alternative Market.(Alternative Investment Market)
Jul 06, 2005 ... AIM, the alternative market of the London Stock Exchange, is the world's leading market for smaller, growing companies. Since its launch in 1995, over 1,500 companies have chosen to join AIM and raised in excess of [pounds sterling]15bn. Currently over 1,000 companies are traded on AIM ...
Qualified Retirement Plans: June 2005 Developments.
Jul 06, 2005 ... What goes around comes around in the retirement plan world, again. As you may have heard, as of the first of the year, the only retirement plan offered to new IBM employees is the IBM 401(k) plan. IBM is doing a remarkable job of infusing its 401(k) plan with features intended to approach ...
Control of vibration at work regulations 2005.
Jul 06, 2005 ... New regulations on prevention of vibration risks in the workplace come into force on 6 July. The new rules, which deal with the control of diseases caused by vibration at work from equipment, vehicles and machines, will help both employers and employees to take preventive action. ...
Good Records can Minimize Worker Claims.
Jul 07, 2005 ... Almost every employer will face a discrimination claim someday. Federal, state and local laws protect nearly all employees from discrimination on the basis of gender, age, race, national origin, religion, sexual orientation, disability or workplace injury. They also protect employees from ...
Consent for Registration of a Mark by the Proprietor of an Earlier, Similar Trademark is not Always Sufficient.
Jul 07, 2005 ... I. Summary In a decision of the Intellectual Property Adjudicator (Hearing Officer) dated December 7, 2004, given in connection with Israel trademark application No. 152627 for "CHUNKY" (stylized), in class 30 ("the 'CHUNKY' trademark application"), it was held that the consent ...
New Jersey Law on Governing Law Contract Provisions.
Jul 07, 2005; ... Article by Gianfranco A. Pietrafesa, Esq.* This article examines New Jersey case law on governing law provisions typically found in contracts and frequently ignored by attorneys. Attorneys automatically include these provisions in their contracts without a real understanding of ...
In Dog of Case, Ninth Circuit Declines to Extend Standing to Bring Lanham Act "False Advertising" Claim to Non-Competitors.
Jul 07, 2005 ... Addressing standing to bring a "false advertising" claim under s.43(a) of the Lanham Act, the U.S. Court of Appeals for the Ninth Circuit has confirmed that a plaintiff must show: (1) a commercial injury based upon a misrepresentation about a product and (2) the injury is competitive or ...
Ninth Circuit Case Imposes Stiff Pleading and Proof Standard on Trademark Owner.
Jul 07, 2005 ... In an opinion that appears to raise the bar for mark owners pleading trademark infringement, while at the same time lowering the bar for accused infringers hoping to get out on summary judgment, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling that the ...
Protecting a Lessee's Section 365(h) Right to Possession after Rejection From a Sale of the Underlying Real Estate Free and Clear Of Interests.
Jul 07, 2005 ... Ever since the 7th Circuit's decision in Precision Industries, Inc. v. Qualitech Steel SBQ, LLC, 327 F. 3rd 537(7th Cir. 2003), bankruptcy practitioners and lessees have wondered if, in the context of a debtor-in-possession or a trustee sale of real estate free and clear of any interests ...
The Application of the Competition Act to Franchise Agreements.
Jul 07, 2005 ... The Competition Commission recently published a notice designed to inform franchisors and franchisees about the impact of the Competition Act on their franchising arrangements (available at http://www.compcom.co.za). The Commission makes it clear that despite the unique nature ...
Underwriters and Fiduciary Duties.
Jul 07, 2005 ... The New York Court of Appeals has granted the creditors of eToys, Inc., a bankrupt dot-com retailer, the right to pursue a claim for breach of fiduciary duty against the lead underwriter of the company's IPO. Among other things, the underwriter is alleged to have failed to disclose a ...
IRS Issues New Regulations for Withholding on Effectively Connected Income Allocable to Foreign Partners.(Internal Revenue Service.)
Jul 07, 2005 ... On May 13, 2005, the Treasury Department issued final and temporary regulations (T.D. 9200) and proposed regulations (REG-108524-00) as guidance on the withholding tax obligation - under section 1446 - of partnerships that are engaged in a U.S. trade or business and have one or more ...
Nominating a next of kin.(legal liability, and rights to access medical records and inheritance)
Jul 07, 2005 ... Originally published March 2005 Despite the widespread use of the phrase 'next of kin', this is neither defined nor given formal legal status by English law. Next of kin cannot consent to or refuse treatment on an individual's behalf (nobody can do that for an adult). A next of ...
Health Warnings on Health Information.
Jul 07, 2005 ... Originally published April 2005 Paranoia is rife about the new duties placed on employers by Part IV of the Employment Practices Data Protection Code which relates to information about employees' health. Much of the fear is misplaced and, in fact, although there is a need to ...
Focus on Insolvency Law, May 2005 - Androscoggin Energy LLC - Blue Range Revisited.
Jul 07, 2005 ... Introduction In only the second case heard in Canada on the subject of eligible financial contracts, the Ontario Court of Appeal recently handed down a decision in the reorganization of Androscoggin Energy LLC. In so doing they provided guidelines for determining those types of ...
Focus on Climate Change, May 2005.
Jul 07, 2005 ... Introduction The Kyoto Protocol to the United Nations Framework Convention on Climate Change (the "Protocol Protocol") entered into force on February 16, 2005 and committed thirty industrialized countries to reduce or limit their greenhouse gas ("GHG GHG") emissions for the ...
Key Issues in Canadian Employment Law.
Jul 07, 2005 ... American businesses continue to expand north of the border, with the result that many American companies now have employees working in Canada. While the strong political, economic and cultural ties that bind Canada and the United States permit American companies to draw on their domestic ...
OCC Issues Residential Mortgage Lending Guidelines.(Office of the Comptroller of the Currency)
Jul 08, 2005 ... Originally published April/May 2005 The Office of the Comptroller of the Currency ("OCC") recently issued Guidelines Establishing Standards for Residential Mortgage Lending Practices ("Guidelines"). 70 Fed. Reg. 6329 (Feb. 7, 2005). The Guidelines apply to the residential ...
Observations on Canada-U.S. Trade Relations in 2005.
Jul 08, 2005; ... Article by Cliff Sosnow, [c]2005 Blake, Cassels & Graydon LLP This article was originally published in Blakes Bulletin on International Trade - April 2005 The U.S. market is clearly Canada's top trade priority, but there are several simmering disputes including the ...