Tagged: Litigation

The Deposition Not Taken: Eighth Circuit Holds Third Party Document to be Business Records of Another Entity Admissible Under FRE 803(6)

In Residential Funding Co., LLC v. Terrace Mortgage Co., (Docket No. 12-2569, August 7, 2013) the Eighth Circuit upheld a grant of summary judgment, including damages evidenced by records created by a third party and supported by the third party’s affidavit. Ordinarily, an affidavit of a third party, if authenticated under FRE 902(11) (See Klock, New Jersey Practice, V2D, 555 (West 2009) is admissible if an appropriate foundation is laid. See Klock, New Jersey Practice, V2E, 342-43 (West 2012). Proper authentication requires notice of intent to use the affidavit. The affidavit in question apparently was not authenticated in that manner.

Good for the Gander: New NY Pilot Program Shows E-Discovery Is Also On State Courts’ Radar

New York state court practitioners need to be increasingly mindful about their e-discovery obligations. Although Congress and the federal courts have largely blazed the e-discovery trail to date, e-discovery issues are slowly but surely being addressed at the state level as well. Recently, New York’s Electronic Discovery Working Group selected Part 48 of the Commercial Division of the State Supreme Court in New York County (currently run by Justice Jeffrey K. Oing) to participate in a pilot program to utilize a new Electronic Discovery Order (“EDO”) form.

Color Trademarks Remain in Fashion: Second Circuit Sides with Louboutin

Earlier today, the United States Court of Appeals for the Second Circuit issued its long-awaited decision in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc.. The Appellate Court decision reversed the lower court’s finding that a single color can never serve as a trademark for fashion. It also found that Louboutin’s red, lacquered shoe outsole had acquired distinctiveness and is protectable as a trademark. However, the Court went on to state that the trademark is “limited to uses where the red outsole contrasts with the color of the remainder of the shoe.” The case has now been remanded to the District Court for further proceedings.

Norman IP v. Lexmark: Post AIA Joinder and the Rule 42 Trump Card

In Norman IP Holdings, LLC v. Lexmark Int’l, Inc., a recent Eastern District of Texas decision, Chief District Judge Leonard Davis provided guidance on the application of Fed. R. Civ. P. 20 (“Rule 20”) joinder and Fed. R. Civ. P. 42 (“Rule 42”) consolidation in patent infringement cases post-enactment of the Leahy-Smith America Invents Act (“AIA”). Norman IP brought suit against Lexmark and others on September 15, 2011, one day before the AIA was signed into law. Norman IP later added an additional 23 defendants. The defendants filed a motion to dismiss for improper joinder or to sever, and Norman IP alternatively requested that any severed cases be consolidated under Rule 42. The Court granted defendants’ motion to sever and issued an order consolidating the cases for pretrial issues excluding venue.

Already v. Nike: Petitioner’s Brief Asserts that Jurisdiction Remains Despite Covenant Not to Sue

In a prior blog, we reported that the Supreme Court had granted certiorari in Already, LLC dba Yums v. Nike, Inc., No. 11-982, to an appeal from the Second Circuit’s decision affirming the Southern District of New York’s holding that a covenant not to sue entered in a trademark dispute ended the case and controversy between the parties.

Intellectual Asset Management Ranks Gibbons Among Top IP Law Firms and Practitioners Worldwide

Intellectual Asset Management (IAM) ranks Gibbons among the top IP law firms and practitioners worldwide in its guide – IAM Patent Litigation 1000 – The World’s Leading Patent Litigators. David E. De Lorenzi, Chair of the Gibbons Intellectual Property Department, and Sheila F. McShane, a Director in the Department, were two of only five intellectual property lawyers featured as leading individuals in this practice.

USPTO Offers IP Awareness Assessment

Under the joint auspices of the US Patent and Trademark Office the National Institute of Standards and Technology/Manufacturing Extension Partnership, the IP Awareness Assessment is now in the beta stage and available for businesses and inventors to assess their intellectual property awareness. Dubbed “A business and inventor’s IP education tool,” this web-based offering is designed to assess IP knowledge and provide personalized training resources for businesses and inventors.

Agree or Else: Delaware Adopts Revised Default Standards for Discovery

Effective December 8, 2011, the U.S. District Court for the District of Delaware revised its Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”). This third version of the Revised Default Standards contains some new provisions that apply to the discovery of ESI absent agreement by the parties or court order. The Revised Default Standards also set a detailed schedule for the initial exchange of discovery in patent litigation, and reinforce the Court’s expectation of cooperation among the parties and proportionality in the preservation, identification and production of relevant information. Some of the highlights and practical points of the Revised Default Standards are as follows:

The Hatch Waxman Act and Induced Infringement

Oral argument was recently heard before the Federal Circuit in the appeal of AstraZeneca Pharms. LP. v. Aurobindo Pharma Ltd. AstraZeneca, along with IPR Pharmaceuticals, Inc., and The Brigham and Women’s Hospital, Inc., (“Plaintiffs) sued ten generic drug companies alleging infringement of US Patent Nos. 6,858,618 (“the ‘618 patent”) and 7,030,152 (“the ‘152 patent”) under the Hatch-Waxman Act. These patents claim methods of treatment using rosuvastatin calcium, which Plaintiffs market as Crestor®.

Gibbons Intellectual Property Department Attains National and Metropolitan Rankings in 2012 Best Lawyers

Gibbons P.C. is proud to announce that two practices within its Intellectual Property Department have achieved national and metropolitan rankings in the 2012 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession. In addition, Department Chair David E. De Lorenzi has been individually ranked in three different IP categories.