May 21, 2010 by Robert Tharp at 4:05:20 pm Patent approvals at an all-time high; patent seekers still facing long delays
The first two weeks of May 2010, respectively ranked as Nos. 1 and 2 in terms of the most patents granted in a single week by the United States Patent and Trademark Office. That trend shouldn't be surprising says Jane Politz Brandt, a partner and co-chair of the Intellectual Property Practice Group at Thompson & Knight. Speaking at the Texas Lawyer Intellectual Property Law Roundtable in Dallas, Ms. Brandt noted that the rising number of patents issued is reflective of the current process at the USPTO.
"The patents being issued today may have been filed as far back as 2007, before the present economic environment. Before the current financial crisis, many U.S. companies were making heavier investments in research and development, and you saw a higher number of patent applications," she says. "Aaron Levine noted that it takes four or five years for those applications to gain approval. Steve Kennedy commented that this is indicative of the problem that many see in the Patent Office - the process simply takes too long."
Ms. Brandt notes the lag time for patent approval is a particular problem for small companies. "These companies many have an outstanding product, something that's truly beneficial to society, but the process can lead to frustration and failure, especially for those seeking venture capital."
Earlier this week, Representatives John Conyers Jr., a Michigan Democrat and chairman of the House Judiciary Committee, and Lamar Smith of Texas, the ranking Republican on the committee, introduced the Patent and Trademark Office Funding Stabilization Act. The bill seeks to address some major complaints about the USPTO, including a patent application backlog of more than two years.
The bill would allow the USPTO to impose a temporary 15 percent increase on its patent fees, and it would prohibit Congress from diverting patent fees away from the agency. In addition, the bill would allow the USPTO to hire new patent examiners and improve patent quality. Members of the Senate Judiciary Committee have long tried to reach consensus on a more wide-ranging patent bill, which would allow new challenges to granted patents and would make it tougher for patent holders to prove willful infringement and collect huge damages. That bill, introduced in March 2009, is awaiting full Senate approval, but there remain several disagreements about the legislation. Similar bills introduced in 2005 and 2007 also went nowhere.
May 20, 2010 by Robert Tharp at 11:07:29 am Maritime worker offered only $35k settlement for his industrial accident injuries; Arnold & Itkin goes to trial and wins $1.5 million verdict on his behalf
When Gilberto Villegas was seriously injured in a 2008 industrial accident while working at APM Terminals' marine terminal at the Port of Houston, the international container terminal operating company offered to pay Villegas only $35,000 compensation for his injuries. Harris County jurors had a different idea regarding AMP Terminals' responsibility for Villegas' injurires. After six days of testimony, jurors handed down a $1.55 million verdict against AMP earlier this month.
Writes Lexis/Nexis: Villegas suffered injuries to his neck and other areas on May 29, 2008 while he was working as a ship repairman at APM Terminals' marine terminal at the Port of Houston. He was standing in the bed of a pickup truck when a yard truck driver working for APM Terminals collided with his vehicle. APM Terminals argued that its driver was not at fault because the pickup truck was parked in the middle of an intersection. The company also argued that there was only a minor impact because the yard truck driver was traveling at 1 or 2 mph at the time of the accident. Villegas' lawyers advised him to press his case despite claims by the company, APM Terminals, that it was not at fault. Lawyer Jason Itkin said the company's highest settlement offer was $35,000. "We're proud to have stood by our client and proud to have gotten him the compensation he deserved," Jason Itkin said
Villegas' attorneys alleged that the driver APM Terminals authorized to operate the yard truck was not licensed. In a complaint filed in the case, Jason Itkin and Cory Itkin of Houston trial law firm Arnold & Itkin LLP alleged the company "knew or should have known that (the driver) was an incompetent, reckless driver, and/or unlicensed driver at the time of the entrustment." Although Villegas required neck surgery after the accident, APM argued that he had suffered neck pain prior to the accident.
"As recent events have shown us all, maritime workers face some of the most dangerous working conditions anywhere," says Jason Itkin, co-founder of Arnold & Itkin. "That's why it's so important for companies to provide safe work sites and make sure their employees are following proper safety protocols."
"On behalf of the entire Villegas family, we would like to thank the jury for holding this company accountable," says Cory Itkin. "Without the jury's help APM would have gotten away with this and swept Mr. Villegas and his case under the rug."
May 19, 2010 by Robert Tharp at 3:21:21 pm Facebook privacy: an oxymoron
Those new, relaxed privacy settings implemented by Facebook should be raising serious concerns for the more than 400 million members who use the popular social media network. Granted, Facebook includes plenty of narcissists who have no problem with attention from strangers, but until now the rest of us could enjoy some expectation that their posts and photos could be limited to a group of self-selected friends.
Computer forensics and data security expert Erin Nealy Cox, managing director of Stroz Friedberg's Dallas offices, says users are now far less able to control who views information about their friends, photos, group memberships and dialogue, as well as Facebook's ability to share this information with advertisers, serach engines and other social media networks. "Millions and millions of Americans have grown accustomed to sharing personal information on Facebook," Ms. Nealy Cox says. "Many people have jumped in with the belief that they can control access to their information. These changes should spur all Facebook users to carefully review their account settings."
San Francisco Chronicle columnist Yobie Benjamin recently tested Facebook's new privacy filter and came away less than impressed. His conclusion: Despite his best efforts to jump through all of Facebook's new hoops and keep his Facebook activities private, his postings remained available for the world to see.
May 19, 2010 by Robert Tharp at 2:43:06 pm Sayles Werbner wins important IP litigation representing tiny Commil USA in patent fight against Cisco Systems
Dallas lawyers Richard A. "Dick" Sayles and Mark S. Werbner have earned a multimillion dollar patent infringement verdict against one of the world's biggest tech companies. The case, tried in the Eastern District of Texas in Marshall, Texas, hinged on allegations by Commil USA LLC that Cisco Systems Inc. had stolen patented technology relating to wireless devices. The Marshall News Mesenger reports that jurors deliberated about 3 hours before ruling in favor of Commil and ordering Cisco to pay $3.7 million in royalties.
The Commil USA technology contained in U.S. Patent No. 6,430,395 (the '395 patent) was developed by three Israeli engineers, Yaron Soffer, Nitzan Arazi and Haim Barak, who later formed Commil with a group of investors. The technology in the '395 patent allows wireless devices to move from point to point on a computer network without signal interruption. Prior to this groundbreaking invention, network users experienced frequent signal disruptions leading to data losses, dropped calls and other errors.
Although the '395 patent applies to many network platforms, including Wi-Fi, the three engineers initially developed products based on Bluetooth technology. When Wi-Fi eclipsed Bluetooth in the marketplace, Commil was forced to close its doors and the company's assets were purchased by Commil USA. The lawsuit was filed after Commil USA discovered its technology was being used by a Cisco subsidiary to produce its own Wi-Fi product line.
"We took this case to trial on behalf of hard-working inventors everywhere - whether they're highly trained engineers or garage tinkerers," says Commil USA CEO Jonathan David. "The jury was right to find that Cisco infringed our valid patent, and we believe there will be additional opportunities to determine whether additional damages should be awarded as this case continues through the legal process."
In June, Sayles won the largest patent verdict to date of $1.67 billion in an infringement case that pitted his client, Pennsylvania-based Centocor Ortho Biotech Inc., against giant Abbott Laboratories.
May 6, 2010 by Robert Tharp at 9:52:39 am Got Milk? Health Care Reform Act supports nursing moms on the job
There is a fascinating story by Patricia Montemurri over at the Detroit Free Press regarding new protections in the Health Care Reform Act for working moms who are breastfeeding their newborns. Provisions within the legislation regarding breast pumping in the workplace have flown mostly under the radar. Writes Montemurri: The legislation directs employers with more than 50 workers to provide a private, on-site nursing space and "reasonable" unpaid time to pump milk. But the legislation, which went into effect in March, is raising a host of questions: Do employers have to build lactation lounges? Should pump time be included in daily work schedules?
Advocates are urging the U.S. Department of Labor to quickly issue guidelines. Most health experts and working moms agree that the legislation not only will provide health benefits, but also boost a company's bottom line."
Over at Gardere Wynne Sewell LLP in Dallas, employment attorney Carrie Hoffman says there are still some loose ends still to be worked out in the law, but it is a big step forward for those trying to juggle a career with the care of an infant. "U.S. Department of Labor has not yet defined what ‘reasonable' is in this scenario and the provided break time will be unpaid, but there is apparently no limit on the number of legitimate breaks that can be taken to express milk other than reasonableness," she said, adding that another benefit to employees is that companies must make a private area available to the mother. "Not everyone has the luxury of having an office that they can retreat to, so it provides an important level of dignity to have a place to go to that is sanitary and not open to coworkers."
May 4, 2010 by Robert Tharp at 4:04:53 pm The First Rule of Fight Club: Government Workers Not Shielded From Lawsuits About Abuses at Corpus Christi State School
Five profoundly disabled residents of the Corpus Christi State School will get their day in court, now that a federal judge has ruled that a civil lawsuit over videotaped fights inside the school can proceed. The five residents claim they were forced into brutal on-camera fights by school employees, and they allege that the State of Texas, school leadership and the state agency responsible for caring for the mentally disabled violated the residents' constitutional rights to safe conditions and protection from harm.
In the ruling, the court rejected attempts by four defendants to claim qualified immunity from the lawsuit based on their roles as government employees. The defendants include Adelaide Horn, former Commissioner of the Texas Department of Aging and Disability Services (DADS); Barry Waller, former Assistant Commissioner, Provider Services of DADS; Denice Geredine, former Director of State Schools; and Iva Benson, former Superintendent of the Corpus Christi State School. The case is now set for trial July 2.
Writes the Austin American-Statesman: Lawyers for the residents argue that the officials should have known before the 2008 and 2009 fight club incidents that more security was necessary, in part because of a Department of Justice investigation that began in 2005 that concluded that the 13 Texas facilities fail to protect residents from harm. The Justice Department is still monitoring the facilities, now called state supported living centers, which are home to 4,300 Texans. In 2007, there were 1,013 allegations of abuse, neglect or exploitation - and 51 confirmed cases - at the 430-bed facility, according to court documents. That year, administrators had seen enough of an increase in horseplay that a facility official sent a warning to staffers that such incidents would not be tolerated.
Attorney Bob Hilliard, a founding member of Hilliard Munoz Guerra, is part of the team representing Armando Hernandez, David Hernandez, George Brazil, Angel Jose Mata and Christopher Norris. In related litigation, four former state school employees previously have been convicted on charges of injury to a disabled person. Another former employee is still awaiting trial.
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