Mondaq Business Briefing articles from December 2006

Mondaq Business Briefing archives from December 2006

Comparative Advertising In Canada - The Changing Landscape.
December 1, 2006... Article by Anthony Prenol, [c] 2006, Blake, Cassels & Graydon LLP Originally published in Blakes Bulletin on Intellectual Property, November 2006 When the Supreme Court of Canada released its decisions this summer in the Veuve...

Keays V. Honda: Court Of Appeal Lessens "Whack" Of Trial Judge's Punitive Damages Award, Though Impact Still Felt.(Honda Canada Inc.)(Kevin Keays)
December 1, 2006... In March of 2006, the Ontario Superior Court of Justice awarded Kevin Keays a record $500,000 in punitive damages, in addition to 24 months pay in lieu of notice, after Honda terminated Keays' employment for frequent work absences due to...

KSR International v. Teleflex: U.S. Supreme Court Hears Argument On Test For Obviousness.(KSR International v. Teleflex)
December 1, 2006... On Tuesday, November 28, 2006, the U.S. Supreme Court heard oral arguments in KSR International v. Teleflex, reviewing the Federal Circuit's "teaching suggestion or motivation" (TSM) test for obviousness. Several justices voiced concern over...

Anticipation Does Not Require Appreciation.(cases)
December 1, 2006... The U. S. Court of Appeals for the Federal Circuit, reversing a bench ruling on the issue of validity, relied on the long-held rule that prior art compositions anticipate even when there was no knowledge of the relevant properties of the...

Court Narrows Literal Construction, But Catches Infringer In Equivalence Net.(cases between Abraxis Bioscience, Inc., v. Mayne Pharma (USA) Inc., )
December 1, 2006... The U.S. Court of Appeals for the Federal Circuit reversed the district court's claim construction and holding of literal infringement, but affirmed its holding that Mayne's generic product infringed Abraxis' (formerly AstraZeneca's) three...

Movin' On Up: The Costs And Benefits Of Graduating To The TSX.(Toronto Stock Exchange)
December 1, 2006... Article by Martin Aquilina and Jonathan Gilhen (student-at-law) One of the biggest decisions a board of directors will face during the life of a corporation is the decision to go public. The board will weigh the benefits, such as improved...

British Virgin Islands Hosts Successful Funds Seminar In London.(British Virgin Islands International Finance Centre)
December 1, 2006... December 1 2006: The British Virgin Islands International Finance Centre has hosted a successful seminar for London-based executives in the mutual and hedge fund industries. The private event, held at the newly refurbished William Kent House...

Saving Acceptance Facilities For Everyone.
December 4, 2006... Key Point The Takeovers Panel has definitively declared that institutional acceptance facilities are an acceptable tool for takeover bids. The later stages of Toll's bid for Patrick saw a Takeovers Panel challenge to Toll's...

Border Measures In Malaysia.(trade agreement)
December 4, 2006... Introduction Combating counterfeit goods has been one of the most talked about issues in the Intellectual Property ('IP') industry for the past few years. This issue is very relevant in present times when many countries are moving towards...

Setting Up A Branch In Switzerland.(finance business entrepreneurs)
December 4, 2006... When establishing any kind of business in Switzerland, the first - sometimes only - suggestion made to entrepreneurs by their financial or fiduciary advisers is to set up a joint stock company. Would be entrepreneurs will be offered standard...

Rural Succession- Be Wary Of Your Children.(Parents responsibility)
December 4, 2006... You work hard building up the family property.You make sacrifices to educate your children, some stay to help you on the property and others move away to greener pastures, to the city or overseas. Some children don't go just because they...

The Challenges Of Trade Mark Protection In China.(Intellectual property rights)
December 4, 2006... China is still the world's leading producer of pirated goods - from DVDs to clothing, from sports goods to construction materials. China introduced patent, copyright and trade mark laws and signed various treaties concerning IP rights in...

Credit Checks- Know Your Rights.
December 4, 2006... Have you ever applied for credit, whether that credit is in the form of a loan, a credit card or even a hire purchase agreement? Or are you in the business of providing credit? If so, the new Credit Reporting Privacy Code will affect you. ...

Phone Driving- To Use Or Not To Use.(road safety regulation)
December 4, 2006... Phone Driving - all of us have heard about phone driving, drivers brought to book, fined, having their hand phones forfeited, and suffering 12 demerit points entered against their driving record. What is actually prohibited by the law? ...

Focus on Technology, November 2006 - Sun Microsystems Shines New Light on Open Source Software: Effectively Managing the Risks of Using Open Source Software.
December 4, 2006... Sun Microsystems Shines New Light on Open Source Software: Effectively Managing the Risks of Using Open Source Software On November 13, 2006, Sun Microsystems ("Sun") announced that it would be releasing the source code of its...

Isle Of Man Poised To Be Europe's Corporate Capital Of Choice.
December 4, 2006... The Isle of Man has enjoyed continuous economic growth for over two decades while at the same time introducing zero business tax, radically reforming its company law and maintaining a 'triple A' credit rating. ANDREW ASHWORTH of Abacus Trust -...

Trademark Protection In Canada: Are You Official Or Are You "Famous".
December 4, 2006... A substantially similar article was originally published in IP & Technology Programme, October 2006. At first glance, official marks and famous marks appear to have little in common. In spite of a seeming lack of commonality, however, they...

The Backlog Of The MIIP And The Federal Courts: One Of The Major Problems For The Industrial Property Litigation In Mexico.(Mexican Institute of Industrial Property )
December 4, 2006... The Mexican Industrial Property (IP) Litigation system is divided in three general instances/stages that in some cases could be increased to four instances/stages. This structure implies, in a first situation, that a final decision in IP...

Tax Accounting Review - Year-End Tax Planning Guide.(tax rules)
December 4, 2006... By the Tax Accounting Group of Duane Morris With tax law constantly changing, new tax-savings strategies are always emerging and this year is no exception. One wrinkle in planning for this year is that the much anticipated "extender...

Combined Cogeneration (and Chiller) Construction Projects.(Cogeneration power plants construction)
December 4, 2006... It has been said that smaller on-site cogeneration plant construction projects have many of the challenges of larger power plant projects but on leaner budgets. This may be an exaggeration, but it embodies the point that smaller projects can be...

Office Holders' Remuneration.
December 4, 2006... It is not often that office holders' remuneration comes before a court. For many sorts of office holder there are provisions for the remuneration to be agreed with a committee or the creditors generally. SIP 9 provides guidance on the...

Real Estate Investment Trusts: Draft Guidance Published.
December 4, 2006... On 30 November 2006 HM Revenue & Customs (HMRC) published draft guidance on the UK Real Estate Investment Trusts (REITs) regime. This represents HMRC's view on how the legislation (contained in the Finance Act 2006 and regulations made on 1...

Go Medical Specification Didn't Go Far Enough.(Go Medical Indus. Pty Ltd. v. Inmed Corp.)
December 4, 2006... Addressing the issues of whether one must satisfy the best mode requirement in the first application to enjoy the priority date of that filing and what criteria must be met by a licensee seeking to invoke the Lear doctrine, the U.S. Court of...

New California Laws Impacting Employers In 2007.(employers benefits law)
December 4, 2006... The 2006 session of the California Legislature produced several new bills which will impact the state's private sector employers in the coming year. Below is an overview of the bills, signed by the Governor, which we view as the most...

Doing Business In The USA: Selecting The Form Of Business Enterprise In The U.S.
December 4, 2006... I. Forms of Business Entities in the U.S. An investor from outside the United States may choose among a variety of company structures to do business in the U.S. The main forms are: Corporation: either a U.S. subsidiary or a U.S....

Doing Business In The USA: Immigration Law.(US visa requirements)
December 4, 2006... Introduction Foreign employers who wish to send personnel to the United States either for business meetings or to work for extended periods of time must obtain visas for their employees. There are two main visa categories: ...

Doing Business In The USA: Antitrust And Unfair Competition.(Federal Trade Commission Act)
December 4, 2006... The antitrust laws of the United States are intended to protect competition-that is, their purpose is to insure a competitive economy and to prevent the exercise of excessive control of a market by any particular business entity. The principal...

Follow The Local Rules -- Carefully!(non-infringement rules)(02 Micro International Limited v. Monolithic Power Systems, Inc.)
December 4, 2006... In a second case in less than four weeks where a party literally lost its claim on a failure to adhere to a procedural order, the U.S. Court of Appeals for the Federal Circuit affirmed a grant of summary judgment of non-infringement based on a...

Don't Be Caught Holding An Empty Bag -- Put Adverse Party On Notice Of All Theories.(cases of pharmaceutical industry)
December 4, 2006... In a recent decision reflecting its substantial deference to district courts' application of their own procedural rules, even when the result is termination of the case, the U.S. Court of Appeals for the Federal Circuit affirmed the dismissal...

It's Official: Thelen Reid And Brown Raysman Now One Firm.(Thelen Reid's Stephen V. O'Neal and Brown)
December 4, 2006... SAN FRANCISCO AND NEW YORK (December 1, 2006)-Thelen Reid & Priest LLP, a national leader in construction, energy, and project finance law, and Brown Raysman Millstein Felder & Steiner LLP, a pioneer in technology law with one of the country's...

Impact Of The Residential Property (Amendment) Act 2006.
December 5, 2006... The Residential Property (Amendment) Act 2006 (Act 9 of 2006) ("RPA Changes") came into effect on 31 March 2006. The RPA Changes have advantages all round for developers and home purchasers. It has also simplified some of the procedures for...

Redundancy - Getting It Right.(evaluation of employee rights)
December 5, 2006... In the past six months the Employment Relations Authority and the Employment Court have issued several decisions about redundancy. The prevalence of redundancy cases serve as a timely reminder that a redundancy must be justified and carried out...

China's First Taxation Policies On Asset-Backed Securities Released.
December 5, 2006... In March 2005, China kicked off the experiment on securitization of credit assets, which allowed banks to sell their credit assets through issuing the securities in the capital market for refinancing. It was regarded as an important step in...

Intermune's CIA Signals OIG's Expectations For Pharma Promotional Activity.(corporate integrity agreement, Office of Inspector General )
December 5, 2006... Executive Summary Action: Pharma manufacturers may face federal civil False Claims Act liability for causing false claims to be submitted to federal health care programs, even though they submit no such claims themselves. In addition,...

Gathering Evidence In The Cayman Islands To Support Proceedings Elsewhere.
December 5, 2006... Gathering evidence in the Cayman Islands is governed by the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (SI 1978/1890) (the 1978 Order). The 1978 Order extended to the Cayman Islands the provisions of the Evidence...

International Client Alert, November 2006.(Bureau of Industry and Security fined EP MedSystems Inc.)
December 5, 2006... BIS Fines EP Medsystems For Filing Voluntary Disclosure A settlement agreement entered into between EP MedSystems and the Bureau of Industry and Security ("BIS") on November 3 does little to refute the common wisdom that companies should...

Green Light For LNG Into Singapore.(Liquefied natural gas)
December 5, 2006... Following an extensive feasibility study, the Singapore Energy Market Authority (EMA) has released a final report regarding the importation of LNG into Singapore which recommends the development of an LNG receiving terminal in Singapore with...

CMS Takes Another Step Toward Achieving Price And Quality Transparency.(Centers for Medicare and Medicaid Services)
December 5, 2006... On November 20, 2006, as part of its Health Care Consumer Initiatives, CMS posted to its website detailed Medicare payment information for certain common services provided by physicians and outpatient hospital departments. This data follows the...

Victorian E-Conveyancing Proposals.(Australia )
December 5, 2006... On 21 August 2006 the first ever electronic lodgement of a discharge of mortgage occurred in Victoria. Victoria is piloting electronic conveyancing. At this stage the proposals are limited to electronic settlements and the rest of...

Consultation Draft Reforms To Retirement Villages Act NSW Announced.
December 5, 2006... On 23 November 2006, the Minister for Fair Trading tabled a consultation draft bill to amend the Retirement Villages Act NSW (the Act). The amendments implement many, but not all, of the 50 recommendations made by the Office of Fair...

Government Of Canada Announces Clean Air Act.
December 5, 2006... General Approach The government will be enacting a regime that proposes to reduce Greenhouse Gas Emissions and air pollution. The government intends to amend the Canadian Environmental Protection Act 1999 and implement regulations that aim...

The Independent Contractors Bill 2006.
December 5, 2006... In Australia there are a significant number of independent contractors, with estimates ranging from 800,000 to 2 million. The Federal Government has long criticised the states for their legal arrangements governing contractors. The criticism...

Workplace Relations And Employment Law.
December 5, 2006... By Heinz Lepahe and Claire Cooper All the latest on unfair dismissals There has been a lot of media coverage about the Howard Government's changes to unfair dismissal laws. Unfair dismissal remedies are no longer available to employees...

Limitation of Liability For Pennsylvania Architects.
December 5, 2006... Indemnification provisions are frequently utilized in construction contracts to shift the liability for loss from one contracting party to another.1 Under Pennsylvania law, such provisions are generally valid and enforceable with a notable...

Diversification Rights and Notice Requirement for Retirement Plans With Investment In Employer Securities-IRS Delays Date For Providing Notice And Issues Model Notice.
December 5, 2006... As we previously reported, the Pension Protection Act of 2006 (the "Act") made significant changes to the laws governing retirement plans. While the effective dates of many of these changes are staggered over the next several years, there are...

Illinois Title Insurers No Longer Liable For Faulty Title Commitments.
December 5, 2006... In the construction industry, many parties routinely rely upon title commitments to determine the current state of title. Lenders, contractors and lien claimants may request title commitments ancillary to entering into agreements with the...

Ohio Voters Approve Smoking Ban And An Increase In Minimum Wage.
December 5, 2006... After a heated election campaign, with both sides devoting considerable resources to promoting their respective positions, Ohio voters approved two new pieces of legislation affecting Ohio employers. Ohio voters approved a new statute providing...

Two-Part Inquiry Required To Determine Whether An Issue Is Referable To Arbitration.
December 5, 2006... The U. S. Court of Appeals for the Federal Circuit, applying Ninth Circuit law to the issue of arbitrability of a defense, vacated a district court's denial of stay of litigation pending arbitration finding it had not performed the correct...

A Rose (Or Grass) By Any Other Name...(United States Court of Appeals affirmed the Trademark Trial and Appeal Board's refusal to register the mark "Rebel" for grass seed)
December 5, 2006... The U. S. Court of Appeals for the Federal Circuit, in affirming the Trademark Trial and Appeal Board's (the Board) refusal to register the mark "Rebel" for grass seed, agreed that the mark is a generic designation for such seed. In re...

Buying Online - Some Practical Issues For Buyers.
December 5, 2006... Most companies now trade online so it is important that buyers understand their legal position. Online contracts may be created in a number of ways but generally they are carried out by email exchange or via a supplier's website. The...

"Progressive Encroachment" Does Not Justify A Quarter Century Of Delay.(Tillamook Country Smoker )
December 5, 2006... The U.S. Court of Appeals for the Ninth Circuit denied a laches defense where the senior user had knowledge of the junior user's activities, acquiesced in the junior user's use and only acted when, after 25 years, the channels of trade of the...

Human Resources Management In A Hot Economic Climate.
December 5, 2006... When No Longer in the Driver's Seat - How To Craft or Revise Enforceable Employment Contracts Introduction One of the best principles of leadership I have heard is: "Treat every employee like a volunteer." In a hot economy,...

Smoking Ban To Come Into Force 1 July 2007.
December 5, 2006... All enclosed public places and workplaces will become smokefree from 1st July 2007. The implementation of the smoke-free elements of the Health Act 2006 will mean that virtually all enclosed public places and workplaces will become...

Cartel Law Amendment 2005.
December 5, 2006... It has only been three years since the Austrian cartel law was last amended. Whereas at that time the focus was on the creation of new authorities (Federal Competition Authority and Federal Cartel Prosecutor) and procedural changes, the new...

Insolvency Practitioners Should Strike Early To Strike Out.
December 5, 2006... Following a liquidation or other insolvency procedure, insolvency practitioners may find themselves in the line of fire from disappointed claimants. As a result IPs, are often the targets for complaints and subsequently, litigation; in many...

Securities Law : A Guide To The Hong Kong Code On Takeovers And Mergers.
December 5, 2006... Introduction The Hong Kong Code on Takeovers and Mergers (the "Takeovers Code") regulates takeovers and mergers in Hong Kong and applies to public companies and companies with a primary listing of their equity securities in Hong Kong. ...

Lawyers Appeal Death Sentence For Alabama Inmate.
December 6, 2006... By Peter Racher and Donna Marron The American Bar Association's Death Penalty Representation Project seeks volunteer counsel to pursue post-conviction appeals for indigent inmates on death row who are without state-funded counsel. While...

A Comparative Study Of The Chinese Patent Law Practice.
December 6, 2006... PATENT LITIGATION Over the past few decades, many high-profile patent infringement cases have been litigated in the U.S. courts. After years of judicial practice and academic research, the U.S. has developed a set of legal doctrines on...

Employers' New Headache: SF's Paid Sick Leave Law.(analysis of employers law )
December 6, 2006... On November 7, San Francisco voters approved the first law in the nation mandating that employers provide paid sick leave to all employees. The law is effective February 5, 2007. Proposition F provides an important benefit to employees, but...

Legal Project Management - Developing And Managing The Scope Of Work, Schedule, Budget And Communications For Legal Transactions And Dispute Resolution.
December 6, 2006... Managing a legal matter, whether it's a transaction or a dispute, can be equally as important as executing the actual legal work. Attention to both management and execution will help to ensure that client needs and expectations are met in a...

Theory Into Action - Calculating Damages Payments And Accounts Of Profits In Patent Cases.
December 6, 2006... It is all well and good to be encouraged to apply and obtain for patent protection. The main remedies for patent infringement are a narrow injunction to prevent future instances of the infringement, and either damages or an account of profits....

Remoteness Not An Element Of "Innocent Use" In The Ninth Circuit.(Quicksilver Inc. v. Kymsta Corp.)
December 6, 2006... Addressing for the first time the issue of whether remoteness is a requirement of innocent use under the Lanham Act, the U.S. Court of Appeals for the Ninth Circuit found that it was not. The court added that incorporating a remoteness...

U.S. Supreme Court Hears Oral Argument in Preemption Case Concerning National Bank Operating Subsidiary.
December 6, 2006... Contents: Developments of Note U.S. Supreme Court Hears Oral Argument in Preemption Case Concerning National Bank Operating Subsidiary FRB Issues Final and Proposed Amendments to Regulation E OCC Issues Interpretive Letter...

Update - Postponement Of New ERISA Notice Requirement.(Employee Retirement Income Security Act of 1974)
December 6, 2006... As we explained in our recent Legal Update (see New ERISA Notice Requirement May Require Action by December 2, 2006, November 2006), the Pension Protection Act of 2006 ("PPA") creates new diversification rights for participants in retirement...

The Amended Federal Rules of Civil Procedure: Four Essentials You Should Know.
December 6, 2006... On December 1, 2006, certain of the Federal Rules of Civil Procedure were amended to provide consistent ground rules for parties dealing with Electronically Stored Information ("ESI") in discovery. Everyone talks about the amendments in the...

Summary Of The Law Commissions' Issues Paper On Warranties.
December 6, 2006... The English and Scottish Law Commissions are currently working on a review of the law of insurance and last week produced their Issues Paper on warranties. Although the paper has not been subject to formal scrutiny by the Commissioners and does...

New Immigration Rules For Applicants Seeking Settlement In The UK.
December 6, 2006... The Government has announced that, from 2 April 2007, all adults applying for settlement in the UK (also known as "indefinite leave to remain" or "permanent residence") will need to pass a "Life in the UK" test or an English language course....

Two Home Wins For Wayne Rooney.(accused Nominet UK and World Intellectual Property Organization)
December 6, 2006... Both Nominet and WIPO have recently upheld complaints by footballer Wayne Rooney and Stoneygate 48 Limited, a company wholly owned by him, against the registration of the domain names waynerooney.co.uk and waynerooney.com (respectively), and...

Highways Surfacing Chooses Summit In Bid To Achieve Main Contractor Status.
December 7, 2006... Sub-contractor Highways Surfacing has chosen RedSky IT's Summit software solution in a bid to continue its rapid growth over the next two years and pitch itself as a main competitor to big name contractors. The company, which was founded...

Window Protection.(Brief article)
December 7, 2006... SPS Protection have just completed the window protection for the first of eight - eleven storey tower blocks in Bradford, amazingly in under three days with just a two man team, as opposed to masking taking an estimated ten working days! ...

Patent Rule Changes: Preparing A Medtech Portfolio.
December 7, 2006... A version of this article was originally published in Medical Device Link, September 18, 2006 Earlier this year, the U.S. Patent and Trademark Office (PTO) proposed several changes to patent practice that could significantly alter the way...

Trends in Compulsory Licenses in Greater China.
December 7, 2006... Originally published in IP Law 360, August 16, 2006 Greater China, including mainland China and Taiwan, has long been eyed for its opportunities to reach an almost untouched billion person consumer base. Not surprisingly, a number of U.S....

'Tis The Season To Be Jolly Careful'.(christmas parties)
December 7, 2006... Whilst the work Christmas party may be the highlight of the social calendar for many employees, the morning after can see the kind of headache for employers that isn't solved by a couple of alka seltzer... Just because office Christmas...

Outsourcing R&D to India: Pitfalls to Avoid.
December 7, 2006... Originally published in Patent Strategy & Management, October 2006 In today's global marketplace, an increasing number of technology driven companies include R&D outsourcing as part of their business practice. Some industry sectors even...

What Is The Current Approach Of The Courts When A Party Refuses To Mediate? P4 Limited v Unite Integrated Solutions Plc.
December 7, 2006... Following the Court of Appeal decisions in the cases of Halsey v Milton Keynes General NHS Trust and Steel v Joy and Halliday [2004] EWCA Civ 576, which were decided together in May 2004, the position of the Courts was clear. Parties were to be...

New Exemptions From DMCA Anti-Circumvention Rules Primarily Impact Narrowly Circumscribed Uses And Industries.(Digital Millennium Copyright Act of 1998)
December 7, 2006... Summary Effective November 27, 2006, the Librarian of Congress announced the adoption of six exemptions to the Digital Millennium Copyright Act's ("DMCA") anti-circumvention provision, the exemptions to apply for the next three years. The...

Liability For Psychiatric Injury - Can Employers Ignore The Warning Signs?(Green v DB Group Services Ltd.)(Daw v Intel Corporation UK Ltd.)
December 7, 2006... Poor treatment of employees in the workplace caught the media spotlight this summer following the award of more than [pounds sterling]800,000 made by the High Court to Helen Green, who brought a successful claim for psychiatric illness suffered...

When An Expert Is Not Really An Expert.
December 7, 2006... A recent Ontario Superior Court decision serves as a strong reminder that counsel should ensure that their expert witness is in fact an expert and not merely an advocate dressed up as an expert. Mr. Justice Todd Ducharme, in Dulong v. Merrill...

Building A Secure World.(terrorism)
December 7, 2006... There was a two-day conference at National Hall, Olympia, London on 5th and 6th December 2006. Some of the speakers were Lord Carlyle, Police Information Technology Department, The Foreign Office, the United Nations Security, The...

Planning Gain Supplement - Further Proposals.
December 7, 2006... As part of the pre-budget report the Government has published today for consultation further details in relation to Planning Gain Supplement. Three separate consultation papers have been issued in relation to the following:- Changes to...

RSL Issues - A Briefing For Registered Social Landlords, November 2006.
December 7, 2006... In this edition of RSL issues, we discuss the potential changes to the 2007 SORP now that the consultation phase has come to an end. We also look at other topical issues, including the benefits that a REIT may offer RSLs. 2007 SORP - what...

IP Strategy And Regulatory Controls - You Don't Have To Be Sued To Get (Generic) Exclusivity In The US (Zocor Returns).
December 7, 2006... (Ranbaxy v Michael O Leavitt, US Court of Appeals for the District of Columbia, 14 Nov. 2006) Take home This one's succinct but very important for those interested in the interplay between IP strategy and government regulatory control...

Service Charge Caps For Tenants - Do They Work?(Princes House Limited vs. Distinctive Clubs Limited)
December 7, 2006... The short answer is yes, they can. A tenant taking premises within a building already in need of significant repairs will often seek to cap his contribution to the service charge so as to exclude the cost of carrying out those repairs. ...

Italian Administrative Court blocks Telecom Italia's high speed 20Mbit Internet.(Telecom Italia S.p.A., Association of Italian Internet Services Providers)
December 7, 2006... Telecom Italia's Alice 20Mega offer has been blocked by a decision of the Regional Administrative Tribunal of Lazio (No. RG 4376/2006, hereinafter the "Decision"). The Decision was rendered in a claim filed by AIIP (Association of Italian...