Mondaq Business Briefing articles from July 2005

Mondaq Business Briefing archives from July 2005

A Patent Office Printing Error can Invalidate a Patent.
July 1, 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...

An Introduction to the World of Intellectual Property and Antitrust.
July 1, 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...

Medicare 2006 SNF PPS Payment Update Proposes Significant Changes; Long-Term Care Pharmacies Part D Plan Arrangements for January 1, 2006.(skilled nursing facilities )
July 1, 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...

Expert Testimony is no Substitute for Disclosure of Structure Supporting a Means-Plus-Function Claim Element.
July 1, 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;...

Spectrum Plus - House of Lords decides that the bank's charge over book debts was floating rather than fixed.
July 1, 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...

The New Consumer Protection Act - Get Ready Now.
July 1, 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its regulations (the "New Legislation") consolidates and modernizes six existing consumer protection laws which will be repealed and replaced by the New Legislation including the Business Practices Act, Consumer Protection Act...

Florida Intangible Personal Property Tax Alert.
July 1, 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....

Recent Income Tax Treaty Changes.
July 1, 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...

Recent Supreme Court Decision Will Make It Easier for Companies to Litigate Class Actions and Multi-Party Claims in Federal Court.
July 1, 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...

SEC Adopts Sweeping Public Offering Reforms.
July 1, 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...

Exclusive Dealing Hits a Speed Bump in Dentsply.(United States v. Dentsply International Inc. case)
July 1, 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...

Some Considerations Related With the Ethics in the Patentability of Biotechnology Related Inventions in Mexico.
July 1, 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...

Seeing the Wood for the Trees - A Vertical Approach to Merger Assessment.
July 4, 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...

Deloitte Weekly VAT News - Week ended 1 July 2005.
July 4, 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...

Insurance business - will your company suffer when the VAT exemption changes in 2006?(vlaue added tax)
July 4, 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...

Patenting Nanotechnology Inventions: Overcoming Obviousness When a Different Size of Your Invention Is Known.
July 4, 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...

'Teaching Away' Requires Clear Discouragement from Claimed Combination.
July 4, 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],...

Compliance With License Agreement Obviates any Reasonable Apprehension of Lawsuit.
July 4, 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...

National Security Review of Foreign Investments to be Introduced in Canada.
July 4, 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...

Entertainment Industry Wins a Major Victory Against Music Downloading.
July 4, 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...

Government Contracts Client Alert - June 2005.
July 4, 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,...

Communications Law Bulletin -- June 2005.
July 4, 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...

BJ's and DSW Cases Open a New Front in the War on Data Insecurity.(BJ's Wholesale Club Inc.)
July 4, 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...

Employee Benefits Briefing - July 2005.
July 5, 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...

Offshore Pilot Quarterly - Commentary on Matters Offshore.
July 5, 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...

State Law Unjust Enrichment Claim is Preempted by the Federal Patent Laws.
July 5, 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...

Given Fair Opportunity to Present Case, Sua Sponte Grant of Summary Judgment is Not a Violation of Due Process.
July 5, 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...

Is it Win-Win for Adjudicators, Whatever the Service?
July 5, 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...

New protection against technology abuse under Government's Fraud Bill.
July 5, 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...

U.S. Supreme Court Rules on Closely-Watched Copyright Infringement Case.
July 5, 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...

Money laundering reporting requirements refined at last.
July 5, 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...

Corporate Governance In An Offshore Centre.
July 5, 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...

Swiss Competition Law - Landmark Decision by the Supreme Court.
July 5, 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...

The State Of Business Today - An Unbiased Reality Check.
July 5, 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...

Broader Protection for Your Trademarks, is it Possible?
July 5, 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...

Una Mayor Proteccion Para Sus Marcas ?Es Posible?
July 5, 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...

Confusion Reigns on REACH in the Food and Feed Sector*.(Registration, Evaluation, Authorisation and Restriction of Chemicals )
July 6, 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...

LePage's and Dentsply: The Limitations Section 2 Imposes on a Dominant Firm's Ability To Engage In Exclusive Dealing.
July 6, 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...

Following Remand from D.C. Circuit SEC Determines Fund Governance Rules Need No Modification.(Securities & Exchange Commission (US government))
July 6, 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")....

SEC Votes in Favor of Groundbreaking Changes to U.S. Public Offerings.(Securities and Exchange Commission)(Brief Article)
July 6, 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...

Supreme Court Docket Report - October Term 2004 - No. 12.
July 6, 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...

California Supreme Court Clarifies Guidelines for Punitive Damages.
July 6, 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. ...

Shrink-wrap License Does Not Rise to Misbranding under the PVPA.(Plant Variety Protection Act)
July 6, 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,...

Reducing Risk In International Investments.
July 6, 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...

Ninth Circuit Applies Supreme Court Precedent and Remands Fair Use Case for Further Proceedings.
July 6, 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....

Continuing Obligations Of A Company Listed On AIM - London's Alternative Market.(Alternative Investment Market)
July 6, 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...

Listing On AIM: London's Alternative Market.(Alternative Investment Market)
July 6, 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....

Qualified Retirement Plans: June 2005 Developments.
July 6, 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...

Control of vibration at work regulations 2005.
July 6, 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...

Good Records can Minimize Worker Claims.
July 7, 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...

Consent for Registration of a Mark by the Proprietor of an Earlier, Similar Trademark is not Always Sufficient.
July 7, 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...

New Jersey Law on Governing Law Contract Provisions.
July 7, 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...

In Dog of Case, Ninth Circuit Declines to Extend Standing to Bring Lanham Act "False Advertising" Claim to Non-Competitors.
July 7, 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...

Ninth Circuit Case Imposes Stiff Pleading and Proof Standard on Trademark Owner.
July 7, 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...

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.
July 7, 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...

The Application of the Competition Act to Franchise Agreements.
July 7, 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...

Underwriters and Fiduciary Duties.
July 7, 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...

IRS Issues New Regulations for Withholding on Effectively Connected Income Allocable to Foreign Partners.(Internal Revenue Service.)
July 7, 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....

Nominating a next of kin.(legal liability, and rights to access medical records and inheritance)
July 7, 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...

Health Warnings on Health Information.
July 7, 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,...

Focus on Insolvency Law, May 2005 - Androscoggin Energy LLC - Blue Range Revisited.
July 7, 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...

Focus on Climate Change, May 2005.
July 7, 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...

Key Issues in Canadian Employment Law.
July 7, 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...

OCC Issues Residential Mortgage Lending Guidelines.(Office of the Comptroller of the Currency)
July 8, 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...

Observations on Canada-U.S. Trade Relations in 2005.
July 8, 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...

Computer-Based Forensic Investigations.
July 8, 2005... Article by William Horton, [c]2005 Blake, Cassels & Graydon LLP This article was originally published in Blakes Bulletin on Litigation - May 2005 Documents are the heart of every case. We tend to rely on documents as producing an...

Supreme Court Docket Report - October Term - No. 13.
July 8, 2005... Originally published June 20, 2005 Recently the Supreme Court granted certiorari in two cases of interest to the business community. Barring extensions, amicus briefs in support of the petitioners will be due on August 4, 2005, and amicus...

Challenging arbitral awards: powers of a Tribunal confirmed.
July 8, 2005... An alleged error of a Tribunal in interpreting an underlying contract is not an excess of power under Section 68(2)(b) of the Arbitration Act 1996 provided that the Tribunal was acting within a power. This important principle has confirmed the...

Cash Settled Equity Swaps in Takeovers.
July 8, 2005... While the use of cash settled equity swaps is an established part of the Australian securities market, their use in recent high profile takeovers in Australia has attracted much attention. In particular, this attention has focused on the use of...

Unions May Direct Banners Stating "Labor Dispute" At Customers Of Neutral Businesses.
July 8, 2005... Originally published July 6, 2005 The extent to which neutral third parties may be embroiled in disputes between unions and other employers is a recurring issue that tests the boundaries of the First Amendment and the National Labor...

Whistle-blowing Lines: Conflicting Obligations.
July 8, 2005... Global companies based in the United States that desire to ferret out fraud in overseas operations by implementing policies inspired by Sarbanes-Oxley may find themselves at odds with the laws of other countries. This dilemma is illustrated by...

Another ERISA Fiduciary Duty Wake-Up Call.(Employee Retirement Income Security Act of 1974 )
July 8, 2005... Does your company use a retirement plan consultant to help plan how best to invest the company's pension or 401(k) plan money? If so, you need to take note of, and respond to, concerns raised by the government about conflicts of interest and...

Act Restoring Lapsed Copyright of Foreign Authors Constitutional.
July 8, 2005... The U.S. Court of Appeals for the District of Columbia has recently ruled that restoration of copyright by the Uruguay Round Agreements Act (URAA) for some works of foreign authors that had fallen into the public domain is not unconstitutional....

Don't Forget to Focus on Notice of Merger.
July 8, 2005... When completing a short-form merger under Section 253 of the Delaware General Corporate Law ("DGCL"), a company has a statutory duty to send the target stockholders a copy of Section 262 of the DGCL, Delaware's appraisal statute, and a notice...

Incentives to redevelop brownfield properties through programs of the Connecticut Brownfields Redevelopment Authority.
July 8, 2005... Originally published The Connecticut Brownfields Redevelopment Authority has several programs to help developers and municipalities overcome barriers to Brownfields development. This article features two of these programs, those for...

Parallel trade in pharmaceutical products in Europe: The European Court of Justice's ruling in Syfait v. GSK.
July 8, 2005... May a dominant pharmaceutical company refuse to supply in full the orders it receives from a wholesaler in an EU country in order to limit parallel trade in its products in the European Union? This was the question put to the European Court of...

Economic update - An August rate cut would be the first of a few.
July 8, 2005... Today's decision by the MPC to keep interest rates on hold at 4.75% makes a rate cut in August to 4.5% almost certain. I believe that this would be the first step towards much lower rates. It became clear that the interest rates cycle was...

Merger Agreement Representations Take on a Life of Their Own.
July 11, 2005... The Securities and Exchange Commission recently provided guidance concerning potential liability under Exchange Act Rules 10b-5 and 14a-9 in connection with misstatements and omissions contained in merger agreements and other agreements filed...

National Security: The Next Wave in Takeover Defences?
July 11, 2005... Last week's unsolicited US$18.5 billion bid by China National Offshore Oil Corporation for Unocal Corporation is further evidence that China's state-owned corporations are emerging as serious bidders for North American companies. This bid is...

Insurance Coverage Practice Group.
July 11, 2005... Originally Published in February 2005 Can D&O Insurance Protect Outside Directors Against "Personal Wealth" Settlement Demands? Outside corporate directors have been the targets of recent highly publicized cases in which shareholders...

Constitutional Regime.
July 11, 2005... 1. Introduction. Background The 7th Grand National Assembly enacted the current constitution of the Republic of Bulgaria on 12 July 1991 (the "Constitution"). According to the fundamental principles embodies in the Constitution,...

Gillette Company v LA-Laboratories.(Trademark infringement)
July 11, 2005... This European Court of Justice (ECJ) decision has made it more difficult for trade mark owners to prevent third parties from referring to their trade marks if such endorsement is 'honest'. Gillette had sought an injunction in Finland to...

Keating Chambers Case Law Review June 2005.
July 11, 2005... By Keating Chambers Professional Support Director Professor Anthony Lavers LL.B, M.Phil, Ph.D, MCI.Arb, MRICS, Barrister SECTION 1 - ADJUDICATION Construction Act Reform Improving payment practices by Catriona Dodsworth,...

Singapore's Human Cloning And Other Prohibited Practices Act 2004.
July 11, 2005... On 2 September 2004, Singapore parliament passed new legislation which regulates human cloning and other related activities. The Human Cloning and Other Prohibited Practices Act (hereinafter referred to as "The Act") came into force on 1...