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Tartaglia served as Chief of Police at the Veterans Administration Hampton Virginia Medical Center. The VA proposed Tartaglia’s removal based on Abuse of Authority” (six specifications); “Lack of Candor” (two specifications); and “Misuse of Government Property” (one specification). The VA’s deciding official rejected Charge 3 as unsubstantiated, sustained Charge 1 based on five specifications and Charge 2 based on both specifications, and removed Tartaglia from service. An administrative judge affirmed Tartaglia’s removal, finding that the VA failed to prove either specification of Charge 2 and that it proved only three specifications of Charge 1. As to Charge 1, Tartaglia admitted to Specification 5: instructing a subordinate to drive him in a government-owned vehicle for a personal errand while on duty. The Merit Systems Protection Board sustained Tartaglia’s removal based solely on Specification 5, stating that removal fell within the Table of Penalties for that misconduct; Tartaglia’s “misconduct was particularly serious because it went beyond merely misappropriating a Government vehicle, but also included instructing a subordinate to help him”; mitigating factors such as Tartaglia’s “outstanding work record and lack of prior discipline” were “temper[ed]” because Tartaglia had served with the VA for “only approximately [four] years” and Tartaglia expressed remorse “only after initially denying the misconduct..” The Federal Circuit vacated, based on the Board’s miscalculation of Tartaglia’s length of service. View "Tartaglia v. Department of Veterans Affairs" on Justia Law

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Snyder represented a veteran, Beck, under a 2001 fee agreement (38 U.S.C. 5904). Eight months later, Snyder requested the Board of Veterans’ Appeals to cancel his fee agreement. In 2003 the VA awarded past-due benefits based on a 100% disability rating effective 1992. Snyder sought attorney fees. A VA regional officer (RO) determined that Snyder was entitled to $41,920.47, deductible from the past-due benefits. Beck filed notice of disagreement. Beck died. His widow sought to recover the disputed fees as accrued benefits. The RO denied that request. The Board dismissed Beck’s dispute over attorney fees, citing 38 C.F.R. 20.1302, and remanded Mrs. Beck’s claim. The RO determined Mrs. Beck could not recover the disputed attorney fees because her husband’s claim ceased to exist upon his death. She appealed. The VA’s General Counsel published a precedential opinion stating: A claim, pending at the time of a veteran’s death, challenging an attorney’s entitlement to payment of attorney fees under section 5904 from the veteran’s retroactive periodic monetary benefits may provide a basis for an accrued benefits claim under section 5121, because such a claim concerns entitlement to periodic monetary benefits allegedly due and unpaid to the veteran at the time of death. The Federal Circuit dismissed Snyder’s appeal. That 38 C.F.R. 20.1302 requires dismissal of a veteran’s appeal upon his death has no bearing on a claimant’s separate entitlement to accrued benefits under section 5121. The attorney fee dispute remains pending. View "Snyder v. Secretary of Veterans Affairs" on Justia Law

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The District Court for the Northern District of Texas dismissed, for lack of personal jurisdiction, New World’s declaratory judgment complaint against FGTL, a wholly owned subsidiary of the automaker Ford Motor Company. FGTL had previously filed an infringement suit against New World in the Eastern District of Michigan. The Federal Circuit affirmed the dismissal of the declaratory judgment action. Both FGTL and the Ford Motor Company are incorporated in Delaware and headquartered in Michigan. FGTL does no business in Texas and neither maintains an office nor has any employees in Texas. FGTL does not make or sell automobiles or automotive products; it owns, manages, and licenses intellectual property for Ford. FTGL’s pertinent contacts with Texas are limited to the cease and desist letters. While those letters may be sufficient to constitute minimum contacts with the forum, they are not sufficient to satisfy the fairness part of the test for specific personal jurisdiction. View "New World International, Inc. v. Ford Global Technologies, LLC" on Justia Law

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Skky’s patent describes a method for delivering audio and/or visual files to a wireless device, stating that existing devices required music or video clips to be either factory-installed, or downloaded through a direct Internet interface. The patent allows users to “browse, download, and listen to or watch sound or image files without the need for hand wired plug-in devices or a computer connection to the Internet.” The patent states that “a software system may be integrated with the existing hardware chip of a conventional cellular phone without the need for additional hardware.” In other embodiments, a separate accessory unit attached to the wireless device provides this functionality. On inter partes review, the Patent Board concluded that challenged claims would have been obvious in view of publications entitled “MP3: The Definitive Guide” and “OFDM/FM Frame Synchronization for Mobile Radio Data Communication.” The Board determined that “wireless device means” was not a means-plus-function term. Even assuming that the term was in means-plus-function format, however, the Board rejected Skky’s argument that the term requires multiple processors, wherein one is a specialized processor. The Federal Circuit affirmed, upholding the claim construction and the conclusion that the challenged claims are unpatentable as obvious. View "Skky, Inc. v. MindGeek, S.A.R.L." on Justia Law

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In 2009, RNB and GAF entered into an agreement under which GAF would promote RNB’s “Roof N Box” product, a three-dimensional roofing model, to building construction contractors affiliated with GAF. The agreement required the parties to submit disputes “arising under” the agreement to arbitration. GAF terminated the agreement after about a year. In 2016, RNB, together with its founder and president, Evans, brought suit against GAF based on GAF’s activities in marketing its own product that competes with the Roof N Box. The complaint alleged design patent infringement, trade dress infringement, and unfair competition. GAF moved to dismiss or stay the action pending arbitration. The district court denied that motion. The Federal Circuit affirmed, stating that GAF’s assertion that the arbitration provision covers the claims stated in the complaint is “wholly groundless.” The complaint challenges actions whose wrongfulness is independent of the 2009 agreement’s existence. View "Evans v. Building Materials Corp." on Justia Law

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The 555 patent relates to anti-theft tags that are attached to merchandise and deactivated when the goods are purchased. The accused tags are manufactured in Europe and imported into the U.S. Checkpoint brought an infringement suit. A jury found the patent not infringed, invalid, and unenforceable. The court found the case to be “exceptional” under 35 U.S.C. 285 because Checkpoint’s expert witness based his infringement opinion on an examination of tags that were manufactured by All–Tag in Switzerland, although the accused tags were manufactured in Belgium, and awarded the defendants $6.6 million in attorney fees, costs, and interest. On remand from the Supreme Court, the Federal Circuit instructed the district court "that tests or experiments on the actual accused products are not always necessary to prove infringement.” The district court again found the case exceptional, citing the same ground, and found Checkpoint’s pre-suit investigation, based on a European infringement verdict against All–Tag on a 555 patent counterpart and infringement opinions from counsel, inadequate because the opinions “were given years before filing.” The court cited Checkpoint’s “improper motivation.” The Federal Circuit reversed, noting that the tags tested by the expert were produced on the same machines that were transferred to Belgium. The claim of infringement was reasonable and the litigation was not brought in bad faith or with abusive tactics. View "Checkpoint Systems, Inc. v. All-Tag Security S.A." on Justia Law

Posted in: Legal Ethics, Patents

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Rothschild alleged that ADS’s home security system infringed its 090 patent. Rothschild has filed numerous lawsuits against others alleging infringement of the 090 patent. ADS filed an answer and counterclaims and sent Rothschild an email alleging that the patent covered patent-ineligible subject matter (35 U.S.C. 1011) and that prior art anticipated claim 1 (35 U.S.C. 102(a)(1)). ADS offered to settle if Rothschild paid ADS $43,330 for attorney fees and costs. Rothschild rejected ADS’s offer. ADS moved for judgment on the pleadings, sending Rothschild an FRCP 11(c)(2) Safe Harbor Notice, with copies of a proposed Rule 11(b) motion for sanctions and prior art that purportedly anticipated the claim. Rothschild voluntarily moved to dismiss. ADS opposed and filed a cross-motion for attorney fees, arguing that Rothschild’s suit was objectively unreasonable because Rothschild knew or should have known that claim 1 covers patent-ineligible subject matter and was anticipated. The Federal Circuit reversed the holding that Rothschild had not engaged in conduct sufficient to make the litigation “exceptional” for purposes of section 285 attorney fees. Whether a party avoids or engages in sanctionable conduct under Rule 11(b) is not the appropriate benchmark; a court may award fees in the rare case in which a party’s unreasonable conduct—while not necessarily independently sanctionable—is so exceptional as to justify an award. View "Rothschild Connected Devices Innovations, LLC v. Guardian Protection Services, Inc." on Justia Law

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Plaintiffs sued Nagel in Massachusetts Superior Court alleging 15 state-law claims. Nagel answered the complaint and filed 11 counterclaims under the Declaratory Judgment Act seeking declarations of non-infringement of several patents held by plaintiff Electromagnetics Corporation. Nagel also removed the case to the District of Massachusetts under 28 U.S.C. 1441, the general removal statute, and 28 U.S.C. 1454, the patent removal statute. The federal court remanded to state court, finding that it lacked subject-matter jurisdiction because plaintiffs’ state-law claims did not arise under federal law and Nagel’s patent counterclaims did not present a justiciable case or controversy under Article III. The Federal Circuit dismissed an appeal; 28 U.S.C. 1447(d) bars review of the district court’s decision to remand. To the extent the America Invents Act prefers that closely related state-law claims and patent-law counterclaims be heard together, it does not follow that the circuit courts have jurisdiction to review remand decisions that require such claims to be pursued in separate forums. “Absent a clear statutory command to the contrary, it is assumed that Congress is aware of the universality of th[e] practice of denying appellate review of remand orders when Congress creates a new ground for removal.” View "Preston v. Nagel" on Justia Law

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Kitlinski, employed by the DEA and a Coast Guard reservist, was recalled to active duty. For an extended period, he served full-time at Coast Guard headquarters in Washington, D.C. He filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-35, and an equal employment opportunity complaint against DEA, based on DEA’s responses to his requests to be transferred from DEA’s San Diego office to Arlington, Virginia, where Kitlinski’s wife worked. After a deposition, Kitlinski returned to his car, in a secure DEA parking lot, and discovered a Blackberry device bearing a DEA sticker under his car's hood. He suspected that it was intended to track his location and record his conversations. Kitlinski reported his discovery to the FBI. Kitlinski’s wife was interrogated and was threatened with discipline if she did not turn over the Blackberry. Kitlinski filed an action with the Merit Systems Protection Board, alleging that the placement of the Blackberry and his wife's interview violated USERRA as discrimination and by creating a hostile work environment. He also alleged retaliation and a hostile work environment in retaliation for his exercise of his USERRA rights. The Federal Circuit affirmed the Board’s dismissal of various claims but remanded in part because the Board did not make a finding on Kitlinski’s claim that DEA had created a hostile work environment in retaliation for his USERRA activities. View "Kitlinski v. Merit Systems Protection Board" on Justia Law

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Mid Continent Nail requested that the Department of Commerce initiate a third administrative review of its anti-dumping duty order covering certain steel nails from China. Mid Continent did not serve the request directly on Suntec, a Chinese exporter and producer named in the antidumping order and in the request. When Commerce actually initiated the review about a month after receiving the request, it published a notice in the Federal Register, as provided in 19 U.S.C. 1675(a)(1). Despite that publication, however, Suntec did not participate in the review. Because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results. The Court of International Trade declined to set aside the results of the review as applied to Suntec. The Federal Circuit affirmed, holding that Suntec had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review because the Federal Register notice constituted notice to Suntec as a matter of law and fully enabled Suntec to participate in the review. View "Suntec Industries Co., Ltd. v. United States" on Justia Law