Monthly Archives: November 2015

When Smartphones Go to War, Patent Holders Seeking Injunctions against Infringement Win?

By Michael J. Zoller, Esq.
mzoller@pashmanstein.com

Prior to 2006, when a patent holder demonstrated that someone was infringing on its patent, it enjoyed a presumptive entitlement to an injunctive award permanently enjoining the infringement.  That all changed though when the Supreme Court handed down its decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).  In eBay, the Supreme Court held that instead of a general rule presumption in favor of injunction, the same equitable standard that applied for granting injunctions in non-patent cases should also apply to disputes arising under the Patent Act.  Consequently, following the decision in eBay, in order to obtain a permanent injunction against patent infringement, a patent holder had to pass a four-factor test by showing:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury;

(3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and

(4) that the public interest would not be disserved by a permanent injunction.

Id. at 391.

This change was bad for patent holders because instead of the presumed injunction they used to receive upon a showing of infringement, in addition to proving infringement, the patent holders now had to prove that an injunction was warranted too.

In the wake of the Supreme Court’s eBay decision, the “Smartphone Wars” were launched.  The Smartphone Wars are a series of litigation between Apple and Samsung regarding Samsung’s infringement on some of Apple’s patents for cellphone and tablet technology.  The first decision (“Apple I,” 678 F.3d 1314) in the Wars was handed down in 2012 and the fourth and latest was just handed down in September 2015 (“Apple IV,” 801 F.3d 1352).

In Apple I, the Federal Circuit affirmed the District Court’s holding that to show an irreparable harm, a patent holder must make a showing of a “casual nexus” between the infringement and the alleged harm to the patent holder.  The Apple I decision further stated that “[s]ales lost to an infringing product cannot irreparably harm a patentee if consumers buy that product for reasons other than the patented feature.” Apple I, 678 F.3d  at 1324.  The decision in Apple I was another blew to patent holders.  To be able to obtain an injunction they now had to show that the technology being infringed on was the cause of their sales in the first place.  This can be very difficult to show when the actual item being sold, like a smartphone, contains many different features and pieces of technology.

Recently though, the Federal Circuit’s decision in Apple IV has swung the power back to the patent holders.  In Apple IV, the Federal Circuit took a closer look at the requirements of a casual nexus.  In its review, the Federal Circuit determined that the proper approach for finding a casual nexus was not a determination that the infringing features were the reason for consumers purchasing the smartphone, but rather a determination that the infringing features were important to consumers when making their purchasing decision.  When there are many reasons why a consumer chooses to purchase a particular smartphone, having to show that the features being infringed on are important to consumers versus having to that they are the specific reason the consumer chose the smartphone is a much lower standard to meet.  Consequently, in Apple IV, the Federal Circuit ended up granting Apple its injunction.

The decision in Apple IV is a positive turn for patent holders after their rights had been limited in the earlier litigations.  That said, while patent holders may have won this battle, the war is not yet over.  Samsung has petitioned the Federal Circuit to rehear the case en banc.  Should the Federal Circuit grant the petition and reverse then patent holders may be telling a different story.  As they say, history is written by the victors…

Holiday Parenting Time: Tips to Survive the Holidays During a Divorce

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

The holiday season brings a mixed bag of emotions. Some people find it to be a time when they can slow down the normally hectic pace of everyday life, take a vacation, spend time with family, make great memories and enjoy traditions. Others find the holidays to be a time when stress is at its peak, as the holiday season often brings unwelcome guests, an exhausting list of demands; including shopping, parties, baking, cleaning and entertaining, to name just a few. No matter which camp you may belong to, going through a divorce will probably put a damper on the holiday season.

In New Jersey, when couples with children decide to divorce, one of the first issues which must be addressed is custody of their children, at least on a temporary basis until the divorce is finalized. After the parents agree or the Court makes a determination on custody of the child(ren), parenting time and visitation will also need to be determined. In some cases, parents reach a suitable agreement without having to battle it out in court. However, in other instances, a Judge must determine parenting time.

– See more at: http://www.njfamilylaw4u.com/2015/11/holiday-parenting-time-tips-to-survive-the-holidays-during-a-divorce/#sthash.uUI8Km6k.dpuf

Second Circuit “Likes” the NLRB’s Ruling on Facebook Activity

By Jim Boyan, Esq.
jboyan@pashmanstein.com

A federal appeals court recently affirmed an administrative agency decision that an employer unlawfully discharged two employees for their Facebook activity.    

The Facts

In January 2011, several employees of Triple Play Sports Bar and Grille (“Triple Play”) learned that they owed more than they expected in state income taxes.  On January 31, a former employee posted the following status update on Facebook:  “Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”  One Triple Play employee, Vincent Spinella, “liked” the status update and another, Jillian Sanzone, commented:  “I owe too.  Such an asshole.”  After learning of their comments, Triple Play discharged Spinella and Sanzone for their “disloyal” Facebook activity.

The NLRB’s Decision

Sanzone and Spinella, who were not members of a labor union, filed an unfair labor practice charge with the National Labor Relations Board.  The NLRB ruled that their terminations violated Section 8 (a) of the National Labor Relations Act (“NLRA”).  More specifically, the Board found that the Triple Play unlawfully terminated Sanzone and Spinella for engaging in “protected concerted activity.”

The Second Circuit’s Decision

Triple Play appealed the NLRB’s decision to the Second Circuit Court of Appeals, which covers New York, Connecticut, and Vermont.  The Company argued that Spinella and Sanzone lost the protection of the NLRA because their Facebook activity contained obscenities that were viewed by customers.  Triple Play based this argument on a prior Second Circuit decision, Starbucks, which recognized the “legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers.”  The court rejected the Company’s arguments and affirmed the NLRB’s decision.  The Second Circuit explained that “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers” and concluded that the NLRB’s finding that “the Facebook activity at issue here did not lose protection of the [NLRA] simply because it contained obscenities view by customers accords with the reality of modern-day social media use.”

The Bottom Line

This case is important because it is the first time that a federal appeals court has ruled on the issue of whether social media activity can constitute “protected concerted activity” under the NLRA.   Although the Second Circuit’s decision in this case is “non-precedential” it is still a persuasive authority that could impact the outcome of future cases.  This case demonstrates that employers should exercise caution prior to taking an adverse employment action based on an employee’s social media activity.