In an opinion issued on June 5, 2023, the Federal Circuit provided a useful framework for overcoming obviousness rejections during patent prosecution, where a proposed modification to a prior art reference renders it unsatisfactory for its intended purpose.[1] Appropriately applying this framework may provide a strong position against a motivation to combine references, or otherwise modify a prior art device in an obviousness rejection. In Medtronic, Inc. v. Teleflex Innovations S.A.R.L ...
What do a squeak toy, whiskey, and dog poop have in common? If you are silently thinking to yourself “absolutely nothing,” it may surprise you to hear that the U.S. Supreme Court has spent months considering this question. On June 8, 2023, in a long-awaited win for trademark owners, SCOTUS ruled that a lower court erred when it issued a decision finding that a dog toy that parodies a famous liquor bottle, was covered by First Amendment free speech protections ...
The top attorney for the National Labor Relations Board (NLRB) recently declared that most non-compete agreements violate labor laws by barring workers from opportunities to seek new jobs. The May 30, 2023 memo from NLRB General Counsel Jennifer Abruzzo is the latest to address the issue of non-competes. The Federal Trade Commission (FTC) issued a proposed ruling earlier this year to ban them completely. Urging the NLRB to adopt the standard she first argued in Stericycle, Inc ...
On May 31, 2023, the Centers for Medicare & Medicaid Services (“CMS”) released a Final Rule (the “Final Rule”) that withdraws the mandatory vaccination requirement for employees of CMS-certified healthcare facilities, which includes hospitals, critical access hospitals, long term care facilities, home health agencies, hospices, and ambulatory surgical centers ...
In May, the Supreme Court of the United States handed down its decision in Amgen Inc. v. Sanofi, which addressed the statutory enablement requirement for patents. The decision is consistent with ongoing efforts to strike a balance between innovation and competition, while preventing the extension of monopolies beyond the invention disclosure ...
On June 1, 2023, the United States Supreme Court issued an important decision addressing the intent element of the False Claims Act (“FCA”) in United States ex rel. Tracy Schutte v. SuperValu Inc. and United States ex rel. Thomas Proctor v. Safeway, Inc. The FCA imposes liability on anyone who “knowingly” submits a false claim to the federal government and defines “knowingly” to include actual knowledge, deliberate ignorance, or recklessness ...
On May 16, 2023, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced a $350,000 settlement with MedEvolve, Inc., a practice and revenue cycle management and practice analytics software services company, to resolve alleged violations of the Health Insurance Portability and Accountability Act (“HIPAA”) regulations ...
In a welcomed change to a class certification process that has long favored plaintiffs, the Sixth Circuit’s May 19, 2023 decision in Clark/Holder v. A&L Homecare and Training Center, LLC adopts a new standard for certifying Fair Labor Standards Act collective actions. In doing so, the Sixth Circuit becomes just the second appeals court to reject district courts’ use of the common two-step procedure for collective action certification ...
The end of the COVID-19 public health emergency on May 11, 2023 has left many healthcare facilities confused about whether the vaccination mandate for Centers of Medicare and Medicaid Services (“CMS”) certified healthcare facilities still stands ...
Brian O'Shaughnessy is an intellectual property partner at Dinsmore and board chair of the Bayh-Dole Coalition. He wrote this article for InsideSources.com. The American inventor is under attack, and it’s coming from our government ...
The SEC Division of Examinations (“Examinations”) issued a Risk Alert on April 26, 2023 to highlight the importance of establishing written policies and procedures for safeguarding customer records and information at branch offices. Examinations provides that a branch office includes any location other than a firm’s main office, including offices of any independent contractors through which a firm may offer investment products and services ...
Ohio lawmakers are considering a bill – House Bill 89 – that would bar medical, nursing, and other medical-professional students from performing pelvic, prostate, or rectal exams on anesthetized or otherwise unconscious patients without prior approval.[1] Intimate exams are used in clinical rotations as an opportunity for training, but opposition to the practice involving unconscious and uninformed patients has grown in recent years ...
Following the passage of House Bill 122 last year, the State Medical Board of Ohio (“Ohio Board”) has released final administrative rules governing the provision of telehealth services by Ohio physicians and certain other provider types.[i] The final rules, which became effective February 28, 2023, continue the recent trend of regulators, such as the Drug Enforcement Agency,[ii] largely reverting back to pre-pandemic telehealth restrictions ...
Prejudgment interest may not come to mind when drafting a settlement agreement. But it can become a crucial issue if one settling party later sues another for misrepresentation related to the agreement and the parties disagree over which state’s prejudgment interest rules apply. States vary widely in the amount of prejudgment interest available. In some cases—as in Conway v. Planet Fitness Holdings, LLC, 101 Mass. App. Ct ...
Private companies doing business with the federal government won a major COVID-19-related victory recently when the Sixth Circuit held in Ciraci v. J.M. Smucker’s Co.[1] that government contractors are not subject to constitutional limitations merely because they follow federal requirements for contracting. The Sixth Circuit—covering Michigan, Ohio, Kentucky, and Tennessee—rejected a claim by former employees of the J.M ...
The U.S. Department of Health and Human Service’s Office of Civil Rights (“OCR”) has announced that several notifications of enforcement discretion issued during the COVID-19 public health emergency (“PHE”) will expire concurrently with the expiration of the PHE on May 11, 2023 at 11:59 PM ...
Ohio legislators are once again attempting to transform the state’s medical marijuana control program after a similar effort stalled out last year. Proponents of the proposed legislation, Senate Bill 9, seek to expand medical marijuana access to Ohioans and revamp the structure of the current program. The proposal would establish the Division of Marijuana Control (“DMC”) under the Department of Commerce ...
On April 7, 2023, two federal judges in Texas and Washington State issued dueling opinions about the abortion medication Mifepristone, just hours apart. These two decisions come in the midst of growing tension about abortion laws in the United States after the Dobbs v. Jackson Women’s Health Organization decision released by the Supreme Court in 2022.[i] The Texas and Washington court opinions do not help reduce the confusion among healthcare providers and residents of the United States ...
On March 31, 2023, Governor Andy Beshear signed Senate Bill 47 making medical marijuana use and sale legal in Kentucky, effective January 1, 2025. [i] Kentucky now joins at least 37 other states that have legalized medical marijuana. The newest piece of legislation comes on the heels of Governor Beshear signing two executive orders related to cannabis in November of 2022 ...
On March 22, 2023, the Centers for Medicare & Medicaid Services (“CMS”) updated its guidance and survey process for home dialysis services in nursing homes.[1] The updated guidance is based on comments, questions, and feedback received from state survey agencies, the dialysis community and other stakeholders since CMS initially issued guidance in 2018 ...
Borrowers who go through the process of obtaining an FHA-insured multifamily loan generally come to the same conclusion: the juice is worth the squeeze. At the end of the day, they get to enjoy a unique blend of benefits (35 or 40-year mortgage term, below market interest rate, etc.) that simply can’t be replicated with a conventional loan. One FHA benefit that’s been getting a lot of attention lately is loan assumption ...
On March 21, 2023, the Supreme Court of the United States heard oral argument in Abitron Austria GmbH, et al. (“Abitron et al.”) v. Hetronic International, Inc. (“Hetronic”)[i] on an issue it has not squarely addressed in seven decades: the extraterritorial reach of the Lanham Act, the comprehensive trademark statute in the United States ...
The SEC Division of Examinations (the “Division”) issued a Risk Alert on March 27, 2023 detailing observations from examinations of newly-registered investment advisers. The Risk Alert provides information about the typical focus areas reviewed during examinations of newly-registered investment advisers. It also provides observations regarding compliance policies and procedures, disclosures and marketing practices ...
On March 10, 2023, Silicon Valley Bank and Signature Bank were closed by their respective jurisdictions’ financial service agencies due to a high influx of depositors making massive withdrawals in the week prior. The Federal Deposit Insurance Corporation (the "FDIC") – an independent federal agency created by Congress to support the broader banking industry – was formally appointed by state government agencies as a receiver for both banks ...
Consider this scenario: you worked hard for many years and spent thousands of dollars building your brand. You even took the proper precautions and registered your trademark with the U.S. Trademark Office. Thanks to all that effort, when consumers see or hear your brand’s name, they instantly think of your goods and services. Now, imagine someone starts selling a digital representation of a comparable product using a similar “artistic” name in the metaverse ...
