David Gabor is a shareholder at Weintraub Tobin. He is a trial lawyer and represents production companies, infomercial companies, direct response companies and multi-level marketing organizations asto both operational and compliance matters. In particular, David is focused on advertising and compliance issues, including FTC counseling and litigation, class actions, and multi-agency governmental compliance involving the marketing and sale (over multiple media platforms) of various products including educational and health-related products.

Thomas Jefferson once famously warned that, “The natural progress of things is for liberty to yield and government to gain ground.” In the current political climate, this certainly seems to be the case. Businesses are being encroached by increasing regulatory scrutiny of what they can and cannot do. This manifests itself most readily in consumer protection laws and proposed regulations that affect, among other things, the way products need to be advertised and disclaimed.

As anyone who read Upton Sinclair’s The Jungle in grade school can readily attest, some regulation is necessary as a reasonable check on unfettered commercial forces and the often unfortunate “race to the bottom” in terms of public health and safety. This article does not mean to suggest that all regulation is inherently wrong.

However, as anyone who runs a business today, particularly in California, is acutely aware, the tendency of government regulators to regulate in what is already seen as a “nanny state,” is increasing. To a certain degree, this is only logical: if a regulator’s job is to regulate, the regulator will aggressively seek to enlarge her portfolio by offering ever increasing and ever more detailed regulations. It’s a matter of self-created job security.
Continue Reading Regulation Creep In The Nanny State:The Proposed Not-So-Safe-Harbor Enactment In Proposition 65 Advertising Regulations

By Audrey Millemann

In Tokyo Keiso Company, v. SMC Corporation, 2009 WL 59769 (Fed. Cir. 2009)the Federal Circuit has again relied on the Supreme Court’s decision in KSR in invalidating a patent for obviousness.

The plaintiff, Tokyo Keiso, is the owner of a patent that covers a volume flow meter that measures the volume of a fluid flowing through a pipe or measuring line. The patent describes the prior art devices as having two measuring heads, one on each end of the measuring line, and using an acoustic signal transmitted through the metal measuring line. The problem with the prior art devices was that the sound travelled faster through the metal than through the fluid, resulting in inaccurate measurements. The invention in Tokyo Keiso’s patent used a measuring line made of plastic, instead of metal, which caused the acoustic signal to travel more slowly through the plastic than the fluid and made the flow meter more accurate. 

Continue Reading Federal Circuit Relies on KSR (Again)

By Scott Hervey

As 2005 comes to a close, it is time for companies to make resolutions regarding their intellectual property. These resolutions apply both to companies that have never taken serious steps to protect intellectual property, and those companies that have an understanding of the value of intellectual property and take active steps to secure and protect these assets. Just like resolutions to lose weight and stop smoking, these resolutions may be tough to stick with, but if a company does stick with these resolutions it will be a healthier and more robust company.
Continue Reading IP Resolutions for 2006

By Julie Garcia

#160 #160#160 #160#160 #160#160 #160The path from original idea to market launch of a product can be a long and arduous road. There are many hurdles that must overcome prior to the launch and distribution of a product. The path usually begins in the mind of a few creative individuals or a

By Audrey Millemann

#160 #160#160 #160#160 #160#160 #160A recent decision by the Federal Circuit Court of Appeals is a victory for Microsoft Corporation and clarifies an issue of invalidating prior art.

#160 #160#160 #160#160 #160#160 #160In Eolas Technologies Inc. v. Microsoft Corporation (Fed.Cir. March 2, 2005), the University of California and its exclusive