By: David R. Gabor

Professor Michael L. Marlow of Cal Poly San Luis Obispo recently published a preview of his paper on cancer rates and Proposition 65 entitled, "Too Much (Questionable) Information?" See Wall Street Journal, page A13, January 21, 2014.

Proposition 65 is the popular name for the California Safe Drinking Water and Toxic Enforcement Act of 1986, codified at California Health & Safety Code section 25249.7, et seq. This now-infamous California voter initiative is why California residents and visitors alike are accosted by signage on physical locations such hotel lobbies and parking garages as well as on certain commercial items such as screwdrivers and soldering paste, threatening that they are exposed to toxic levels of carcinogens or reproductive toxicants by entering the property or using the product.


Continue Reading Proposition 65 – Twenty-Seven Years Later And Still No Observable Effect

By Audrey A. Millemann

            The Federal Circuit has loosened the standard for recovering attorneys’ fees in patent infringement cases, making it easier for winning defendants to obtain their fees from plaintiffs. 

            The case is Kilopass Technology, Inc. v. Sidense Corp. (Fed. Cir. Dec. 26, 2013), 2013 U.S. App. LEXIS 25671. Kilopass and Sidense were competitors in the market for memory cells used in transistors. Kilopass obtained several patents on its technology. After reviewing a published patent application of Sidense for its memory cells, Kilopass embarked on an interesting course of conduct.

            First, Kilopass engaged counsel to determine whether Sidense infringed Kilopass’ patents. Based on the product described in Sidense’s patent application, Kilopass’ counsel believed that there might be an infringement case, and sent Sidense a letter inviting Sidense to license Kilopass’ patents or explain why Sidense’s products did not infringe Kilopass’ patents. Sidense replied with a specific explanation of why its products did not infringe Kilopass’ patents. Sidense also offered to subject its products to a confidential infringement analysis by a third party expert to prove its position. Kilopass then obtained a diagram of Sidense’s product and provided it to Kilopass’ counsel.  Counsel then concluded that Sidense had designed around Kilopass’ patents and that its products probably did not literally infringe the patents. In response, Kilopass retained a second counsel to analyze infringement. The second counsel made a preliminary finding that Sidense’s products probably did not literally infringe the patents, but might infringe under the doctrine of equivalents, and said that further investigation was needed to confirm this. Kilopass did not conduct further investigation with this counsel, but instead engaged a third counsel to analyze infringement. Then, based primarily on Kilopass’ own engineer’s findings, Kilopass concluded that Sidense infringed under the doctrine of equivalents. 

 


Continue Reading Patent Infringement: Attorneys’ Fees A Little Easier to Get

By:David Gabor

On December 30, 2013, the Federal Court of Appeals, in Allergan, Inc. v. Athena Cosmetics, Inc., et al., an as-yet unpublished decision, affirmed a California District Court ruling that has the potential significantly to affect advertising law and the use of the California unfair competition statute at B&P Code §17200, et seq. to regulate commerce. http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1286.Opinion.12-26-2013.1.PDF In that case, the Federal Circuit affirmed that a California unfair competition claim is limited in injunctive effect to California only.

The key facts are as follows. Amgen, the manufacturer of Latisse eyelash thickener, sued Athena for its competing RevitaLash product, by asserting a number of federal patent and California Section 17200 unfair competition claims. The issue was whether RevitaLash could be marketed as a medical product that would grow and lengthen eyelashes.  Amgen sued because its own brand is the only product presently approved by the FDA to grow eyelashes.


Continue Reading The Long Lashes of the Law: The Federal Circuit Rejects Nation-wide Application of An Injunction Based on California Unfair Competition Statutes

By: Dale Campbell & Brittany Shugart

The Federal Civil Rules Advisory Committee (the “Committee”) has proposed numerous rule revisions, several of which are designed to address discovery problems related to electronically-stored information (“ESI”). ESI discovery has become extremely complex and expensive as technology continues to expand into numerous and varying communication devices and data storage. ESI is located not only on the client’s main computer servers but also on each employee’s desktop, smart phone, and tablet device.

The complications of ESI discovery have led to what this writer considers to be a disturbing trend in commercial litigation. Litigation is frequently no longer focused on the facts of the case but, instead, on burdensome discovery fights frequently related to ESI, where one side or the other hopes to win the suit by trapping their opponents in an expensive discovery quagmire, unintentional deletion of historical ESI, or a simple good faith oversight in producing ESI.


Continue Reading PROPOSED RULE CHANGES REGARDING E-DISCOVERY

 By: David Gabor

The FDA defines electronic cigarettes, also known as e-cigarettes, "e-cigs" or "vapes" (as in vapors), as "battery operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine, which is highly addictive, into a vapor that is inhaled by the user." http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm172906.htm.

Selling and advertising e-cigarettes, now more commonly known as "vaping," presents an array of legal issues. It has grown into an industry estimated to be at annualized sales of $2 billion a year — and growing. David Gabor, a member of the advertising group at Weintraub Tobin, has represented several brands of e-cigarettes, and understands the issues it faces in terms of marketing and advertising such products.


Continue Reading What Are You Smoking? Notes on the increase in state and local regulation of e-cigarettes