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2016 Health and Welfare Plan Year-End Action Items

There are a number of health and welfare plan action items to address as 2016 closes and 2017 begins. The election results have created uncertainty in the minds of many regarding whether certain legal obligations will remain in effect (or be enforced). Employers should assume Affordable Care Act (ACA) and other existing obligations will continue unless and until repealed or otherwise affected by subsequent guidance. It is not clear how soon change may occur after the inauguration on January 20, 2017. Based on the promises by both President-Elect Trump and the Republican Party to repeal and/or replace the ACA, we expect that revenue related ACA requirements, such as the employer shared responsibility provisions, are more likely to be affected during 2017 than other ACA requirements like the preventive services mandates that merely impact plan design. Other changes, such as those suggested by the President-Elect in his healthcare position statement or… Continue Reading

Extension of Due Dates for 2016 Individual Statements Under Affordable Care Act Information Reporting

In Notice 2016-70 (the “Notice”), the IRS extended the due date, from January 31, 2017 to March 2, 2017, for employers (including so-called “applicable large employers”), insurers, and other providers of “minimum essential coverage” in 2016 (“Reporting Entities”) to furnish statements to individuals on IRS Forms 1095-B and 1095-C, pursuant to the Affordable Care Act’s information reporting requirements (the “ACA Reporting Requirements”). The Notice also extends the IRS’s transition relief from penalties that Reporting Entities could otherwise incur for incorrect or incomplete information reported on their 2016 information returns. To obtain this relief, a Reporting Entity must show that it made a good faith effort to comply with the ACA Reporting Requirements in furnishing statements to individuals and filing with the IRS. Notably, the Notice does not extend the due date under the ACA Reporting Requirements for Reporting Entities to file their 2016 information returns with the IRS. Accordingly, that… Continue Reading

Retirement Plan Year-End Action Items

The following non-exhaustive list describes year-end action items and the annual notices for retirement plans that generally must be distributed within a reasonable time prior to the start of the plan year. For calendar year plans, providing the notices outlined below by December 1 will meet this requirement in most cases. Safe Harbor 401(k) Notice: For 401(k) plans that are designed to comply with the safe harbor requirements of the Internal Revenue Code. Automatic Enrollment Notice: For any plan that includes automatic enrollment provisions. Qualified Automatic Contribution Arrangement Notice: For plans that are designed to comply with the Internal Revenue Code’s qualified automatic contribution provisions. Eligible Automatic Contribution Arrangement Notice: For plans that are designed to comply with the Internal Revenue Code’s eligible automatic contribution provisions. Qualified Default Investment Alternative (“QDIA”) Notice: For plans with participant-directed investments that include a QDIA in which a participant’s account will be invested if… Continue Reading

Federal Circuit Relies on Claim Construction and Precedent to Find Software Claims Patent Eligible

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., No. 15-1180 (Fed. Cir. Nov. 1, 2016) is the latest in a series of recent decisions in which the U.S. Court of Appeals for the Federal Circuit has reversed a district court’s finding of patent ineligibility under 35 U.S.C. § 101.  In Amdocs, the Federal Circuit addressed the application of the judicially created “abstract idea” exception to patent eligibility under the two-step framework set forth by the U.S. Supreme Court in Alice Corp. v. CLS Bank International 134 S. Ct. 2347 (2014) (following Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)). The district court in Amdocs invalidated the four patents asserted by Plaintiff-Appellant Amdocs (Israel) Ltd. as patent ineligible under § 101 using the two-step Alice/Mayo framework:  US Patent Nos. 7,631,065 (“’065 patent”); 7,412,510 (“’510 patent”); 6,947,984 (“’984 patent”); and 6,836,797 (“’797 patent”).  As discussed by the Federal Circuit, all… Continue Reading

A Reminder To Support Claims That Are Arguably Broader Than Described Embodiments

On August 15, 2016, in an opinion by Judge Moore in ScriptPro LLC. V. Innovation Assocs., Inc. (ScriptPro I), the United States Court of Appeals for the Federal Circuit addressed the issue of how much written description support is needed under 35 U.S.C. § 112(a) (pre-AIA 35 U.S.C. § 112, first paragraph) for patent claims that are broader than the primary embodiments disclosed in the specification.[1]  More specifically, the holding of ScriptPro I reinforces the importance of describing multiple embodiments within the specification, and alternatively including some broadening language within the specification to help defend broad claims against allegations that the specification lacks written description support.[2] Background In 2006, ScriptPro sued Innovation Associates, Inc. (“Innovation Associates”) for infringement of U.S. Patent No. 6,910,601 (“the ’601 patent”).  The ’601 patent describes a collating unit used to store prescription containers after medication has been dispensed into the prescription containers by an automatic dispensing system (“ADS”).[3] … Continue Reading

The Federal Circuit Analyzes the Disavowal Exception to the General Claim Construction Rule

On October 14, 2016, in Poly-America, L.P. v. API Industries (Appeal No. 16-1200, Fed. Cir. October 14, 2016), the Court of Appeals for the Federal Circuit (“the CAFC”) analyzed and applied one of two exceptions to the general claim construction rule that claim terms are generally given their ordinary and customary meaning.  Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).  This one exception states that the plain and ordinary meaning standard [of claim construction] is departed from when the patentee disavows the full scope of the claim term in the specification or during prosecution. Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014). The question before the CAFC in Poly-America was whether any of the terminology in the asserted patent, or any of patentee’s actions during its prosecution, could be interpreted as a disavowal of claim scope.  In answering this question,… Continue Reading

Reminder: Transitional Reinsurance Program Submission Due November 15

The 2016 enrollment count submission under the Transitional Reinsurance Program is due November 15, 2016. The submission may be completed via www.pay.gov. The U.S. Department of Health and Human Services offers the option to pay the 2016 reinsurance contribution in one payment due by January 17, 2017, or two payments due by January 17, 2017 and November 15, 2017.

Federal Circuit Questions Use Of Common Sense in Obviousness Rejections

Is common sense good enough to make up for deficiencies of a cited reference in an obviousness analysis?  In Arendi S.A.R.L. v. Apple Inc., the Federal Circuit said “no,” by reversing a decision of the Patent Trial and Appeal Board (“PTAB”) to invalidate U.S. Patent No. 7,917,843 (the “Arendi patent”). When Arendi S.A.R.L., a Luxembourg company, brought patent infringement suits against several technology heavyweights, including Apple, Inc., Google, Inc., and Motorola Mobility LLC, these defendant companies struck back by filing a petition for an Inter Partes Review (“IPR”) seeking to invalidate the Arendi patent.  In the IPR proceeding, the PTAB invalidated the Arendi patent on the grounds of obviousness under 35 U.S.C. §103.  Arendi then appealed the case to the U.S. Court of Appeal for the Federal Circuit. The Arendi patent is directed to computer functions that allow a user to remain in a document displayed by a first computer… Continue Reading

The Federal Circuit Muddies The 101 Waters After BASCOM

On September 30, 2016, in Intellectual Ventures I LLC, v. Symantec Corp., No. 15-1769, 15-1770, 15-1771, the Court of Appeals for the Federal Circuit (CAFC) overturned a lower court’s finding of patent eligibility under 35 U.S.C. § 101 for a patent directed to using computer virus screening in a telephone network, while affirming the lower court’s finding of patent ineligibility under 35 U.S.C. § 101 for two other patents directed to methods of screening emails and other data files for unwanted content, and methods of routing e-mail messages based on specified rules.    The court analyzed each of the patents at issue separately using the Mayo/Alice two-part test for determining patent eligibility under 35 U.S.C. § 101, coming to the same conclusion each time. First, the court addressed U.S. Patent No.  6,460,050 (“the ‘050 patent”), which was held patent ineligible by the lower court.  The ‘050 patent is directed to filtering e-mails that have unwanted content by… Continue Reading

The Few, The Proud, The Patent-Eligible Software Claims

It is no secret that it is difficult for software technology patent claims to be deemed subject matter eligible under 35 U.S.C. § 101 on appeal, as only a handful of cases involving software technology have passed § 101 scrutiny by the Federal Circuit since the Supreme Court’s decision in Alice v. CLS Bank[1]: Until recently, there have been only three such cases: DDR Holdings, LLC v. Hotels.com, L.P.,[2] Enfish LLC v. Microsoft Corp.,[3] and BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC.[4] However, now a fourth case may be added to those ranks. On September 13, 2016, the Federal Circuit decided McRO, Inc. v. Bandai Namco Games America Inc.,[5] ruling that claims directed to automating part of a preexisting 3-D animation method were patent-eligible under § 101. Below is a review of the McRO case facts, the legal reasoning of the Federal Circuit in reaching its conclusion, and… Continue Reading

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