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Working Draft Distributed to Members of Well-Known Standard Setting Group Was Not a Publication

Working Draft Distributed to Members of Well-Known Standard Setting Group Was Not a Publication

In Samsung Electronics Co., Ltd. v. Infobridge Pte. Ltd., the Court of Appeals for the Federal Circuit (“the CAFC”) addressed the legal standard for assessing the public accessibility of prior art documents before a patent’s critical date. Appeal No. 18-2007 (Fed. Cir. July 12, 2019). This case arises from an appeal by Samsung to decisions by the Patent Trial and Appeal Board (“the Board”) in two inter partes review proceedings which upheld all challenged claims of U.S. Patent 8,917,772 (“the ’772 patent”) owned by Infobridge. In each proceeding, the Board found that Samsung failed to show that a certain prior art reference was publicly accessible before the critical date for the ’772 patent, and thus could not be considered prior art. The CAFC vacated the Board’s decision, holding that that the correct standard for public accessibility is whether a person of ordinary skill in the art could, after exercising reasonable… Continue Reading

Fifth Circuit Affirms QDRO Issued After Participant’s Death

A recent decision from the U.S. Court of Appeals for the Fifth Circuit highlights that a qualified domestic relations order (“QDRO”) can be valid and enforceable even if it is issued after a participant’s death. In Miletello v. RMR Mechanical, Inc., the Fifth Circuit affirmed an award to the former spouse of a deceased 401(k) plan participant, even though (i) the QDRO in favor of the former spouse was not entered into until over a year after the participant’s death, and (ii) the participant was married to a new spouse at the time of his death. Importantly, a divorce settlement executed by the former spouse and the decedent before his death explicitly provided for the award from the 401(k) plan and contemplated that the former spouse would obtain a QDRO to receive the 401(k) plan assets. A copy of the Fifth Circuit’s opinion is available here.

Coordinating Retirement Plan Definition of “Compensation” with Payroll

A frequent, but often times avoidable, operational error for retirement plans is the failure to use the proper definition of “compensation” for various plan purposes, including, without limitation, calculating employee deferrals and employer contributions. A retirement plan’s definition of compensation typically includes dozens of components that all must be properly coded in the plan sponsor’s payroll system as either eligible or ineligible plan compensation. One such component that is frequently misclassified is the value of employee equity awards, such as stock options and restricted stock. Accordingly, plan sponsors should periodically compare the plan’s definition of compensation to the employer’s payroll records to verify that the proper definition of compensation has been used for all relevant plan purposes. Performing such an audit can help identify any errors and minimize the amount of corrective contributions and other fees or expenses that may be associated with correcting the error.

Adding a Real Party in Interest Does Not Necessarily Alter the Petition’s Filing Date

Adding a Real Party in Interest Does Not Necessarily Alter the Petition’s Filing Date

In Mayne Pharma International Pty. Ltd. v. Merck Sharp & Dohme Corp., (Fed. Cir. June 21, 2019), the Federal Circuit affirmed the decision of the Patent Trial and Appeal Board (“Board”) permitting the petitioner to include an additional real party in interest in its mandatory notice without altering the petition’s filing date. Background Merck Sharp & Dohme Corp. (“MSD”) filed a petition for inter partes review against U.S. Patent Number 6,881,745 (“the ’745 patent”) assigned to Mayne Pharma International Pty. Ltd. (“Mayne”). In its Patent Owner’s Preliminary Response, Mayne urged the Board to decline institution because MSD’s parent company, Merck & Co., Inc. (“MCI”), was not identified as a real party in interest. Based on the record at that time, however, the Board was not persuaded and instituted review. Mayne then requested rehearing, arguing that the Board abused its discretion. The Board rejected this argument and maintained the proceeding. During… Continue Reading

Fifth Circuit Defers to Plan Administrator’s Claim Appeal Decision Involving Competing Medical Opinions

In Rittinger v. Health Alliance Life Insurance Company, the U.S. Court of Appeals for the Fifth Circuit, whose jurisdiction includes Texas, analyzed the claims decision-making process of a group health plan administrator that had been granted discretion under the terms of the employer’s group health plan. The court determined that, based on such grant of discretion, the plan administrator’s decision regarding a participant’s benefits claim appeal was entitled to judicial deference, even with respect to the plan administrator’s selection of competing medical providers’ opinions. Background regarding Grant of Discretion under ERISA Under general standards, a court will consider denials of appealed benefits claims under an employer-sponsored employee benefit plan (including a group health plan) that is subject to ERISA on a “de novo” basis, which means that the court will not give any deference to the plan administrator’s prior decision on a benefit claim appeal, but instead can substitute its… Continue Reading

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