‘What Court Works Best for Us in Atlanta?’

Whether directly representing a party or acting as local counsel, one of the first questions we are often asked as litigators sitting in Atlanta is: “What court works best for us?” Needless to say there are a significant number of issues that must be considered and it is impossible to provide a rote answer. There are, however, a few big-picture considerations that can help drive the final conclusion as to the favored venue. And those considerations are evolving because of a ballot amendment approved in the recent midterm elections. Continue Reading

Key Takeaways From the Midterm Elections: Georgia

Statewide Offices

Republican Brian Kemp declared victory last week in his bid to replace Governor Nathan Deal as Georgia’s 83rd governor. Kemp avoided a runoff against Democrat Stacey Abrams by securing 50.33 percent of the vote amid record-breaking voter turnout of 61 percent for the midterm election. Abrams has not conceded the race. Absentee, provisional, and military ballots are still being counted. Kemp resigned as secretary of state last week to allow an interim appointee to certify the results of the election. Kemp has named campaign manager Tim Fleming chief of staff and former chief of staff David Dove to lead the transition team. Assuming the results stand, Kemp will likely govern Georgia in a similar fashion as Deal, with an emphasis on economic development, job growth, and fiscal conservatism. Continue Reading

Arbitration in 2018: A Global View

In 2018, arbitration has become further embedded in our legal culture while also earning some of the contempt that is said to come with familiarity. The recent Epic Systems Corp. v. Lewis ruling is just the latest in a string of Supreme Court decisions making clear that arbitration agreements are fully and legally enforceable. As a method of resolving domestic business disputes, however, arbitration has a growing number of detractors. For the process to satisfy its domestic users, the parties must give a significant amount of forethought to whether it is a practice that fits their relationship and their disputes.

But when it comes to international disputes, arbitration continues picking up steam. In fact, Georgia is increasingly a place where global parties prefer to host arbitration, as we will discuss later in this blog. Continue Reading

U.S. Supreme Court Opens Door on International Patent Infringement Damages

The U.S. Supreme Court ruled late last week in a case with important implications for international exports and patent law. In WesternGeco LLC v. ION Geophysical Corp., the Supreme Court held that a patent owner can “recover for lost foreign profits” when a defendant “ships components of a patented invention overseas to be assembled there.” This decision reversed a 2015 Federal Circuit decision finding that United States patent law does not extend outside the country and, therefore, a patent owner could not recover profits it would have earned overseas absent defendant’s infringement. Continue Reading

Key Takeaways From Georgia’s Primary Election

Democrats will try to unite around their candidate for governor, Republicans are heading toward a runoff, and eight incumbent lawmakers were defeated after the final results came in for yesterday’s primary election in Georgia. More than 1.1 million Georgians headed to the polls to vote for candidates vying for their party’s nomination for statewide elected constitutional officers, members of Congress, state lawmakers, county commissioners, and regulators.  Continue Reading

New Proposal Would Create Consistent Standard Between USPTO and District Courts for Interpreting Patent Claims

On May 8, the United States Patent and Trademark Office (USPTO) announced a proposed change to how it will handle challenges to patents. In essence, the proposal would result in a consistent claim construction standard between how district courts and the Patent Trial and Appeal Board (PTAB) interpret claims in trial proceedings.  Continue Reading

Qualified Opportunity Zones Open Greater Development Opportunities in Georgia

Much ink has been devoted in recent years to the widening income gap in our country, but as we noted in our January blog, “Rural Development Council Works to Keep Georgia On Your Mind,” geographic disparities since the Great Recession have hit rural and low-income communities in Georgia particularly hard. In yet another proactive move to address this problem, the state has positioned itself to take advantage of the new Qualified Opportunity Zone (QOZ) program under the recent Tax Cuts and Jobs Act.

The QOZ program is structured to promote development in economically distressed communities by providing tax incentives for investors to divert their investment gains – tax-deferred – into funds (a qualified Opportunity Fund) that invest in businesses and property development within a QOZ. Additional tax incentives are available the longer the Opportunity Fund investment is held. Continue Reading

How the U.S. Supreme Court Ruled on Inter Partes Review and What It Means for Future Patent Challenges

The U.S. Supreme Court ruled Tuesday on two closely monitored cases affecting how patents could be challenged. In the more high-profile case, the court upheld the constitutionality of the inter partes review (IPR) process enacted by Congress in the America Invents Act, enabling entities to continue to challenge the validity of issued patents in a forum other than federal court. And in a second case, in a narrow ruling, the court refined how the Patent Trial and Appeal Board (PTAB) rules on challenged claims, requiring an all-or-nothing approach to the analysis. Continue Reading

What Looming Supreme Court Decisions Could Mean for Patent Litigation

The U.S. Supreme Court is poised to rule soon on a case that could fundamentally change how patent litigation plays out in America, as well as a second case that is more of a tweak around the edges.

The potential game-changer is Oil States Energy Services v. Greene’s Energy Group. Its central question is whether Congress set up an unconstitutional method of analyzing the validity of existing patents: the inter partes review process. Continue Reading

Textualism Is the Law of the Land in Georgia: What to Do About It?

As we see it, the most important trend coming from the Georgia Supreme Court in 2017 is the court’s adoption of textualism as the guiding principle of statutory interpretation in Georgia. Because of the growing impact of textualism on litigation, and the potential effect it will have on contracting parties, it is important that you take this trend into account both in the way you operate your business in Georgia and in any formal legal dispute.

We first wrote about the lengthy opinion issued by the Georgia Supreme Court in Lathrop v. Deal in an article for the Daily Report. While notable for its subject matter – holding that the doctrine of sovereign immunity restricted the manner and method in which state laws could be challenged as violating the Georgia Constitution – we opined that the bigger impact of the decision is its forthright embracing of textualism as an interpretative tool. To put it simply, textualism requires the court to apply the plain meaning of the statutory text at the time the statute was originally adopted. In Lathrop, the court clearly adopted this principle as reflected by its analysis of the applicable law’s first draft, written in 1861, and what particular words meant at the time that statute was originally written. Continue Reading