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
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
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
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
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
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
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
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
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
Is patent litigation coming home to Georgia? Last year the U.S. Supreme Court holding in TC Heartland v. Kraft Foods Grp. Brands significantly affected the law of venue jurisdiction under 28 U.S.C. § 1400(b) for patent infringement cases. One result was to shift new patent complaint filings away from federal district courts that had been perceived to be plaintiff-friendly, such as the Eastern District of Texas, as I recently wrote in the Daily Report. TC Heartland only clarified one of the tests for patent venue in § 1400(b), holding that the provision “where the defendant resides” is limited to only the district where the defendant is incorporated.
What about the other provision to satisfy venue, the two-part test: (1) “where the defendant has committed acts of infringement” and (2) “has a regular and established place of business”? Both of these clauses must be satisfied for proper venue outside of the defendant’s state of incorporation. Much of the post-TC Heartland case law has focused on the latter clause, including the Federal Circuit’s September 2017 In re Cray opinion, which it limited only to clarifying the “regular and established place of business” phrase. Continue Reading