Displaying 7 category results for May 2009.x

Ater Wynne launches Family-Owned Business Blog

By Lori Irish Bauman
May 29, 2009

Members of Ater Wynne LLP's Family-Owned Business Practice Group announce a new blog for stakeholders of family-owned businesses and their advisors.

Read more about the Family-Owned Business Blog here.

Patent defense: properly document your inventive activities

By Rick Boyd
May 21, 2009

The United States remains nearly unique in the world in following a ‘first to invent’ rule. An inventor can obtain priority over all ostensible prior art by proving an earlier date of invention, as well as diligent reduction to practice.  Elsewhere, priority of invention is given to the first to file; it is quite literally a race to the patent office.

At Ater Wynne, we emphasize the importance of inventors diligently keeping signed, dated, and independently witnessed records of their inventive activities.  The requirements are few and simple, but not just any written record will suffice.  In an opinion issued last week, the Court of Appeals for the Federal Circuit highlighted this critical discipline.

In The Proctor and Gamble Company v. Teva Pharmaceuticals USA, Inc., P&G sought to prove the date of invention of risedronate - the active ingredient of P&G’s osteoporosis drug Actonel®.  P&G offered into evidence an inventor’s notebook that appeared to document the invention of risedronate. Although signed and dated by the inventor, the pages containing critical entries were neither signed by independent witnesses, nor corroborated by other evidence.

The court refused to accept the self-vouching notebook as sufficient evidence of earlier invention, emphasizing that the inventor “must provide independent corroborating evidence in addition to his own statements and documents.”

Patent attorneys zealously go to bat for their clients.  They can do no less.  But for proving the all-important date of invention, no high-powered legal arguments can match the effectiveness of a stained and dog-eared, but diligently and properly kept inventor’s notebook.

U.S. Supreme Court increases pleading burden for plaintiffs

By Lori Irish Bauman
May 19, 2009

Memo to plaintiffs in federal court:  You'll have to plead facts to support your claim in order to survive a motion to dismiss.  A complaint reciting the elements of a claim and amounting to a series of legal conclusions is no longer adequate.  Earlier this week, the U.S. Supreme Court held in Ashcroft v. Iqbal that Federal Rule of Civil Procedure 8, requiring a "short and plain statement of the claim," "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Instead, legal conclusions must be supported by facts that are plausible - meaning facts that allow the court to draw the reasonable inference that defendant is liable.

While Iqbal garners media attention for addressing immunity from claims of unlawful detention of Muslims after the 9/11 attacks, its interpretation of federal pleading rules will have an impact on all civil litigants for years to come.

Iqbal follows the 2007 U.S. Supreme Court case of Bell Atlantic Corp. v. Twombly, which first stated the more stringent pleading rules.  Twombly was an antitrust case, and at the time it was unclear whether the heightened pleading requirements applied only to antitrust plaintiffs.  Justice Kennedy, writing for the majority in Iqbal, states that Twombly was not so limited, and applies to all civil complaints in federal court.

Non-Indian subject to tribal jurisdiction, says Ninth Circuit

By Rob Roy Smith
May 15, 2009

On May 14, 2009, a Ninth Circuit Court of Appeals panel in Elliott v. White Mountain Apache Tribe reaffirmed that non-Indian litigants must exhaust available Indian tribal court remedies before pursuing an action in Federal court to challenge the Tribe's jurisdiction.  

In so holding, the Ninth Circuit concluded that the Tribe had "plausible" jurisdiction to enforce against a non-Indian tribal regulations that prohibit, among other things, trespassing onto tribal lands, setting a fire without a permit on tribal lands, and destroying natural resources on tribal lands.  The Court placed particular importance on the fact that the Tribe was the landowner and suggested that the Tribe had jurisdiction because the non-Indian's actions (setting a fire that destroyed millions of dollars' worth of natural resources) affected the Tribe's political and economic well-being. 

The decison is an important reminder that Indian tribes retain jurisdiction to enforce Tribal laws on Tribal lands, and that non-Indians must defend actions brought against them in Tribal Court. 

Oregon Supreme Court adopts a new approach to statutory interpretation

By Matt Hedberg
May 5, 2009

The Oregon Supreme Court issued an opinion last week that refines the judiciary's approach to interpreting statutes.  Oregon courts may now consider a statute's legislative history, even where its text and context are unambiguous.

In State v. Gaines, the Court concluded that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute continues to place the most significance on a statute's text and context.  However, application of the State v. Gaines methodology will no longer require an ambiguity in the text of a statute as a necessary predicate to consideration of pertinent legislative history.  Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text.  The extent of the court's consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.  Finally, if the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.

This opinion moves the courts away from the methodology adopted in 1993 in PGE v. BOLI, which barred consideration of legislative history absent an ambiguity in the statutory text and context.

Snoqualmie Tribe members win banishment case in federal court

By Rob Roy Smith
May 2, 2009

In a legal first, tribal members have been victorious in Federal court challenging a tribal banishment action.  Rob Roy Smith and Steven Kennedy of Ater Wynne represented the tribal members, all of whom were one-time elected members of the Snoqualmie Tribe's government.

On April 30, 2009, the U.S. District Court for the Western District of Washington granted the Petition for a Writ of Habeas Corpus filed by nine Snoqualmie Tribal members challenging a banishment imposed by the government of the Snoqualmie Tribe last year.  The Court held that the Tribe's government violated the Petitioners' due process rights under the Indian Civil Rights Act and vacated the banishment.  As a result, the Petitioners' membership in the Tribe, as well as their benefits, are restored.  The Court also imposed a time restriction on a pre-existing social banishment that prevented the Petitioners from coming onto tribal land and attending tribal events.  The Court reduced the open-ended social banishment to 90 days, further vindicating and protecting the tribal members' Indian civil rights. 

The decision comes after the first trial held in federal court under the 1968 Indian Civil Rights Act seeking relief from a tribal banishment action.  This is the first federal court decision to overturn a banishment after trial upon a finding of a denial of due process.  Tribal banishments and disenrollments have been increasing in frequency in recent years.  The decision could have profound effects on the way tribal governments treat their tribal members, pointing the way to greater respect for Indian Civil Rights.

Washington State expands domestic partnership law

By Kathy Feldman
May 1, 2009

On April 23, 2009, SB 5688, an expanded version of the original State Registered Domestic Partnership (SRDP) Act. was delivered to Governor Christine Gregoire, who is expected to sign it into law.  The new law expands on previous domestic partnership laws providing same-sex domestic partners all the rights and benefits that Washington state offers married couples.  To be registered as partners, couples must share a home, must not be married or in a domestic relationship with someone else, and be at least 18 years of age.  Unmarried hetersexual senior couples also are eligible for domestic partnerships if one partner is at least 62.  Lawmakers stated that provision is necessary to help seniors who are at risk of losing pension rights and social security benefits if they remarry.

Among the rights and benefits provided by the law are:

  • the right to use sick leave to care for a domestic partner;
  • the right to wages and benefits when a domestic partner is injured, and to claim unpaid wages upon the death of a domestic partner;
  • the right to unemployment and disability insurance benefits;
  • the right to worker's compensation coverage;
  • insurance rights, including rights under group policies, policy rights after the death of a domestic partner, conversion rights, and continuing coverage rights;
  • rights related to adoption, child custody, and child support; and
  • business succession rights.

Employers need to continue to pay attention to the domestic partnership law so that their policies are implemented in a nondiscriminatory manner.  For example, a domestic partner will now have the right to use sick leave to care for an ill partner.  The law does not, however, supersede federal law, which does not recognize domestic partnerships.