Understand Your Rights. Solve Your Legal Problems
Under the terms of the agreement, Plaid has agreed to pay out $58 million and to make changes to its business practices and policies. The settlement encompasses five class-action lawsuits combined as one. Each suit claims that Plaid used consumers’ banking login credentials to gather and distribute detailed financial data without the prior consent of the consumers.
Approximately 98 million people are affected by the settlement. In these types of settlements, it is usually unlikely that all involved make a claim. However, in this case, the affected users of Plaid will be given the option to receive the settlement money automatically through payment platforms such as PayPal and Venmo, potentially leading to more claims than might otherwise be seen. Although the fee of $58 million may sound substantial, if all 98 million people were to file a claim, each would receive just 60 cents.
Lawyer Monthly is partnering with the 35th IP Law summit taking place this September in Las Vegas, USA and event organisers have just announced the latest invitee and guest speaker.
The IP Law Summit and it's organisers Marcus Evans are glad to announce that Michael Bishop, the General Counsel at AT&T IP Corporation in Atlanta, Georgia, will join the 35th IP LAW Summit as the Chairperson and will discuss how IP Counsels need to get prepared for the future of the IP Law Industry.
The 35th IP LAW Summit will run LIVE from 26 - 28 September 2021 at a premium location, the Cosmopolitan Las Vegas, NV, USA. The summit will bring leading IP executives and innovative suppliers and solution providers physically together to discuss the key strategies for managing IP issues, forge new relationships and generate new business opportunities with a distinguished group of IP Companies.
The summit’s primary focus is to provide a platform that helps leading companies, evaluate and partner with relevant suppliers and solution providers. The Summit effectively unites experts in an exclusive networking environment providing the opportunity to pre-schedule one-to-one business meetings with key leading and forward-thinking executives.
Speakers include executives from Wells Fargo, Seagate Technology, ABRO Industries and Google.
Michael suggests that the IP industry has been impacted from the pandemic of Covid-19 and IP lawyers should be preparing for what is next to fulfil the challenging task of protecting new inventions and encouraging innovation.
Join Michael in this session, where a panel of experts will discuss cutting edge aspects to IP and what the future will bring for the IP law industry, delving into:
Michael formerly served as Chief IP Counsel for BellSouth Corporation and practiced law at King & Spalding, in Atlanta. He received his juris doctor in 1990 from the George Washington University Law School, Washington, D.C., and is a graduate of the University of Florida, with a B.A., History, magna cum laude. Michael also attended graduate school in history at the University of York, U.K.
Additionally, Michael has been extremely active in professional and community activities. He is a past president of the Atlanta IP Inn of Court, a member of the Board of Visitors of the Savannah College of Art & Design, serves on the Board of Trustees of the Hambidge Center for Creative Arts & Sciences, and is a member of the Board of Directors of the Georgia Campaign for Adolescent Power & Potential.
Find more information about the marcus evans IP LAW Summit via https://bit.ly/3iiYrMT or you can contact Isidora Avraam at isidoraa@marcusevanscy.com.
As the Delta variant of the covid-19 virus causes infection rates to increase globally, some big businesses, such as Norwegian Cruise Line, have responded by establishing vaccination requirements. This has prompted legal challenges from civil libertarians and vaccine sceptics.
Norwegian plans to make its first departure in many months on August 15 from Miami. However, its requirement for all passengers to provide proof of their vaccine status, with plans to turn away anyone who refuses to prove their vaccine status, will go against Florida’s law. Florida has forbidden any businesses, government entities and schools from requiring proof of vaccine status in exchange for a service, with exceptions for the healthcare sector. The state’s ban on “vaccine passports” came into effect on July 1. For each violation of the ban, Norwegian will face a fine of up to $5,000.
In court papers, the American cruise company said that enforcing Florida’s law would have a devastating impact on its employees, passengers, and suppliers as it would have no choice but to cancel the cruise. Norwegian has vouched to the Centers for Disease Control and Prevention that it would confirm at least 95% of passengers had been vaccinated against covid-19.
Oatly, which is the world’s largest oat milk company, has been defeated at the High Court by Glebe Farm Foods based in Huntingdon, Cambridgeshire. Oatly had accused the family-run business of taking unfair advantage of its trademarks with a gluten-free plant drink called PureOaty. The multi-million-pound brand claimed that the drink’s name, as well as its packaging, infringed five of their brand’s trademarks. Oatly also accused Glebe Farm of “passing off” their products as Oatly’s.
However, a High Court judge ruled in favour of Glebe Farm, stating that he did not see any risk of injury to the distinctive character of Oatly’s brand. The judge said that there were some similarities between PureOaty’s initial packaging and Oatly’s packaging, such as the use of an irregular font for the product name and the use of the colour blue. Nonetheless, the judge said that these similarities were at a very general level.
Glebe Farm Foods, run by brother and sister team Philip and Rebecca Rayner, said the ruling was gratifying.
The lawsuit, which was filed on Wednesday in the US state of Massachusetts, claims that the companies knew they were contributing to illegal arms trafficking in Mexico, which has resulted in many deaths. The Mexican government is seeking up to $10 billion in compensation.
Mexico has strict regulations on the sale of weapons. Guns can only be legally bought at one shop in the entire country, which is located on an army base in the capital. Consequently, anyone wanting to purchase a gun will often turn to the United States. The Mexican government has said that criminal organisations purchase thousands of pistols, rifles, and assault weapons in US supermarkets, at arms fairs, and even online. In 2019 alone, over 17,000 murders committed in Mexico were traced back to trafficked weapons.
None of the gun manufacturers involved have yet commented on the situation.
Out of the 72 trainees qualifying this coming September, 63 have signed permanent deals with Pinsent Masons and will be taking on newly qualified associate roles within the firm.
22 of the newly qualified associates will begin their careers in contentious practice areas such as litigation, intellectual property, TMT and contentious tax. A further 20 are set to join the firm’s finance and projects group, with another, with 14 going into various transaction teams, and 7 newly qualified associates joining Pinsent Masons’ property department.
The newly qualified associates will join various offices up and down the United Kingdom. 24 will join the firm’s London office, whilst 8 will join the Manchester office. The firm’s Birmingham office will gain 7 newly qualified associates, Leeds and Glasgow will each receive 6, Edinburgh will receive 5, Aberdeen will receive 4, with the remaining 3 NQ associates bound for the firm’s Belfast office.
The firm’s first intake will begin in early 2022 and is set to include five roles across its network. Two roles will be based in London, two in Australia, and one in Asia. The programme will last 18 months in total, providing graduates with the opportunity to gain varied experience through rotation in several specialist areas, including Legal Automation and Technology, Pricing, Legal Project Management and Process Design. At the end of the scheme, graduates will be given the opportunity to complete a three-month secondment with either a client or another team, before they move into a full-time position in the Legal Operations function.
Herbert Smith Freehills established its global Legal Operations function back in 2018, with the purpose of helping clients in areas including using new technologies to develop collaborative working and applying innovative methods to solving issues. The firm’s global Legal Operations function works alongside its Alternative Legal Services team to advance holistic solutions that provide clients with more value and operational efficiencies.
The launch of the new graduate scheme sees Herbert Smith Freehills join a growing assembly of law firms that are establishing training schemes in non-traditional areas of the legal sector.
David Hole, Associate at EIP, explores the construction of technical terms.
It is said that ‘if it walks like a duck, and quacks like a duck, then it probably is a duck’. However, if a claim refers to ‘a duck’ feature, what does that imply about how the claimed feature walks or quacks?
In two cases involving the same parties relating to patents said to be essential to 3GPP standards, the claims defined features using terms that already had some technical connotations. The judge was required to determine the extent to which those technical connotations affected the scope of the claims.
A claim term can be a ‘term of art’ if it has a special (and unambiguous) meaning, in the relevant field, at the priority date[1]. However, there is often disagreement about the meaning of a term (e.g. [2], [3]) in which case purposive (‘normal’) construction must be carried out to determine the scope of the claim.
In the first case [4], the claim referred to:
"transferring....information....based on pilot symbols".
At issue were the limitations implied by the use of the term ‘pilot symbols’. Pilot symbols were known to have certain properties which made them particularly useful for certain functions. One of these functions was to allow a receiver to determine a channel quality.
The defendants argued that ‘pilot symbols’:
"must be understood as referring to something which is used for not only [transferring information] but also for its conventional purpose of channel quality determination".
This reasoning was based on the manner in which the patent described the invention and contrasted it with known ways in which pilot symbols were used. For example, the patent noted that in the prior art, pilot symbols ‘are transferred for the only purpose of channel conditions determination’. A benefit of the invention was said to be that “as the signals representative of pilot symbol patterns convey another information, the resources of the telecommunication network are used efficiently.”
On this, the judge concluded that the skilled person would understand that while the pilot symbols must be capable of being used for channel quality determination, it was not necessary that they are in fact used for this purpose. If such a limitation were to exist, “the skilled person would expect the claims to have said so”. On this construction, a prior art message which was not suitable for channel quality determination did not fall within the scope of the claim.
The judge found the patent essential to a communications standard in which pilot symbols were used, but not for channel quality determination.
In the second case [5], the claim referred to:
"a length indicator for indicating [purpose 1]"
‘purpose 1’ did not relate to indicating a length, and there was no explicit requirement in the claim that the ‘length indicator’ had to be able to indicate a length.
As in the first case, the invention centred on the use of a known feature (in this case, a ‘length indicator’) for a further or different purpose.
In the prior art (acknowledged in the patent)was an indicator which could be used for a purpose very similar to ‘purpose 1’, but could not indicate length.
The judge considered that the term ‘length indicator’ was used specifically to exclude this prior art, because the patentee could have omitted the word ‘length’ otherwise:
136. ...This helps to show that the term 'length indicator' was used in claim 1 as granted to exclude the [prior art indicator], there being no other words in the claim which could perform that role. ...
137. ...Accordingly, I find that to fall within the term 'length indicator' in the Patent, the field in question must be capable of [indicating length], even if certain values are capable of being used to [perform purpose 1]. If the field in question is not so capable, then in my judgement, it is not a 'length indicator'.
This construction meant that the alleged infringement (which did not perform the function of a length indicator) fell outside of the scope of the claim, on normal construction.
The judge also found no infringement under the doctrine of equivalents. Applying similar reasoning to the third Actavis question [6],he held that the patentee intended strict compliance with the claim scope in order to avoid the prior art: “Otherwise the claim would be invalid”.
These cases give useful insight into how the scope of a claim may depend on how the invention is framed in the specification.
When claims are drafted using existing technical terms, it is important to consider characteristics that may be understood by the skilled person as implicit in such terms, and how these terms are used in the specification (see also [7]). Unless, of course, your invention always walks and quacks like a duck!
This article was originally published on EIP’s website: https://www.eip.com/uk/
[1] Qualcomm v Nokia [2008] EWHC 329 (Pat) at 9
Qualcomm Incorporated (A Delaware Corporation) v Nokia Corporation (A Finnish Company) [2008] EWHC 329 (Pat) (03 March 2008) (bailii.org)
[2] TQ Delta v ZyXEL [2019] EWHC 562 (Ch) at 72-78
TQ Delta, LLC v ZYXEL Communications Ltd & Anor [2019] EWHC 562 (Ch) (11 March 2019) (bailii.org)
[3] at 96
Moelnlycke Health Care AB v Brightwake Ltd (t/a Advancis Medical) [2011] EWHC 376 (Pat) (25 February 2011) (bailii.org)
[4] Mitsubishi Electric Corporation & Anor v Archos SA & Ors [2021] EWHC 1639 (Pat)
https://www.bailii.org/ew/cases/EWHC/Patents/2021/1639.html
[5] Mitsubishi Electric Corporation v Oneplus Technology (Shenzhen) Co, Ltd & Ors [2021] EWHC 1048 (Pat)
[6] Eli Lilly v Actavis UK Ltd & Ors [2017] UKSC 48 at 88
Eli Lilly v Actavis UK Ltd & Ors [2017] UKSC 48 (12 July 2017) (bailii.org)
[7] Bringing sufficiency within range: Birss J recasts the Regeneron principles for process claims, EIP | Patent Attorneys and Litigators
Holgate said the employees were given the watches, which were later valued at $20,000 in total, as a “thank you” gift for their hard work. Holgate rejected suggestions that they were paid for with taxpayers funds. However, the gifts immediately became a political issue.
Earlier this year, Holgate told a Senate inquiry that Australia Post’s chair, Lucio di Bartolomeo, had unlawfully stood her down from her role as CEO. However, Australia Post denied the claim, stating that Holgate had agreed to stand aside and later resigned. Subsequently, Holgate claimed she had been bullied out of her role by Prime Minister Scott Morrison, who decried the gifts after the incident became public.
Australia Post has since said it regrets the difficult circumstances surrounding Holgate’s departure from the company and has also agreed to pay $100,000 towards its former CEO’s legal costs. However, the company has made it clear that the payments to Holgate will be made without any admission of liability. Holgate has now released Australia Post from all legal claims.
Senior Litigation Paralegal Daniel Powell considers whether air passengers taking flights operated by non-EU/UK airlines should be entitled to compensation under European Regulation (EC) No 261/2004 (as amended in the UK by the EU Withdrawal Act) (“the Regulation”) for a flight delay in a circumstance where they have booked to fly from one non-EU/UK destination to another non-EU/UK destination, but with a connecting flight from a UK/ EU destination, and this connecting flight is delayed for more than three hours. This issue has not yet been the subject of a clear decision either by the UK or EU courts.
Further, as the UK has now left the EU and its courts will continue to interpret the meaning of an EU regulation that has been incorporated into UK domestic law, questions may arise as to whether or not the English courts should depart from jurisprudence established by the Court of Justice of the European Union (CJEU).
This issue, therefore, has potentially significant implications for passengers, international airlines and the operation of English common law in the post-Brexit era.
The relevant provision of the Regulation is art. 3(1)(a), which states that the Regulation shall apply “to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;”. Therefore, a threshold question for the court will be to decide how to interpret the expression “passengers departing from an airport” in this context? Is the term intended to include every individual flight departure in the passenger’s journey or only the first airport of departure?
The current position, as adopted by the CJEU in the case of Claudia Wegener v Royal Air Maroc SA, C-537/17 (31 May 2018) (“Wegener”), is that a passenger’s entire journey, made under the same booking, including connecting flights, should be viewed as a contiguous whole with a single point of departure. Accordingly, it is commonly understood that passengers are only entitled to compensation under the Regulation in the event of a delay if the passenger’s journey originates from a UK/EU airport. When passengers depart from a non-UK airport, any claims against the airline fall to be made under the Montreal Convention 1999, which only entitles them to seek damages, rather than a fixed amount of regulatory compensation, against an airline in such incidents as delay and lost or damaged baggage. Damages for delay however are often more difficult to prove compared to claims for a fixed amount of compensation under the Regulation.
This issue is currently being litigated in England in a case pending before the Court of Appeal. If the Court decides that passengers departing on connecting flights from UK airports may rely on the Regulation where the flight leg from the UK is delayed, this may expand passenger rights under the Regulation. It would mean that passengers could be compensated for disruption experienced during flights from the UK, even where the passenger originally flew from a non-UK/EU airport. Given the importance of London, in particular, as a major hub for international flight connections, such an outcome may potentially benefit a large number of passengers who might not otherwise be eligible under the Regulation.
On the other hand, such an outcome may also have serious financial implications for non-EU/UK airlines performing connecting flights from the UK. A change to the status quo would potentially lead to a significantly larger number of claims against the non-UK/EU airlines in a period when the airline industry is struggling or still recovering from significant financial losses incurred due to the restrictions imposed during the COVID-19 pandemic.
In Lipton and Another v BA City Flyer Limited [2021] EWCA Civ 454, another flight delay compensation case, Lord Justice Green reviewed the relevant post-Brexit legislative framework. He noted the Court’s power to depart from CJEU jurisprudence but observed that the Court had not found it necessary to do so on the facts of that case (at para. 83). If the Court of Appeal were to decide to depart from the EU decision of Wegener, this could be a precedent-setting example of an English appellate court overturning CJEU jurisprudence.
If the Court of Appeal were to depart from or reach a conclusion different from Wegener, then the rights of passengers claiming in England would diverge from those claiming in the courts of EU member states, although the right to compensation originates from the same Regulation. Although this might improve the attractiveness of UK airports for flight connections, such an outcome would undoubtedly result in confusion. EU passengers, and possibly those from non-EU countries, may also attempt to rely on the UK Court’s definition of the “departing” airport to make claims against both EU and non-EU airlines if their connecting flight departed from a UK airport. This would possibly lead the CJEU to remove that divergence by bringing its case law into line with English law, thereby expanding passenger rights even further, with consequential financial implications for airlines. A decision on this issue is expected to be received towards the end of this year.
Daniel Powell, Senior Litigation Paralegal, Zaiwalla & Co. The author’s firm represents the defendant airline in the pending appeal mentioned in this comment.
