On 1 March 2021 the Supreme Court heard oral arguments in
United States v Arthrex (19–1434). This case addresses whether administrative patent judges (APJs) – who preside over
inter partes reviews at the United States Patent and Trademark Office (USPTO) – are unconstitutionally appointed principal officers and, if so, whether that constitutional violation can be cured by severing for cause employment protections for APJs.
If the Supreme Court in
Arthrex concludes that APJs are unconstitutionally appointed principal officers, the remedy that the court adopts or recommends could reshape practice and procedure for
inter partes reviews and other USPTO proceedings.
Facts
Arthrex came to the Supreme Court from a 31 October 2019 Federal Circuit decision –
Introduction
With the COVID-19 vaccination process underway, employers are navigating unprecedented issues within their workforce. This article explores, among other things:
employers obligations when implementing mandatory vaccination programmes;
issues concerning employee data that is provided as proof of vaccination or pre-vaccination screening; and
defining reasonable accommodation and potential Americans with Disabilities Act (ADA) concerns.(1)
Employers obligations when implementing mandatory vaccination programmes
Employers that implement mandatory COVID-19 vaccination programmes should pay close attention to their responsibilities under the following as many of the traditional applications of these laws apply to this type of programme:
Title VII of the Civil Rights Act;
Introduction
On 11 January 2021 – in an apparent conclusion to the patent at the heart of the Federal Court s decision in
Yves Choueifaty v Attorney General of Canada (2020 FC 837) – the commissioner of patents allowed Canadian Patent Application 2635393 (CA 393) in Commissioner s Decision 1556 (CD1556) (2021 CACP 3).
CD1556 provides insight into how the Canadian Intellectual Property Office (CIPO) will:
approach patentable subject matter in future; and
apply the new guidelines on patentable subject matter released in response to
Choueifaty (see below).
The Federal Court rejected CIPO s problem-solution approach for determining patentable subject matter in
Choueifaty (for further details please see Federal Court rejects problem-solution approach, opening field for computer-implemented inventions ). The Federal Court found that this previous approach disregarded the intention of the inventor contrary to the purposive claims construction required by the Supreme Court o
Decisions
The Hungarian Intellectual Property Office (HIPO) rejected the application, holding that it was descriptive. It referred to the European Court of Justice s (ECJ s)
Biomild judgment (C-265/00), which held that word combinations which comprise the juxtaposition of several non-distinctive elements remain descriptive and cannot be considered unusual.
The applicant requested a review by the Metropolitan Tribunal, which was rejected. The tribunal agreed with the HIPO in respect of the lack of distinctiveness of the word combination for which the applicant had applied. Moreover, it held that the evidence that the applicant had filed was irrelevant in respect of distinctiveness. It did not prove acquired distinctiveness (ie, intensive use extended in time and space).
This article discusses the significant Supreme Court decision in Okpabi v Royal Dutch Shell Plc(1) which considered parent company liability. This decision on jurisdiction provides helpful guidance on the circumstances in which a UK-domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary.
Facts
The claimants, comprised of 42,355 individuals from the Niger Delta region, brought a claim in negligence against Royal Dutch Shell (RDS), incorporated in England, and one of its Nigerian subsidiaries, Shell Petroleum Development Company of Nigeria Ltd (SPDC).
In summary, the claimants alleged that they had suffered substantial environmental damage as a result of oil spills and pollution from pipelines operated by SPDC in Nigeria, such that natural water sources used for drinking water, fishing, agricultural, washing or recreational purposes were no longer safe to use. The claimants argued that RDS owed them a common law duty of care on