Foley Hoag LLP

SUMMARY

The Federal Circuit yesterday issued a ruling in In re BP Lubricants USA, Inc., available here, that is likely to have a significant impact on the recent spate of lawsuits claiming “false marking.” In these lawsuits, a plaintiff alleges that the defendant is marking a product with a patent that does not, in fact, cover the product, and that the defendant is doing so “for the purpose of deceiving the public.”

SUMMARY

Prometheus Laboratories, Inc. v. Mayo Collaborative Services, No. 08-1403, (December 17, 2010), available here.

In the first case to consider the patentability of a life sciences invention since the U.S. Supreme Court decided Bilski v. Kappos, the Federal Circuit held that medical treatment claims asserted by Prometheus Laboratories were eligible for patent protection.

SUMMARY

The Affordable Care Act (§ 9008, as amended by § 1404 of the Reconciliation Act), established an annual fee that will be imposed on covered entities that manufacturer or import branded prescription drugs.

The Department of Treasury recently issued guidance on this new annual fee, available at http://www.irs.gov/pub/irs-drop/n-10-71.pdf . The guidance describes a proposed methodology for calculating the fee, how the IRS will use the methodology to provide covered entities with a preliminary 2011 fee calculation, and solicits public comments. Comments must be submitted by June 2, 2011.

IRS Form 8947, which is referenced in the guidance, is available at http://www.irs.gov/pub/irs-pdf/f8947.pdf

SUMMARY

On March 8, 2010, the Federal Circuit affirmed a ruling of the International Trade Commission invalidating the asserted claims of two U.S. patents for failure to meet the best mode requirement. Ajinomoto Co., Inc. v. ITC, available here. Foley Hoag represented the prevailing party, Global Bio-Chem Technology Group Company Limited (GBT), a Chinese biotechnology company. The patents covered the production of lysine using genetically modified bacteria.

SUMMARY

The US Citizenship and Immigration Services (“USCIS”) has initiated a significantly expanded version of its Site Visit Program in an effort to uncover fraud in the H-1B temporary worker program. Because of a funding increase, USCIS is increasing the number of employer site visits, and, in the coming months, many employers who have sponsored foreign nationals for employment-based nonimmigrant petitions will be the subject of an investigation.

SUMMARY

An enforcement action announced by the U.S. Commerce Department's Bureau of Industry and Security (BIS) on September 15 has provided another reminder that all exports of items, software or commodities from the U.S. are subject to the U.S. Export Administration Regulations, whether or not the item is specifically classified under the U.S. Commerce Control List.

SUMMARY

Yesterday, a new federal rule took effect, which requires many federal contractors to use the E-Verify system to determine their employees’ eligibility to work in the United States.  E-Verify is a free web-based system operated by the Department of Homeland Security, in partnership with the Social Security Administration.  The system compares employee information from the Employment Eligibility Verification Forms (I-9) against federal government databases in order to verify workers’ employment eligibility.  Under the new rule, many companies which are awarded a federal contract after September 8, 2009 will be required to enroll in E-Verify within 30 days of the contract award date.  The contractor will need to use the system to verify employment eligibility for all new hires, regardless of whether the employee will work on the federal contract, and also for all existing employees who perform work on the contracts. 

 

SUMMARY

The compensation practices of nonprofit organizations in Massachusetts just became subject to increased scrutiny. The Non-Profit Organizations/Public Charities Division of the Office of the Attorney General of Massachusetts announced yesterday that it is turning its attention to compensation paid by health care systems and health care insurers to their executives and directors. Depending on the outcome of its investigation and new reporting requirements, the Division may expand its review to other sectors.

SUMMARY

Massachusetts recently joined 39 other states and the District of Columbia by enacting a version of the Uniform Prudent Management of Institutional Funds Act (UPMIFA). Most notably, and in contrast to prior law, UPMIFA permits Massachusetts institutions that hold funds exclusively for charitable purposes to tap into endowment funds whose values have depreciated below their “historic dollar values” (i.e., “underwater” endowment funds). The new law, which is effective as of June 30, 2009, also applies to funds held by a trustee for a charitable community trust.

SUMMARY

The Obama Administration announced earlier this year that U.S. Immigration and Customs Enforcement (ICE) would implement a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Moreover, the Administration made it clear that this new enforcement effort would be targeted at employers and ICE is now focusing resources on investigating employers suspected of employing undocumented workers.

SUMMARY

Two recent laws, the American Recovery and Reinvestment Act of 2009 (“ARRA,” commonly known as the stimulus package) and the Edward M. Kennedy Serve America Act, provide funding opportunities for nonprofits and social entrepreneurs to expand their services and accommodate additional volunteers. Organizations can apply for ARRA funds immediately. While funding for the Serve America Act will depend upon the 2010 federal budget, organizations may wish to assess their needs now in anticipation of the Act going into effect on October 1, 2009.

SUMMARY

As a result of a new requirement first implemented in 2008, tax-exempt organizations with gross receipts of $25,000 or less may be required to file IRS Form 990-N, the “e-Postcard.” The e-Postcard must be filed no later than the 15th day of the fifth month following the end of the organization's tax year. For example, an organization whose tax year ends December 31 must submit the e-Postcard by the following May 15.

SUMMARY

Yesterday, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the annual cap of 65,000 new H-1B visas has not yet been met and that it is continuing to accept new H-1B petitions. To date, USCIS has only received approximately 42,000 petitions to be processed under the new H-1B cap, plus approximately 20,000 additional petitions filed under the special cap for foreign workers with an advanced degree from a U.S. academic institution.

SUMMARY

The revised Form I-9, Employment Eligibility Verification (Rev. 02/02/09), goes into effect today for all U.S. employers. This form must be used for all new hires and for existing employees who require re-verification. Employers are not otherwise required to replace completed I-9 forms with the revised form.

SUMMARY

On April 1, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions for employment commencing on October 1, 2009. For most employers, new H-1B petitions are subject to an annual limit of 65,000 new H-1B visas. An additional 20,000 visas are available each year to foreign workers with an advanced degree from a U.S. academic institution. The annual quota only applies to new H-1B visas, not to individuals who already hold H-1B status. Foreign nationals who work at universities and non-profit research organization are also excluded from the numerical cap.

SUMMARY

Today the federal government agreed to further postpone implementation of the E-Verify requirement for federal contractors until May 21, 2009 at the earliest.

SUMMARY

Excerpt:

The American Lawyer (January 2009) - On October 17 the International Court of Justice ordered Georgia and Russia to refrain from ethnic cleansing in Russian-occupied Abkhazia and South Ossetia while Georgia’s complaint against Russia is being heard. It was the first invocation of the 1965 U.N. Convention on the Elimination of All Forms of Racial Discrimination by the World Court, which usually concerns itself with mundane border disputes.

But it was not the first ICJ case that Foley Hoag’s Paul Reichler helped to bring against a present or former superpower. Reichler catapulted to fame in 1984 at age 36, when he launched a suit—on behalf of Nicaragua—against the United States for its paramilitary activities in Central America. As Reichler says, “I’m surely the only lawyer to have sued both the U.S. and Russia in the International Court of Justice.” And, he might have added, won. While the World Court enjoined violence on both sides in the Caucasus—and some observers blame Georgia for provoking the confrontation—Georgia sought the injunction, and it is Georgians who most need its protection.  (continues...)

SUMMARY

As a corporate decision maker, you are responsible for enhancing profitability, improving your organization’s effectiveness and achieving ongoing business success. Our goal is to develop a relationship with your organization, so we can become a partner in your efforts. As part of our relationship, we provide counsel on ongoing business matters, as well as for extraordinary issues that unexpectedly arise. We strive to apply our experience and legal skills in a way that adds maximum value to your enterprise.

We began our business practice working exclusively with U.S.-based companies but, over decades of serving our clients’ needs, we’ve grown along with them. Today, our clients reflect the increasing importance and influence of globalization; and our work often requires a global perspective and understanding of multinational issues.

SUMMARY

In response to a lawsuit brought by the U.S. Chamber of Commerce and other industry groups, the U.S. Citizenship and Immigration Service (USCIS) has agreed to delay the imposition of the E-Verify system on federal contractors until February 20, 2009. E-Verify is an automated, web-based system for verifying employees’ identity and their authorization to work in the United States. As we explained in our December 1, 2008 bulletin, a new federal rule would have required federal contractors to use this system beginning on January 15, 2009. However, USCIS has agreed to a one-month postponement so that the federal court can decide whether the recent lawsuit has any merit. The Chamber of Commerce and others allege that the executive order making the system mandatory is invalid and seek an injunction against enforcement of the rule. We will update you as the lawsuit progresses.

For more information, see our December 1, 2008 bulletin.

SUMMARY

Most public charities organized, operating or soliciting funds in Massachusetts are required to file Form PC with the Massachusetts Attorney General’s Non-Profit Organizations/Public Charities Division within four and one-half months of the end of each fiscal year.  The Form PC requires several attachments, including financial statements for public charities having minimum amounts of gross support and revenue.  The Massachusetts legislature increased the minimum threshold for filing such statements from $100,000 to $200,000.