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Schwabe, Williamson & Wyatt | September 2022

During the COVID-19 pandemic, questions about employee health-privacy-related symptoms, testing, and vaccination became prevalent in discussions about the workplace at all levels—from “the water cooler” to national news ...

Schwabe, Williamson & Wyatt | September 2022

On September 8, 2022, the Ninth Circuit Court of Appeals affirmed the reserved right of the Metlakatlan Indian Community to fish in the off-reservation waters where Metlakatlans had traditionally fished, and held that Metlakatlans are not subject to an Alaska statute creating a limited-entry program for commercial fishing. Metlakatla Indian Community v ...

Schwabe, Williamson & Wyatt | September 2022

Polaris Innovations Ltd. v. Brent, Appeal No. 2019-1483 (Fed. Cir. Sept. 15, 2022) In our Case of the Week, the Federal Circuit provided what appears to be its first precedential opinion construing Section 317 of the Patent Act—a provision concerning the effect of settlement during an America Invents Act (AIA) proceeding. The Court’s opinion construes the statute in ways that may be unexpected for parties who seek to settle inter partes review (IPR) petitions ...

Schwabe, Williamson & Wyatt | September 2022

Despite their reputation, traditional defined benefit (pension) plans can be a valuable tool for small business succession planning. Defined benefit pension plans are often associated with unions and financial mismanagement resulting in severe underfunding and government bailouts. They are often viewed by many within the retirement plan industry itself as a relic ...

Schwabe, Williamson & Wyatt | September 2022

Multiemployer pension plan (MEPP) withdrawal liability often costs millions of dollars, ‎even for small employers. People weighing whether to buy or sell a construction company (or its ‎assets) will want to be aware of any potential withdrawal liability that may be assessed.‎ Employers that withdraw from an underfunded MEPP are subject to withdrawal liability ‎under the Employee Retirement Income Security Act of 1974 (ERISA) ...

Schwabe, Williamson & Wyatt | September 2022

Many federal contractors are required to file Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Reports). Generally, employers that are subject to Title VII of the Civil Rights Act of 1964, as amended, and has 100 or more employees must file an EEO-1 Report with the Equal Employment Opportunity Commission (EEOC) ...

Schwabe, Williamson & Wyatt | September 2022

There have been significant delays in registering entities at SAM.gov, and that has been adversely impacting the ability of some federal contractors to respond to certain procurements/solicitations because FAR 4.1102(a) requires offerors to be registered in SAM.gov at the time of an offer or a proposal submission. On September 8, 2022, the Department of Defense (DOD) acknowledged the issue with SAM.gov and issued a class deviation permitting contracting officers to include FAR 52 ...

Schwabe, Williamson & Wyatt | September 2022

In 2019, the Oregon legislature passed the Paid Family Medical Leave (PFML) Act, establishing a paid ‎family and medical leave insurance program for Oregon workers that will be funded by employee ‎contributions. After pandemic-related delays finalizing regulations and preparing for implementation, ‎the program—now branded as “Paid Leave Oregon”—is finally taking effect ...

Schwabe, Williamson & Wyatt | September 2022

On September 9, 2022, the U.S. Small Business Administration (SBA) issued a notice of proposed rulemaking regarding “Ownership and Control and Contractual Assistance Requirements for the 8(a) Business Development Program ...

Schwabe, Williamson & Wyatt | September 2022

Arendi S.A.R.L. v. LG Electronics Inc., Appeal No. 2021-1967 (Fed. Cir. Sept. 7, 2022) In our Case of the Week, the Court of Appeals for the Federal Circuit affirmed the District of Delaware’s application of the duplicative litigation doctrine. Arendi sued LG for patent infringement, claiming that hundreds of LG products, including LG’s Rebel 4 camera, infringed Arendi’s patent ...

Schwabe, Williamson & Wyatt | September 2022

INVT SPE LLC v. Int’l Trade Comm’n, Appeal No. 2020-1903 (Fed. Cir. Aug. 31, 2022) In its only precedential patent case last week, the Federal Circuit issued a lengthy opinion that revolved around claims that are drawn to “capability,” particularly for computer-implemented claims ...

Schwabe, Williamson & Wyatt | September 2022

INVT SPE LLC v. Int’l Trade Comm’n, Appeal No. 2020-1903 (Fed. Cir. Aug. 31, 2022) In its only precedential patent case last week, the Federal Circuit issued a lengthy opinion that revolved around claims that are drawn to “capability,” particularly for computer-implemented claims ...

On July 21, 2022, the Department of Land Conservation and Development (DLCD) ‎adopted the Climate-Friendly and Equitable Communities (CFEC) rules. DLCD then filed the ‎permanent CFEC rules with the Oregon Secretary of State on August 17, which are now in ‎effect. To note, the rules are still up for appeal; on a petition for judicial review, the Court of ‎Appeals could declare a rule invalid ...

Best Medical International, Inc. v. Elekta Inc., Appeal Nos. 2021-2099, -2100 (Fed. Cir. Aug. 26, 2022) In this week’s Case of the Week, the Federal Circuit addressed issues of jurisdiction where a challenged claim was canceled through ex parte reexamination during pending inter partes review proceedings, and otherwise affirmed the Patent Trial and Appeal Board’s determination that challenged claims were obvious over the prior art ...

On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directs federal agencies to include in certain federal contracts a clause requiring the contractor to comply with all guidance published by the Safer Federal Workforce Task Force. Included in those guidelines is a mandate that all federal contractor employees be vaccinated against COVID-19 unless the employee is legally entitled to an accommodation ...

The SBA has published a notice of “Tribal Consultation for Ownership and Control and Contractual Assistance; Requirements for the 8(a) Business Development (BD) Program and other Planned 8(a) BD Program Regulatory Proposals.” The notice states that SBA is “planning to issue a proposed rule concerning the 8(a) BD program regulations . . ...

On Thursday, August 19, 2022, as mandated by Executive Order 14063, issued by President Biden February 4, the Federal Acquisition Regulatory Council proposed a rule to amend the Federal Acquisition Regulations (FARs) to require that federal contractors and their subcontractors enter into project labor agreements (PLAs) with unions as a condition to receiving federal construction contracts worth $35 million or more ...

On Thursday, August 19, 2022, as mandated by Executive Order 14063, issued by President Biden February 4, the Federal Acquisition Regulatory Council proposed a rule to amend the Federal Acquisition Regulations (FARs) to require that federal contractors and their subcontractors enter into project labor agreements (PLAs) with unions as a condition to receiving federal construction contracts worth $35 million or more ...

This week, we provide extensive write-ups about two consequential decisions issued by the United States Court of Appeals for the Federal Circuit concerning two procedural issues under the America Invents Act (“AIA”), both following Supreme Court decisions.  In In re: Palo Alto Networks, Inc., Appeal No. 2022-145 (Fed. Cir. Aug ...

Hologic, Inc. v. Minerva Surgical, Inc., Appeal Nos. 2019-2054, -2081 (Fed. Cir. Aug. 11, 2022) Our Case of the Week follows the Hologic saga as it returns to the Federal Circuit on remand from the Supreme Court’s decision vacating the prior Federal Circuit opinion in 2021.  We covered that decision here.  The case concerns the doctrine of assignor estoppel.  In this decision on remand, the Federal Circuit concluded that assignor estoppel applied ...

As a result of the Infrastructure Investment and Jobs Act, the federal government’s FAST-41 permitting project can now be used by Tribes and Alaska Native Corporations to potentially expedite and improve the permitting process for infrastructure projects that are either being performed by Tribes or Alaska Native Corporations, or are being performed on land owned by Tribes or Alaska Native Corporations ...

Historically, small contractors in the construction business have found it difficult to break into the federal market not because of a lack of skill or knowledge, but because they could not demonstrate the past performance required by many federal solicitations. On July 22, the Small Business Administration (SBA) released a final rule that will hopefully provide greater opportunity for contractors to compete for federal construction procurements ...

PATENT CASE OF THE WEEK Thaler v. Vidal, Appeal No. 2021-2347 (Fed. Cir. Aug. 5, 2022) In its only precedential patent decision this week, the Federal Circuit answered a question that had long occupied the musings of law professors, students, and legal theorists everywhere: whether artificial intelligence software can be listed as an inventor on a patent application.  It cannot ...

There is increasing interest in integrating renewable energy sources into the power grid in the United States. In particular, interest in offshore wind development is growing rapidly. Shortly after taking office, President Biden issued an executive order stating his goal to double offshore wind production by 2030.[1] With leases for offshore wind projects on the East Coast currently being issued, and the construction of two projects already approved, several others are likely to follow soon ...

BUSINESS TODAY LOOKS NOTHING LIKE it did prepandemic. Every industry has experienced a shakeup in how organizations are managed, operated and shaped. COVID-19-driven pivots, the groundswell of demand for social change and continuous uncertainty has led to a long-overdue shift in business priorities. Chief among those is the need to drive innovation, which has never been more essential to success ...

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