U.S. Patent Office Launches PTAB Procedural Reform Initiative - Practice News, Summer 2017

Posted on 06-07-2017

THE UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)

With the enactment of the America Invents Act in 2011, the PTAB was charged with conducting proceedings to address challenges to existing patents. Those proceedings “have significantly changed the patent landscape by providing a faster, cost-efficient quality check on issued patents,” the USPTO said. “Since AIA trials debuted in 2012, the USPTO has continuously looked for ways to improve the proceedings. Over time, we have listened to our stakeholders’ experiences, and we have now compiled data derived from thousands of case filings and dispositions.”

The USPTO said that the purpose of its initiative is to “ensure that the proceedings are as effective and fair as possible within the USPTO’s congressional mandate to provide administrative review of the patent ability of patent claims after they issue.”

Among the procedures to be examined are those relating to multiple petitions, motions to amend, claim construction, and decisions to institute review.

In addition to evaluating input already received from businesses, inventors, intellectual property associations, trade groups, and patent practitioners, the USPTO is seeking additional feedback on its procedures and potential enhancements. Information may be submitted at PTABProceduralReformInitiative@uspto.gov. Updates on the progress of the initiative will be available on the PTAB’s website.

-Lexis Practice Advisor Journal Staff

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PRESIDENT TRUMP ISSUES EXECUTIVE ORDER ON FOREIGN WORKERS, PRODUCTS

PRESIDENT DONALD TRUMP HAS ISSUED AN EXECUTIVE order entitled “Buy American and Hire American,” aimed at strengthening the federal government’s preference for American companies and products in its procurement process and reforming the H-1B visa program for foreign workers.

The president ordered the heads of all federal agencies to “assess the monitoring of, enforcement of, implementation of, and compliance with Buy American laws within their agencies” and to “develop and propose policies for their agencies to ensure that, to the extent permitted by law, Federal financial assistance awards and Federal procurements maximize the use of materials produced in the United States.”

Regarding the visa program, the president ordered the attorney general and the secretaries of state, labor, and homeland security to “suggest reforms to help insure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

The H-1B program, which was established in the Immigration and Nationality Act, allows foreign workers who meet educational and proficiency standards to live and work legally in the United States for up to six years when there is a shortage of American workers in fields such as science and information technology.

The president’s order came several weeks after the U.S. Department of Justice (DOJ) issued a statement cautioning employers hiring workers under the H-1B program not to discriminate against American workers and two federal agencies announced plans to tighten H-1B procedures.

“The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division said. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.”

Expressing its support for the DOJ’s statement, the U.S. Department of Labor (DOL) has announced plans to step up its oversight of the H-1B program, saying that it will “rigorously use all of its existing authority” to investigate violations; consider changes to the Labor Condition Application, part of the H-1B application process; and “engage stakeholders on how the program might be improved to create greater protections for U.S. workers.”

In conjunction with the DOL’s initiative, the U.S. Citizenship and Immigration Services (USCIS) component of the Department of Homeland Security, said it “will take a more targeted approach” during visits to worksites where H-1B workers are employed, focusing on three areas: cases in which USCIS cannot validate an employer’s basic business information through commercially available data, employers who have a high ratio of H-1B workers as compared to American workers, and employers seeking to hire H-1B workers to work offsite at another company’s location.

USCIS has established an e-mail address (reportH1Babuse@USCIS.dhs.gov) for individuals to report suspected fraud. Individuals can also report suspected fraud by submitting Form WH-4 to the DOL’s Wage and Hour Division or by submitting the HSI Tip Form to U.S. Immigration and Customs Enforcement.

-Lexis Practice Advisor Journal Staff

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RESEARCH PATH: Labor & Employment > Business Immigration > Visas > Articles > Temporary Worker Visas

FINANCIAL CRIMES ENFORCEMENT NETWORK RENEWS REAL ESTATE GEOGRAPHIC TARGETING ORDERS TO IDENTIFY HIGH-END CASH BUYERS

THE FINANCIAL CRIMES ENFORCEMENT NETWORK (FINCEN) has announced the renewal of existing Geographic Targeting Orders (GTO) that temporarily require U.S. title insurance companies to identify the natural persons behind shell companies used to pay all cash for high-end residential real estate in six major metropolitan areas.

FinCEN has found that about 30% of the transactions covered by the GTOs involve a beneficial owner or purchaser representative that is also the subject of a previous suspicious activity report. This corroborates FinCEN’s concerns about the use of shell companies to buy luxury real estate in all-cash transactions.

“These GTOs are producing valuable data that is assisting law enforcement and is serving to inform our future efforts to address money laundering in the real estate sector,” said FinCEN Deputy Director Jamal El-Hindi. “The subject of money laundering and illicit financial flows involving the real estate sector is something that we have been taking on in steps to ensure that we continue to build an efficient and effective regulatory approach.”

The GTOs include the following major U.S. geographic areas: all boroughs of New York City; Miami-Dade County and the two counties immediately north (Broward and Palm Beach); Los Angeles County; three counties in the San Francisco area (San Francisco, San Mateo, and Santa Clara counties); San Diego County; and the county that includes San Antonio, Texas (Bexar County).

-Pratt’s Bank Law & Regulatory Report, Volume 51, No. 4

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RESEARCH PATH: Finance > Fundamentals of Financing Transactions > Regulations Affecting Credit > Articles > Other Regulatory Issues

MORTGAGE PERFORMANCE CONTINUES TO IMPROVE

THE OVERALL PERFORMANCE OF FIRST-LIEN MORTGAGES continues to improve, and the number of loans in delinquency continues to decline, according to the Office of the Comptroller of the Currency’s (OCC) most recent quarterly report on mortgages.

The report is based on data on first-lien residential mortgage loans serviced by seven national banks with large mortgage-servicing portfolios. The first-lien mortgages included in the OCC’s quarterly report represent 35% of all residential mortgages outstanding in the United States or approximately 19.8 million loans totaling $3.45 trillion in unpaid principal balances.

The OCC Mortgage Metrics Report, Fourth Quarter 2016, showed 94.7% of mortgages included in the report were current and performing at the end of the quarter, compared with 94.1% a year earlier.

The report also showed that servicers initiated 45,495 new foreclosures in the fourth quarter of 2016, a decrease of 5.1% from the previous quarter and a decrease of 28.2% from a year earlier.

As first-lien mortgage performance improves, the number of loss mitigation actions declines. Servicers implemented 32,312 mortgage modifications in the fourth quarter of 2016, a 9.3% decrease from the previous quarter. More than 89% of the modifications reduced borrowers’ monthly payments.

-Pratt’s Bank Law & Regulatory Report, Volume 51, No. 4

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RESEARCH PATH: Finance > Real Estate Acquisition Financing > Mortgage/Deed of Trust > Articles > Mortgage/ Deed of Trust

NORTH CAROLINA PASSES A NEW VERSION OF ITS CONTROVERSIAL BATHROOM BILL

ON APRIL 3, THE UNIVERSITY OF NORTH CAROLINA TAR Heels won their sixth NCAA basketball championship, just months after the NCAA relocated preliminary rounds in its tournament from Greensboro, N.C., to Greenville, S.C. The NCAA’s decision to relocate the games was a reaction to the North Carolina legislature’s enactment of H.B. 2, the so-called “bathroom bill,” which barred transgender individuals from using restrooms that match their gender identities.

Just four days earlier, on March 30, following a year of economic losses resulting from the refusal of a number of organizations— including the NCAA—to do business in the state, the North Carolina legislature repealed and replaced H.B. 2 with H.B. 142. The move came one week before the deadline for consideration to host future NCAA championship games.

H.B. 2 was enacted after the city of Charlotte passed a nondiscrimination ordinance expanding protection against discrimination based on sexual orientation and gender identity and expression, and permitted transgender individuals to use the restrooms of their choice. Those protections were lost with the passage of H.B. 2 in March 2016.

In an effort to promote repeal of H.B. 2, the city of Charlotte repealed its nondiscrimination ordinance in December 2016, leaving LGBT individuals with no protections at the local level.

H.B. 142 removed the explicit ban on transgender individuals using the bathroom of their choice but added language stating that access to bathrooms based on gender can be regulated only by the state legislature and prohibiting local governments from enacting anti-discrimination laws related to public accommodations until December 2020.

On April 5, the NCAA announced that its board had voted “reluctantly” to allow post-season play in North Carolina. As a result, first- and second-round games will be played in Charlotte, N.C., in next year’s NCAA men’s basketball tournament.

-Adapted from Bender’s Labor & Employment Bulletin, Volume 17• Issue No.5

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CALIFORNIA SUPREME COURT INVALIDATES ARBITRATION AGREEMENT’S WAIVER CLAUSE

 

A PROVISION CONTAINED IN A CREDIT CARD’S arbitration agreement that waives the right to seek injunctive relief is contrary to public policy and is therefore unenforceable under state law, the California Supreme Court has ruled (McGill v. Citibank, N.A. 2017 Cal. LEXIS 2551).

The state high court held further that the Federal Arbitration Act (FAA) does not preempt state law on the issue.

As a result, the court said, Citibank, N.A., cannot force credit card customer Sharon McGill to arbitrate claims brought under the California unfair competition law (Bus. & Prof. Code, § 17200 et seq.), the Consumers Legal Remedies Act (CLRA) Civ. Code, § 1750 et seq.), the California false advertising law (Bus. & Prof. Code § 17500) and the state insurance code.

McGill, seeking to represent a class of Citibank customers, filed suit in California state court, challenging Citibank’s marketing and application of a credit protector plan under which the bank agreed to defer or credit certain amounts on a customer’s credit card account if a qualifying event such as unemployment or hospitalization occurred. Customers paid a premium for the plan based on their credit card balances.

Citibank petitioned to require McGill to arbitrate her claims on an individual basis, citing a provision in its arbitration agreement stating in part, “All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek.”

The trial court denied the petition with respect to the statutory claims; a state appeals court reversed and remanded, directing the trial court to order arbitration on all claims. McGill successfully petitioned the state Supreme Court for review.

Reversing the appeals court, the state high court held that public injunctive relief “remains a remedy available to private plaintiffs” under the three state statutes and that the arbitration provision “is invalid and unenforceable under state law insofar as it purports to waive McGill’s statutory right to seek such relief.”

The court also rejected Citibank’s argument that the FAA preempts California law, finding the bank’s interpretation of the statute “overbroad.”

-Lexis Practice Advisor Journal Staff

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RESEARCH PATH: Labor & Employment >Discrimination and Retaliation > Claims and Investigations > Articles > Arbitration Agreements