Challenge to IRS “Nonenforcement” of Church Political Activity Ban Survives

Challenge to IRS "Nonenforcement" of Church Political Activity Ban SurvivesThe U.S. District Court for the Western District of Wisconsin declined to dismiss a nonprofit foundation’s lawsuit against the United States Internal Revenue Service (IRS), challenging what it characterized as that agency’s policy of not enforcing a legal requirement that tax-exempt churches and religious organizations not not participate in or intervene in political campaigns on behalf of, or in opposition to, candidates for public office. Freedom from Religion Foundation v. Shulman, No. 12-C-0818 (W.D. Wis. Aug. 19, 2013).

Challenge to IRS Nonenforcement of Church Political Activity Ban SurvivesTHE FOUNDATION’S CLAIM. The U.S. Internal Revenue Code, 26 U.S.C. § 501(c)(3), provides that entities exempt from federal income taxation as charities must not participate in or intervene in any political campaign on behalf of, or in opposition to, any candidate for public office. The Freedom from Religion Foundation (the “Foundation”), itself a 501(c)(23) charity, sued the IRS, alleging that it had a policy of not enforcing this requirement against tax-exempt churches and religious organizations. According to the Foundation, the IRS “is conferring a benefit on religious organizations (the ability to participate in political campaigns) that it denies to all other § 501(c)(3) organizations, including the Foundation.”

Challenge to IRS "Nonenforcement" of Ban on Church Political Activity SurvivesTHE IRS’S ARGUMENTS. The IRS moved to dismiss the Foundation’s lawsuit, arguing that (1) the Foundation did not have legal standing to pursue the action; and (2) the action was barred by sovereign immunity. With regard to standing, the IRS cited court decisions establishing that although individual taxpayers can challenge the IRS’s actions that directly affect them, it is difficult for anyone to establish its standing to challenge a broadly applicable IRS practice.

Challenge to IRS "Nonenforcement" of Church Political Activity Ban SurvivesRULING ON STANDING. The court rejected the IRS’s argument that the Foundation lacked standing. Citing the U.S. Supreme Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488, 498 (2009), the court explained that,

[A] plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and partcularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Among other things, the court in the instant case disagreed with the Service’s contention that the Foundation was not “personally affected by the challenged policy,” but rather was “seeking to vindicate a generalized interest in making sure that the government is administered in accordance with the Constitution.” To the contrary, the court concluded that the Foundation was “suing to vindicate its own right to equal treatment”–a circumstance which distinguished the Foundation’s lawsuit from those in which standing was denied to taxpayers merely interested in ensuring that the agency is administered in accordance with the law.

RULING ON SOVEREIGN IMMUNITY. The court found that the Foundation’s lawsuit was not barred by sovereign immunity because it was brought pursuant to a provision of the Administrative Procedures Act, 5 U.S.C. § 702, which provides in part that,

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States….


 by Shawn N. Sullivan, August 28, 2013

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Trade Secrets Plaintiff Sanctioned; Couldn’t Identify Stolen Secrets

Trade Secrets Plaintiff SanctionedA state appellate court in California affirmed an award of more than US$200,000 against an investment group that acquired the assets of All American Semiconductor, Inc. (AASI) in bankruptcy and then sued a competitor, claiming that it had misappropriated AASI’s trade secrets regarding the design of computer memory modules. All American Semiconductor, LLC v. APX Technology Corp., No. G046605 (Cal. App. Aug. 14, 2013). In its unpublished opinion, the Court of Appeal for the Fourth District based its ruling primarily on the fact that the plaintiff never identified any specific trade secrets that it claimed were unlawfully taken by the defendant, APX Technology Corporation.

Trade Secrets Plaintiff SanctionedIn purchasing AASI’s assets, the plaintiff purportedly believed that it was acquiring trade secrets consisting of the designs for memory modules that AASI permitted third parties, including APX, to manufacture. However, after the acquisition, the plaintiff was unable to locate any such designs. The plaintiff surmised that the designs had been stolen by AASI’s former general manager, who allegedly took the designs to a company that manufactured memory modules in an arrangement with APX. Therefore, the plaintiff sued the former manager, his new company, and APX for trade secret misappropriation and other alleged wrongdoing.

APX asked the court for a summary ruling on the trade secret claim, contending that APX only manufactured modules of its own design. The plaintiff did not provide any evidence of specific memory module designs purportedly misappropriated by APX. The Superior Court of Orange County granted APX’s motion, finding no evidence that APX misappropriated any specific design. Ruling on a post-trial motion, the trial court also ordered the plaintiff to pay US$202,291.50 in attorneys’ fees incurred by APX in its defense of the trade secret claims.

On appeal, the appellate court affirmed. The court observed that,

It is the plaintiff’s burden to prove the existence of the claimed trade secret … and to prove his status as an owner of the trade secret… Put another way, the plaintiff may not leave mysterious exactly what pieces of information are the trade secrets and must do more than just identify a kind of technology and then invite the court to hund through the details in search of items meeting the statutory description.

(Citations and internal quotation marks omitted.)

Trade Secrets Plaintiff SanctionedThe court noted that, in attempting to meet this burden, the plaintiff cited 135 products manufactured by the defendants which purportedly were “identical” to memory modules formerly sold by AASI. According to the plaintiffs, this alleged similarity was evidence of copying and misappropriation. The court disagreed, reasoning that,

[T]his “evidence” of product line similarity does not state a trade secret claim. As discussed, plaintiff never identified the nature of any trade secret used to create any particular memory module, including how the secret manner of creating the product is unique in the industry and adds value because it is unknown by others. The fact two companies have similar or identical iterations of a product undercuts the notion a trade secret is necessary to create them…. Additionally, products cannot themselves be trade secrets if they reveal their constituent parts to those in the trade or public who handle or disassemble them because reverse engineering is not a trade secret violation.

The appellate court held that the trial court properly awarded attorney’s fees to the defendant, because the California Uniform Trade Secrets Act permits such awards where “a claim of [trade secret] misappropriation is made in bad faith.” “The trial court,” it concluded, “reasonably could infer subjective bad faith from plaintiff’s persistence in its claims without evidence….”

 by Shawn N. Sullivan, August 27, 2013



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Arbitration Tribunal Finds Jurisdiction in Bangladesh-Investor Disputes

Arbitration Tribunal Finds Jurisdiction in Bangladesh-Investor Disputes

On August 19, 2013, a panel of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) ruled on challenges to its jurisdiction to hear two arbitration cases brought by Niko Resources (Bangladesh) Ltd., a Barbados subsidiary of a Canadian oil and gas exploration company, against the Government of Bangladesh and two of its state-owned corporations. Decision on Jurisdiction, Niko Resources (Bangladesh) Ltd v. People’s Republic of Bangladesh, ICSID Case Nos. ARB/10/11 and ARB/10/18 (Aug. 19, 2013).

Arbitration Tribunal Finds Jurisdiction in Bangladesh-Investor Disputes

In Case No. ARB/10/11, Niko is seeking a declaration that it has no liability arising from two natural gas well blowouts at the Chattak gas field in 2005. The tribunal wrote that “there can be no doubt” that it has jurisdiction over Niko’s claim against the Bangladesh Petroleum & Exploration & Production Company Limited (BAPEX), because Niko and BAPEX were parties to a joint venture agreement that specified that disputes between them would be resolved through ICSID arbitration. The tribunal found that it did not have jurisdiction with regard to Niko’s claims against the Bangladesh Oil Gas & Mineral Corporation (Petrobangla) or the Government of Bangladesh, as neither of them was a party to the joint venture agreement. In addition, the tribunal emphasized that the terms of the joint venture agreement among the parties assigned to BAPEX the responsibilities and obligations of Petrobangla and the Government toward Niko.

In Case No. ARB/10/18, Niko seeks to require Petrobangla to pay it and BAPEX for gas deliveries made under a gas purchase and sale agreement between them. The panel rejected Petrobangla’s arguments contesting jurisdiction and confirmed ICSID’s jurisdiction to determine NRBL’s claim against Petrobangla for payments owing to NRBL for delivered gas.


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Indian IP Board Upholds Rejection of Plant Stress Tolerance Patent

Indian IP Board Rejects Plant Stress Tolerance PatentOn July 5, 2013, the Indian Intellectual Property Appellate Board affirmed a decision of the national patent office to deny Monsanto Company’s application for a patent covering “a method of producing a transgenic plant, with increasing heat tolerance, salt tolerance or drought tolerance.” Monsanto Technology, LLC v. The Controller of Patents & Designs, Trademark and Geographical Indications (India IP App. Bd. Jul. 5, 2013).

THE CLAIMED INVENTION. Claim 1 in the Monsanto application–the only independent claim in the application–was directed to a method of producing a transgenic plant comprising the following steps:

 a) inserting into the genome of plant cells a recombinant DNA molecule comprising a DNA encoding a cold shock protein, wherein said DNA encoding said cold shock protein is operably linked to a promoter and operably linked to a 3′ transcription termination DNA polynucleotide;

(b) obtaining transformed plant cell containing said recombinant DNA;

(c) regenerating plants from said plant cells; and

(d) selecting a plant for increased heat tolerance, salt tolerance, or drought tolerance.

Indian IP Board Rejects Plant Stress Tolerance Patent
Photo Credit: NASA. Longer and more frequent droughts affect crop productivity worldwide.

THE PATENT OFFICE’S DENIAL OF THE APPLICATION. The patent office refused Monsanto’s application on the grounds that the claimed invention lacked an inventive step in view of several items of prior art, including an article in the Journal of Bacteriology and two prior patent applications. According to the patent office, the structure and function of the “cold shock protein” was already known in cited prior art and was obvious to a person skilled in the relevant art. The patent office further determined that the invention claimed by Monsanto was the mere application of an already known cold shock protein in producing cold stress tolerant plant and tolerant to heat, salt and drought conditions. Moreover, the office found that the claims included the “essential biological process of regeneration and selection, which includes growing of [a] plant in [a] specific stress condition.”

NO CLAIM TO AN ESSENTIALLY BIOLOGICAL PROCESS. In its July 5 opinion, the Appellate Board disagreed with the determination that the application disclosed an “essentially biological process” that was statutorily excluded from patent eligibility. The Board reasoned that the method claimed by Monsanto–

 … is a method that includes an act of human intervention on a plant cell and producing in that plant cell some change. Therefore the [Controller of Patents] erred in finding this method as essentially biological process and excluded under section 3(j) [of the Patents Act 1970]. We set aside his findings to that extent.

OBVIOUSNESS AND LACK OF NOVELTY. Monsanto’s victory on the exclusion issue, however, was insufficient to reverse the office action denying its application. The Board wrote that it “confirm[ed] and concur[red] with the findings” of the patent office with regard to the lack of novelty and obviousness of the claimed invention.

By: Shawn N. Sullivan

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Honduras Signs Nagoya Protocol

Earlier this week, Honduras acceded to the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. Honduras suscribe Protocolo de Nagoya, El Heraldo (Aug. 14, 2013). In doing so, the Central American nation became the 19th state to ratify the special protocol to the Convention on Biological Diversity.

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US Supreme Ct: Naturally Occurring DNA is Unpatentable Product of Nature

Today, Supreme Court: Naturally Occurring DNA Unpatentablethe U.S. Supreme Court ruled that naturally occurring DNA is a product of nature and, as such, is not patentable. Association for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S. June 13, 2013). However, according to the Court, complementary DNA (cDNA)—which is a synthetic gene construct that contains the same protein-coding nucleic acid base pairs found in naturally occurring DNA but omits the non-coding regions of a gene—is patent eligible because it is not naturally occurring. The Court delivered its ruling in the context of a challenge to patents that Myriad Genetics obtained after discovering the precise location and sequence of the BRCA1 and BRCA2 genes, mutations of which can dramatically increase the risk of breast and ovarian cancer in humans.

Supreme Court: Naturally Occurring DNA UnpatentableThe Supreme Court has previously held that “anything under the sun made by man” can be patented if it meets the Patent Act’s criteria of novelty, usefulness, and non-obviousness. However, the Court has long recognized that a product of nature–in simplified terms, a naturally existing composition of elements and materials–is not patentable. Determining whether a claimed invention is really a product of nature has often proved difficult for lawyers, patent examiners, and judges.

In the present case, Justice Clarence Thomas, who wrote the Court’s majority opinion, held that merely isolating the specific BRCA1 and BRCA2 genes did not constitute a patentable invention: “Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes . . . patent eligible.” According to the Court, “Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”

The Court determined that cDNA is not inherently unpatentable because it is not a product of nature:

cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments…. [C]reation of a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring…. [T]he technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a “product of nature” and is patent eligible under §101 [of the Patent Act], except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA. In that situation, a short strand of cDNA may be indistinguishable from natural DNA.

Justice Thomas’s opinion notes three important limitations on the Court’s holding. First, there were “no method claims before this Court.” Thus, if Myriad had “created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. Second, the Court observed that the case did “not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes.” Third, the Court did not consider “the patentability of DNA in which the order of the naturally occurring nucleotides has been altered.” Instead, the Court’s primary holding was limited to the proposition “that genes and the information they encode are not patent eligible under §101 [of the Patent Act] simply because they have been isolated from the surrounding genetic material.”

by Shawn N. Sullivan, June 13, 2013.

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Spanish Plant Variety Rights Litigation Continues

Spanish Plant Variety Rights Litigation ContinuesAccording to news reports, an appellate court in Granada, Spain recently affirmed a lower tribunal’s denial of a request by Swiss multinational Syngenta for provisional measures against a company it claimed was infringing Syngenta’s European Community plant variety rights. Syngenta con Kumato vs Ekologic Seeds con Tomachoc, Teleprensa (May 9, 2013). Syngenta, however, notes that the case is not over.

Plant Variety Rights Litigation ContinuesSYNGENTA’S CLAIMS. Syngenta sought to prohibit Almería-based Ekologic Seeds from selling its “SHIR” (or “TOMACHOC”) tomato variety on the theory that SHIR was essentially derived from Syngenta’s KUMATO-branded tomato products, which are grown from hybrid tomato plants of the protected varieties SX387 and/or OLMECA.  However, in a November 15, 2012 decision, the Juzgado de lo Mercantil de Granada rejected Syngenta’s request.

RULING OF THE PROVINCIAL COURT. Syngenta appealed the lower court’s order to the Provincial Court of Granada. In an April 19, 2013 decision, the appellate court dismissed the appeal. According to accounts of the decision, the court found no evidence that Syngenta’s OLMECA or SX387 varieties were used in the breeding efforts that led to the development of the SHIR/TOMACHOC variety. In addition, European Union officials purportedly compared Ekologic’s products with those of Syngenta and  found  88.20% similarity. Such similarity is considered within the range of an acceptable degree of differences for a single group of varieties. The Provincial Court thus determined that the differences between the accused tomatoes and Syngenta’s protected varieties were “significant.”

CONTINUING CLAIMS. In the wake of the Provincial Court’s decision and publicity surrounding it, Syngenta has publicly noted that the appellate decision did not terminate its litigation against Ekologic in its entirety. Syngenta defiende sus derechos de propiedad sobre el Kumato, (May 23, 2013). Syngenta declared that it intends “to defend vigorously its rights and all its products by all means at its disposal against any varieties that are capable of infringing intellectual property rights for its plant varieties.”

COMMENT REGARDING ESSENTIALLY DERIVED VARIETIES.  The European Union’s Community Plant Variety Rights system grants to the breeder of a new, distinct, uniform, and stable plant variety an intellectual property right whose validity and effect are uniform throughout the EU. See Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, as amended. Among other things, the plant variety right gives its owner the right to exclude other persons from reproducing, conditioning, selling, importing, exporting, or stocking seed of the protected variety without the owner’s authority. Although another breeder may use a protected variety for the purpose of breeding, developing, or discovering a new variety, the owner of the protected variety’s exclusive rights apply to subsequent varieties that are “essentially derived” from the protected variety. As defined in the Community Plant Variety Rights regulation, a variety is deemed to be essentially derived from a protected variety when–

(a) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety;

(b) it is distinct … from the initial variety; and

(c) except for the differences which result from the act of derivation, it conforms essentially to the initial variety in the expression of the characteristics that results from the genotype or combination of genotypes of the initial variety.

At the time of this writing, the decision of the Provincial Court of Granada was not publicly available. When a copy becomes available, this post will be updated with a more detailed look at how the court addressed the vexing question of essential derivation.

by Shawn N. Sullivan, June 5, 2013.

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Senate Tax Report Details Apple’s Offshore Profit-Shifting Tactics

Apple's Offshore Profit-ShiftingThe report of the U.S. Senate Permanent Subcommittee on Investigations on Apple Inc.’s international tax strategy sheds light on how the company has exploited to maximum effect a number of gaps in the web of national tax jurisdictions. Subcommittee Memo on Offshore Profit Shifting and the U.S. Tax Code – Part 2 (Apple Inc.) (May 21, 2013). Among other things, Apple incorporated two major subsidiaries in Ireland. It transferred certain economic rights to its intellectual property to one of those subsidiaries, enabling that entity to pay a corporate income tax rate of 2% or less. According to the report, Apple’s other Irish subsidiary “has no declared tax residency anywhere in the world and, as a consequence, has not paid corporate income tax to any national government for the past 5 years.” The report states that, through these and other maneuvers, between 2009-2012 Apple succeeded in avoiding US$44 billion in U.S. taxes on otherwise taxable offshore income.

For a lawyer with an interest in international taxation, the report evokes a sense of awe at the skill with which Apple appears to have gamed the system. However, that sensation quickly fades when, as a taxpayer in a nation becoming increasingly mired in debt, one considers the long-term effects on the public fisc of the loss of those revenues.


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Beware Trademark Invoice Scams

Trademark Invoice ScamToday a friend asked me about two invoices his company recently paid for “trademark registration” by very official-sounding entities in the Czech Republic and the Slovak Republic. He essentially wanted to know how frequently the company would be billed for keeping its marks registered. Unfortunately, I had to explain that his company had been misled, and that scam artists have been fleecing U.S. and European companies with this stunt for the last 2-3 years.

The misleading elements of trademark invoice schemes vary. However, the targets are generally small businesses that have recently registered trademarks somewhere in the world. They receive an invoice that appears to be from a government agency, written in very confusing language evidently meant to look like legalese. The invoice demands payment of a fixed sum of money in exchange for something relating to registration of a trademark. In my friend’s situation, the “something” is explained in the small print of one of the invoices to be “registration of your international trademark application in our Internet database,” and in the other invoice to be “access of the client in the catalog on the provider’s portal.” From reading what others have reported on these schemes, it appears that the “registration” refers to including the trademark owner’s mark in the invoicing company’s privately-owned database. It does not mean that the mark will actually be registered in a public trademark office anywhere or that the fees will be used to maintain an existing registration.

Several official trademark offices have posted warnings about misleading trademark invoices:

OHIM Warning

USPTO Warning

WIPO Warning

There are similar schemes dealing with the registration of domain names. If you receive an invoice relating to trademarks or domain names, you should read it very carefully. If it contains the words “offer” or “solicitation,” the invoice is almost certainly not what it appears to be at first glance. Also, regardless of the language used in the invoice, you should research and attempt to contact the organization that sent it. You may also make an inquiry about the invoice with the public trademark office where you’ve registered your marks. And, of course, if you have access to legal counsel, have your attorney look into the validity of the invoice.

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Plant Variety Rights Case: Court Orders Claimant to Return Seized Items

Dutch Court Dismisses Plant Variety Rights Infringement ClaimsIn an opinion issued April 25, 2013, a Dutch court in the city of Roermond found no basis for plant variety rights infringement claims brought by the Anti-Infringement Bureau for Intellectual Property Rights on Plant Material (AIB), a Brussels-based association that represents major companies in the vegetable seed industry. See Anti-Infringement Bureau for Intellectual Property Rights on Plant Material v. Novisem B.V., No. C/04/l220l3 / KG ZA 13-63 (Roermond Civil Court Apr. 2013). AIB contended that Dutch vegetable seed company Novisem B.V. had infringed plant variety rights relating to  three celery varieties known as Diamond, Brilliant, and Prinz. Novisem is described by the court as “a breeding company engaged in development, production and sale of seeds of celery, chicory, gardening and pole beans.” The variety rights to the Diamond, Brilliant, and Prinz varieties are owned by two of AIB’s member companies, Nunhems B.V. and Bejo Zaden B.V.

Court Orders Return of Items Seized in Plant Variety Rights Infringement CaseOn March 18, 2013, after obtaining court approval, AIB effectuated a seizure of evidence at Novisem’s premises in Baarlo, the Netherlands. At that time, quoted AIB’s managing director, Casper van Kempen, as saying that, “Cases like this cost time, but this seizure shows our determination to stop alleged infringements.” See Netherlands: Alleged infringement on plant variety rights seizure at seed company Novisem.

AIB contended, among other things, that the seizure showed that Novisem was unlawfully reproducing plants of the protected varieties for sale. Novisem defended that it was availing itself of the “breeder’s exemption” to plant variety protection, which permits a breeder to use protected varieties as the sources of initial variations to create new varieties of plants. AIB argued, however, that Novisem possessed significantly more plant material than was required for breeding purposes. Novisem presented to the court statements by its breeders, which contradicted AIB’s assertions. On this point and others, the court agreed with Novisem.

Dutch Court Orders Return of Materials Seized in Plant Variety Rights Infringement Case
Correction Notice Printed on AIB’s Website

In its April 25 ruling, the court found “no reasonable grounds” for the claim that Novisem had infringed the purported plant variety rights. The court ordered AIB to return to Novisem return all of plant samples and copies of data seized from Novisem, and to pay Novisem €15,575, representing Novisem’s costs and counterclaim damages. The court also directed AIB to place a correction on its website–a mandate that AIB fulfilled by posting the “Rectificatie” notice illustrated in this article.

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