Archer & Greiner Welcomes Three New Associates

Archer & Greiner P.C. is pleased to announce the addition of three new attorneys, Nicholas Franchetti, Jorge Garcia, and Thomas W. Nardi. Nicholas and Jorge are located in the firm’s Haddonfield office and Thomas is located in the firm’s Philadelphia office.

Nicholas Franchetti is an associate in the Business Litigation practice group where he handles a variety of matters, including intellectual property litigation, contract disputes, and consumer fraud claims. He is a graduate of Duke University School of Law. Nick was a summer associate at Archer before graduating from Duke, and he also interned at the United States Attorney’s Office for the Eastern District of Pennsylvania, where he worked in both the Civil and Criminal Divisions.

Jorge Garcia is an associate in the Business Litigation and Immigration practice groups. He is a graduate of Temple University’s James E. Beasley School of Law and brings to Archer a variety of civil litigation experiences. Jorge was twice a summer associate at Archer. During law school, Jorge served as a legal extern to the Honorable M. Teresa Sarmina of the Philadelphia Court of Common Pleas and to the Honorable Francisco Dominguez of the New Jersey Superior Court. Jorge was a staff editor for the Temple International & Comparative Law Journal. He was also a member of Temple’s nationally recognized Trial Team and Moot Court Competition Team. He won several awards for both his oral advocacy and legal writing.

Thomas W. Nardi is an associate in the Business Litigation practice group. He is a graduate of Temple University’s James E. Beasley School of Law and brings to Archer a variety of litigation experiences. Tom was a summer associate at Archer before graduating from Temple. While in school, he also worked as a law clerk for a sole practitioner in the Philadelphia area, and a judicial intern for the Honorable Daniel Anders of the Philadelphia Court of Common Pleas. Tom was also a teaching assistant for several Civil Procedure classes, and won several awards participating in Temple’s nationally-recognized Trial Advocacy program. He also interned with the Philadelphia District Attorney’s Office, the Philadelphia Law Department, and the Pennsylvania Innocence Project. Tom was a Note and Comment Editor for Volume 89 of the Temple Law Review.

Archer & Greiner, P.C. is a full-service regional law firm with more than 175 lawyers and eight offices in Haddonfield, Hackensack, Princeton, Flemington and Red Bank, N.J.; Philadelphia, Pa.; New York, N.Y.; and Wilmington, Del. The firm has been serving Fortune 100 clients, small to medium-sized businesses and individuals for over 85 years. Each office provides full-service litigation and transactional capabilities in nearly every area of law, including corporate, estate & trust, family & matrimonial, labor & employment, litigation, medical & personal injury, and real estate services. For more information, visit www.archerlaw.com.

 

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Steven Mignogna to Receive 2017 NJICLE Distinguished Service Award

Steven K. Mignogna, a Partner in Archer’s Haddonfield office, has been selected to receive a 2017 Distinguished Service Award from the New Jersey Institute for Continuing Legal Education (NJICLE). The Award recognizes Mr. Mignogna for his exceptional contributions to continuing legal education, NJICLE and its educational mission. Mr. Mignogna will receive his award at a reception on December 4th at the New Jersey Law Center in New Brunswick.

A legal education advocate, Mr. Mignogna has been a NJICLE speaker for more than 20 years, and has participated in dozens of seminars on wills, trusts and probate litigation. Mr. Mignogna has also authored, edited and contributed to several NJICLE publications. He is principal author of the treatise, Estate and Trust Litigation and editor and contributing author of The New Jersey Estate Planning Manual and The New Jersey Probate Procedures Book, all published by the New Jersey Institute for Continuing Legal Education.

Mr. Mignogna serves as the Co-Chair of Archer’s Estates and Trusts Department and Chair of the firm’s Estate and Trust Litigation Group. He focuses his practice on commercial litigation, with a concentration on probate matters, estates, fiduciaries, guardianships and real estate.

Mr. Mignogna has long been recognized for his commitment to supporting and encouraging legal education within Archer and in the legal industry. In addition to NJICLE, he has lectured and published for the Heckerling Institute, the National College of Probate Judges, the American Law Institute Continuing Legal Education Group, the American Bar Association, the Duke University Estate Planning Conference, the Delaware Trust Conference, and Estate Planning Councils around the country.

Mr. Mignogna is active in a wide array of professional associations. He is a Fellow of the American College of Trust and Estate Counsel (ACTEC) and member of ACTEC’s Fiduciary Litigation Committee and its Subcommittee on Fiduciary Surcharge and Damages/Remedies. He is also a member of ACTEC’s Professional Responsibility Committee. In addition, Mr. Mignogna is Chair of the Alternative Dispute Resolution Committee in the Litigation, Ethics and Malpractice Group of the American Bar Association’s Real Property, Trust and Estate Law Section.

Archer & Greiner, P.C. is a full-service regional law firm with more than 175 lawyers and eight offices in Haddonfield, Hackensack, Princeton, Flemington and Red Bank, N.J.; Philadelphia, Pa.; New York, N.Y.; and Wilmington, Del. The firm has been serving Fortune 100 clients, small to medium-sized businesses and individuals for over 85 years. Each office provides full-service litigation and transactional capabilities in nearly every area of law, including corporate, estate & trust, family & matrimonial, labor & employment, litigation, medical & personal injury, and real estate services. For more information, visit www.archerlaw.com.

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Archer Donates Funds to the American Red Cross Hurricanes Harvey and Irma Relief Effort

Archer and the law firm’s employees raised $9,345 for the American Red Cross to assist with relief efforts in Texas and Florida following the devastation of Hurricanes Harvey and Irma. Presenting the check to Randi Zamkotowicz (center), Major Gift Officer, Corporate Partnership of the American Red Cross, New Jersey Region are James H. Carll (left), Archer Chairman and Douglas G. Leney (right), a partner at the firm and Board Member, American Red Cross, Southwestern NJ Chapter.

 

Exhausting Update: Patents are NOT Different from Copyrights! A Sea Change Ahead for Licensing?

This is a promised update to the Client Advisory of February 2016 on the issue of  patent exhaustion in the case of  Lexmark v. Impression, as then decided by the United States Circuit Court of Appeals for the Federal Circuit when we speculated:

“Whether or not either barrel of this decision will shoot its way to the Supreme Court is hard to say; however, it goes without saying that this complicated commercial topic of dealing with exhaustion of intellectual property rights is a critical one for many patentees, licensees, and resellers. Its changeable nature and complexity argue for early and continuing analysis of contracts and licensing agreements by your trusted, and never exhausted, intellectual property law advisor.”

The value of  that type of inexhaustible advice has now doubled, because  the  recent, unanimous, double-barreled reversals of the Federal Circuit by the Supreme Court are of major commercial implication to the above mentioned patentees, licensees, and resellers, casting into troubled waters the question of  whether a sale of a  patented product is  still a good idea,  at least in the case in which that product can be licensed, rather than sold.

In its reversal of the Federal Circuit,  the Supreme Court in  Impression Products v. Lexmark International upheld its prior rules on when patent rights have been “exhausted” and by doing so weakened the arsenals of patent holders.  The appeals court had held: (i) that the sale in the United States of an article covered by a US patent that is subject to certain reuse and resale restrictions does not exhaust the patent  rights of the patent holder; and (ii) that the sale outside of the United States of an article covered by a US patent does not exhaust the rights of the patent holder as against the purchaser of that article on the purchaser’s importation of that article into the United States, notwithstanding the 2013 Supreme Court copyright decision in Kirtsaeng.1

Both holdings of the appellate court were reversed in a whale of a decision  by the Supreme Court at the end of this term.

Again, the facts:

Lexmark sold  patented ink cartridges domestically under a “Return Program Cartridge” program at a contractual discounted price subject to a single-use, no-resale restriction.  In the trial court, Lexmark accused Impression of reselling the discounted Return Program Cartridges domestically and of importing into the USA cartridges  that Impression had purchased directly from Lexmark abroad. The trial  court: (a) found no patent infringement on  Impression’s domestic sales of Return Program Cartridges, but (b) found infringement on the importation into the United States of either type of cartridge by Impression  since foreign markets  are not equivalent to domestic markets, and refused to apply the Supreme Court’s logic in the Kirtsaeng copyright case to patent law.

The Federal Circuit reversed the first holding,  but upheld the second, in a decision highly  favorable to patent holders, saying:

“We hold that, when a patentee sells a patented article under otherwise-proper restrictions on resale and reuse communicated to the buyer at the time of sale, the patentee does not confer authority on the buyer to engage in the prohibited resale or reuse. The patentee does not exhaust its § 271 rights to charge the buyer who engages in those acts-or downstream buyers having knowledge of the restrictions-with infringement. We also hold that a foreign sale of a U.S.-patented article, when made by or with the approval of the U.S. patentee, does not exhaust the patentee’s U.S. patent rights in the article sold, even when no reservation of rights accompanies the sale.”

The Supreme Court did not agree with that school of thought; it’s now the law that:

    A. The sale, anywhere in the world,  of an article covered by a US patent exhausts the patent holder’s right to sue the purchaser of that article for patent
infringement.

  1. Chief Justice Roberts, writing for a unanimous Court on the domestic issue, found:   “Congress enacted and has repeatedly revised the Patent Laws against the back drop of hostility toward restraints on alienation,” and went on to cite a 1917 decision for the proposition that those restraints have been “‘hateful to the law from Lord Coke’s2 day to ours.”
  2. And the place of the sale simply does not matter because Justice Roberts, in applying Kirtsaeng to patent law, noted the “‘historic kinship between patent law and copyright law’…and the bond between the two leaves no room for a rift on the question of international exhaustion.”

But….

B. The license, anywhere in the world, of an article covered by a US patent does NOT exhaust the patent holder’s right to sue the licensee of that article for patent infringement. Justice Roberts wrote: “Patent exhaustion reflects the principle that, when an item passes into commerce, it should not be shaded by a legal cloud on title as it moves through the marketplace. But a license is not about passing title to a product, it is about changing the contours of the patentee’s monopoly: The patentee agrees not to exclude a licensee from making or selling the patented invention, expanding the club of authorized producers and sellers….Because the patentee is exchanging rights, not goods, it is free to relinquish only a portion of its bundle of patent protections.”

Will we see a sea change in the commercial waters  now as patent holders attempt to camouflage  their transactions as  licenses,  thereby  morphing  into  licensors, rather than sellers? Since  patent rights can no longer “stick remora-like to [a sold] item as it flows through the market,3” the bigger fish may be doing a lot more licensing.

One thing to keep in mind: Just because the right to sue for patent infringement may be lost, a seller might still have the bargaining power to impose contractual restrictions on its purchasers, and those contractual restrictions may well float  along with the product and be enforceable…it’s not a known certainty, but it’s also not all that exhausting.

If you have questions about copyrights or other related intellectual property issues, please contact Gregory J. Winsky or a member of Archer & Greiner’s Intellectual Property Group in Haddonfield, N.J., at (856) 795-2121, in Philadelphia, Pa., at (215) 963-3300, in Princeton, N.J., at (609) 580-3700, in Hackensack, N.J., at (201) 342-6000, or in Wilmington, Del., at (302) 777-4350.

DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal or tax advice, and may not be used and relied upon as a substitute for legal or tax advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or tax practitioner licensed to practice in the jurisdiction where that advice is sought.

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[1] In Kirtsaeng, a foreign student attending Cornell, on learning that Wiley’s copyrighted textbooks were much more expensive to buy in the United States than at home, began importing textbooks from home to be sold domestically at huge profits. While Wiley’s copyright infringement action against the wily importing book reseller was successful at both the district and appeals courts levels, the Supreme Court reversed, extending the rule of first sale exhaustion of copyright rights, theretofore applied only to domestic sales, to foreign sales as well.

[2] Sir Edward Coke (b.1552-d.1634)  having been, during his long and illustrious legal career, Chief Justice of The Common Pleas in England, may be best known for an aphorism engraved to encircle the entrance to the law library of a great American law school (and, as a result,  engraved forever in the hearts of many a  bleary eyed student trudging thereunder): “The Knowne Certaintie of the Law is the Saftie of All.”

[3] See  the last page of the opinion of the Court. See also https://en.wikipedia.org/wiki/Remora

Click here to view printable PDF

David A. Schneider Presented Real Estate Tax Assessment Seminar to City of Philadelphia Law Department

 From left to right:  Valerie Robinson, Chair, Corporate & Tax Group, City of Philadelphia Law Department; David Schneider, Partner, Archer; Drew Aldinger, Senior Attorney and Counsel, City of Philadelphia Office of Property Assessment; James Zwolak, Divisional Deputy City Solicitor, City of Philadelphia Law Department; Christine Bak, Senior Attorney, Corporate & Tax Group, City of Philadelphia Law Department.

 David Schneider, a Partner in Archer’s Real Estate Tax Appeal Group, recently presented the program, “Philadelphia Real Estate Tax Assessments 101” to the City of Philadelphia Law Department. Drew E. Aldinger, Senior Attorney and Counsel to the City of Philadelphia Office of Property Assessment, presented along with Mr. Schneider.

The presentation addressed hot button real estate assessment topics in Philadelphia, including the reassessment process and its impact on various property types, real estate tax exemptions, and tax abatements and PILOT programs. The presentation also addressed issues of uniformity and non-discrimination in real estate assessment and taxation, real estate tax appeal law and procedures, and school district reverse appeals.

The School District of Philadelphia took approximately 149 “reverse” appeals challenging the tax year 2017 assessments of approximately 149 commercial properties. Most of these appeals are pending in the Court of Common Pleas of Philadelphia County. The Philadelphia Office of Property Assessment is currently implementing a 2018 reassessment of 65,000 commercial, industrial and institutional properties in Philadelphia. It expects the reassessment to result in additional taxes of approximately $118 million.  

The 2017 reverse appeals and 2018 reassessment could significantly impact property taxes. Taxpayers in Philadelphia should evaluate the potential tax increase or reduction, and take the necessary steps to protect their rights to uniformity in assessment, and equality and fairness in taxation.

Mr. Schneider handles valuation related litigation, including complex commercial and industrial tax appeals in Pennsylvania, New Jersey and throughout the East Coast region. Additionally, he advises clients regarding potential real estate tax liability for property being considered for purchase and/or development. He is also a Pennsylvania State Certified General Real Estate Appraiser.

Archer & Greiner, P.C. is a full-service regional law firm with more than 175 lawyers and eight offices in Haddonfield, Hackensack, Princeton, Flemington and Red Bank, N.J.; Philadelphia, Pa.; New York, N.Y.; and Wilmington, Del. The firm has been serving Fortune 100 clients, small to medium-sized businesses and individuals for 85 years. Each  office  provides full-service litigation and transactional capabilities in nearly every area of law, including corporate, estate & trust, family & matrimonial, labor & employment, litigation, medical & personal injury, and real estate services. For more information, visit www.archerlaw.com.

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Kimberly A. Capadona Appointed as President of Seton Hall Alumni Board of Directors

Kimberly Capadona, a Partner in the firm’s Hackensack office, was recently appointed to serve as President of the Seton Hall University Alumni Board of Directors. Ms. Capadona will serve a 2-year term, effective July 1, 2017. As President of the Board, Ms. Capadona will serve as the Board’s primary liaison to the Department of Alumni Relations, the University administration, and to the University’s Board of Regents. She will act as Chair for all Board of Directors meetings and Executive Committee meetings, and will serve on the University’s Board of Regents.

The Seton Hall University Alumni Board of Directors is committed to supporting the Department of Alumni Relations mission of engaging the more than 100,000 Seton Hall undergraduate and graduate alumni in increasingly meaningful ways. An all-volunteer body, the Board provides advice, assistance and advocacy to the Department of Alumni Relations. Its members work to participate in and promote alumni programs, services and benefits.

Ms. Capadona focuses her practice on all aspects of employment law and labor relations. Her broad range of experience includes nationwide representation of employers in wage and hour matters, injunctions, and employment discrimination claims involving sex, race, age, religion, handicap and sexual orientation. She regularly provides defense against actions for wrongful discharge, harassment, retaliation, breach of contract, violation of family leave, whistleblower and related torts. Ms. Capadona received both her Bachelor of Arts degree and Juris Doctor from Seton Hall University.

Archer & Greiner PC is a full-service regional law firm with more than 175 lawyers and eight offices in Haddonfield, Hackensack, Princeton, Flemington and Red Bank, N.J.; Philadelphia, Pa.; New York, N.Y.; and Wilmington, Del. The Firm has been serving Fortune 100 clients, small to medium-sized businesses and individuals for over 85 years. Each office provides full-service litigation and transactional capabilities in nearly every area of law, including corporate, estate & trust, family & matrimonial, labor & employment, litigation, medical & personal injury, and real estate services. For more information, visit www.archerlaw.com.

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Michael Wachtel Joins Archer & Greiner

Michael E. Wachtel has joined Archer & Greiner as an Associate in the firm’s Hackensack office. Michael focuses his practice in the area of commercial litigation and employment litigation in New Jersey and New York state and federal courts. He handles a variety of matters, including contract disputes, consumer fraud claims, franchise litigation, shareholder and partnership disputes, construction litigation, and appellate practice.

Prior to joining Archer & Greiner, Michael was an Associate with The Epstein Law Firm. He successfully defended and settled complex commercial litigation involving business partnership and contractual disputes.

Michael earned his law degree from Rutgers School of Law graduating in the top of his class. He received the Myron Harkavy Award for most promising trial litigator and served as business editor for the Rutgers Computer and Technology Law Journal. Michael was also a member of the Moot Court Board where he received best Baker Trial Brief.

Michael authored “Give Me Your PASSWORD because Congress Can Say So: An Analysis of Fifth Amendment Protection Afforded Individuals Regarding Compelled Production of Encrypted Data and Possible Solutions to the Problem of Getting Data from Someone’s Mind,” which was published in the Pittsburgh Journal of Technology Law and Policy.

After graduating from law school, Michael served as a Law Clerk to the Honorable Ann. G. McCormick in the Superior Court of New Jersey, Chancery Division. He is a Court Certified Mediator and has successfully mediated small claims and landlord/tenant disputes.

Archer & Greiner PC is a full-service regional law firm with more than 175 lawyers and eight offices in Haddonfield, Hackensack, Princeton, Flemington and Red Bank, N.J.; Philadelphia, Pa.; New York, N.Y.; and Wilmington, Del. The Firm has been serving Fortune 100 clients, small to medium-sized businesses and individuals for 85 years. Each  office  provides full-service litigation and transactional capabilities in nearly every area of law including corporate, estate & trust, family & matrimonial, labor & employment, litigation, medical & personal injury, and real estate services. For more information, visit www.archerlaw.com.

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Post 8

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