Electronic Health Records
November 29, 2006
While it's hardly the case that physicians are using electronic health records (EHR) in legion, it is the case that more than in previous times are implementing EHR technology in their practices. One result: A long-time-coming investment by physicians in technology to try to capture the practice and patient-care enhancements that futurists and other advocates of e-medicine in various forms have predicted.<br>Another result: Physicians and counsel representing them are being brought into the expanding scope of electronic discovery by confronting e-discovery while defending medical malpractice claims.
ERISA Amendments Effective Dec. 31
November 29, 2006
On Sept. 26, the Employee Benefits Security Administration of the Department of Labor (department) issued proposed regulations implementing amendments to ' 404(c) of the Employee Retirement Income Securities Act of 1974, as amended (ERISA).(The proposed regulations are at 29 CFR ' 550.404c-5.) These amendments were made by ' 624 of the Pension Protection Act of 2006 (the act) and provide relief to fiduciaries of participant-directed individual account plans where, in the absence of investment directions from a participant, the plan invests such participant's assets in a 'qualified default investment alternative.'
Mobile e-Discovery Can Keep Secrets Secret
November 29, 2006
Fulfilling a discovery request is a huge challenge for any company ' the stress of litigation, the expense of dredging through gigabytes and even terabytes of documents and files, and the disruption to every businessperson who may have sent an e-mail about the matter in contention can make for a difficult situation in the best of circumstances. But there are also security concerns. As a corporation's information is moved around, restored and sent to and from outside counsel, highly sensitive trade secrets and private data may be at risk every time discovery materials leave corporate offices.
Health Plans and Birth Control
November 29, 2006
In last month's issue, we discussed the fact that the New York high court upheld a law requiring health plans to offer birth control. We discussed how non-believers are affected, and outlined defence to legislature. This month's article concludes the discussion.
NLRB Rulings Regarding Supervisors
November 29, 2006
Before the National Labor Relations Board (NLRB) issued its recent decisions in the Kentucky River cases, union leaders and activists predicted dire consequences ' potentially stripping millions of workers, especially in the healthcare industry, of their rights to join a union. Unions, which are trying to attract more employees to their ranks, staged rallies and other events to draw attention to these cases. But the decisions did not dramatically redraw the lines for determining which workers are considered supervisors and which are not. Instead, they provided guidance that will be helpful to employers and unions alike in determining the status of workers whose classification falls into the gray area between supervisor and employee. The analysis remains highly fact-specific and appears unlikely to create the dramatic effects predicted.
Why Assess Evidence-Collection Practices?
November 29, 2006
Electronic discovery is much on many practitioners' minds these days. And for good reason. A huge component of e-discovery relates to electronic files that employees of companies and other business entities create and store every day, and the list of items made, manipulated and maintained that could cause problems in discovery and later in court is legion ' e-mails, Word documents, spreadsheets, presentations and more. <br>And most often, it is inadvertent spoliation or omission of such files in discovery that results in sanctions and, in some case, default judgments.<br>That's why developing a sound methodology for identifying, preserving and collecting files from personal data repositories is a key component of becoming litigation-ready, and a main plank in the platform of adequate preparation, defense and a proactive approach to managing e-discovery issues.
Exploring the Law of Embodiments After Phillips
November 28, 2006
The decision by the Federal Circuit in <i>Phillips v. AWH Corp.</i>, 415 F.3d 1303 (Fed. Cir. 2005) (en banc) in July 2005 reaffirmed and amplified many of the court's prior decisions addressing various aspects of patent claim construction. In particular, it emphasized the critical role of the specification in determining what the claim means and stated that the specification 'is the single best guide to the meaning of a disputed term.' While the specification provides a number of sign posts or guides to interpreting a claim, one of the most important considerations is whether and how the patentee may have limited the invention to certain embodiments or may have distinguished the invention from prior inventions. It is important, therefore, for both patent prosecutors and litigators to understand how the Federal Circuit has approached the issue of limiting claims in a post-<i>Phillips</i> world based on the embodiments disclosed in the specification.
Be Wary of What You Ask for: The Dangers of Improper Claim Drafting
November 28, 2006
Some inventions are easily characterized as a pure process, machine, manufacture, or composition of matter and lend themselves to a single independent claim and a simple set of dependent claims. Many inventions, however, involve two or more of the statutory categories of subject matter, and require several independent claims, often creatively drafted, with mapped sets of dependent claims for complete coverage. Can a claim that straddles the line between the statutory categories of subject matter or that does not technically distinguish the invention from other claims be found invalid as an improperly drafted claim?
Developments of Note
November 28, 2006
Recent developments in e-commerce law and in the e-commerce industry.
