• INTELLECTUAL PROPERTY LAWS

United States Court of Appeal for the Third circuit.

Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

Barefoot Architect Inc. Vs. Sarah Bunge; Thomas.F. Friedberg; Tracy Roberts; Springline Architects, L.L.C. submitted pursuant to Third Circuit L.A.R. 34.1(a) (Decided on 16.12.2010)

Infringement of copyright- cross-appeals -Defendants formed a corporation, Barefoot Architect, Inc., for his architecture practice-Appellants availed his services and had paid a lump sum-Contingent additional services demanded which was refused by the Appellants-Architectural services suspended-Appellants hired Tracy Roberts of Springline Architects, LLC to replace Barefoot and to finish the project-Hence the suit-Ownership of a copyright -Summary judgment granted by the District Court with respect to the Copyright Act and Lanham Act claims-Copyright claim dismissed on the ground that it lacks standing to assert a copyright infringement action- Transfer of rights occurred orally through the Memorandum of Transfer - Barefoot failed to raise a triable issue of fact as to whether the alleged oral transfer ever occurred.

Held: District Court's judgment as regards the summary judgment motion on the copyright claim affirmed but the Court vacates the District Court's Rule 12(b)(6) dismissal of the tortious-interference-with-contract counterclaim and its dismissal of the breach of contract and of fiduciary duty counterclaims. Furthermore these counterclaims are remanded for consideration on the merits.

United States Court of Appeals for the Federal Circuit

Before RADER, Chief Judge, LINN and DYK, Circuit Judges

ILLOR, LLC Vs. Google Inc. 2010 1117-1172 (Decided on 11.01.2011)

Infringement of '839 patent-ILOR alleged that the Google Notebook product infringed claim 26 of the '839 patent - Counter claim by Google seeking a declaratory judgment of non-infringement, invalidity, and unenforceability based on inequitable conduct - ILOR moved for a preliminary injunction-district court granted summary judgment on non-infringement and dismissed the suit with prejudice -ILLOR appealed-District Court did not err in denying injunction-After disposition of that first appeal, Google moved to recover its attorneys' fees and costs and expenses under 35 United State Code Section 285-Google has not met its high burden to show by clear and convincing evidence that this suit was brought frivolously.

Held- The award of expert fees under Section 285 cannot be awarded but recognize that a court can invoke its inherent power to award such fees in exceptional cases based upon a finding of bad faith. Here there is no basis for finding bad faith, thus the award of expert fees is set aside-Hence reversed and remanded.

United States Court of Appeals, Eight Circuit

Before Riley, Chief Justice, Melloy and Gruender, Circuit Judges

WWP Inc. Vs. Wounded Warriors Family Support Inc. 2010-1794 (Decided on 12.01.2011)

Deceptive Trade Practices-Unjust enrichment claims-Usage of a website to solicit donations intended for WWP, in violation of Nebraska laws- Appellee founded WWP to deliver backpacks stocked with care and comfort items to the nearby military hospitals-Appellant founded Wounded Warriors Family Support Inc.-Appellant's website was similar to WWP's webpage and listed the latter as pass through charities-Large number of cheques intended for WWP was cashed by Wounded Warriors Family Support Inc.-Issuance of preliminary injunction against Wounded Warriors Family Support Inc.-Jury awarded $425,000 on WWP's Nebraska Consumer Protection Act claims.

Held-Granting of an award is not unreasonable as the dollar amount of damages done to reputation and goodwill cannot be calculated but that does not bar relief being provided to the plaintiff from the wrongdoer. Hence dismissal of the preliminary injunction appeal affirming the rest of the judgment.

-United States Court of Appeals for the Federal Court

Before Newman, Bryson, and Prost, Circuit Judges.

Warrior Sports Inc. v Dickinson Wright, P.L.L.C., 2010-1091(Decided on 11th January 2011)

Patent infringement-Circumstances under which a federal district court has subject-matter jurisdiction over a claim for legal malpractice arising out of a patent dispute- Warrior Sports, Inc., a patent owner, filed a malpractice action against the law firm of Dickinson Wright, P.L.L.C. -District Court regarded Warrior's claims as raising only state law issues and therefore dismissed the action for lack of subject-matter jurisdiction- Under section 1338 of 28 United States Code.

Held-When"proof of patent infringement is necessary to show [Plaintiff] would have prevailed in the prior litigation, patent infringement is a 'necessary element' of malpractice claim and therefore apparently presents a substantial question of patent law conferring Section 1338 jurisdiction". Because Warrior's first claim arises under patent law, there is no need to address its other claims, all of which are before the District Court as a matter of supplemental jurisdiction in light of the court's jurisdiction over the first claim. Therefore dismissal order of the District Court is vacated and remanded for further proceedings.

• INSURANCE LAWS

United States Court of Appeals, Fifth Circuit

Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.

VRV Development L. P. Vs. Mid Continent Casualty Company No. 10-10123 (Decided on 07.01.2011)

Refusal to defend and indemnify Plaintiffs-Plaintiffs entered into a contract to develop residential plots-VRV Inc. purchased a commercial general liability policy from Mid-Continent-"named insured," and its form of business was identified as a "corporation"-VRV Inc. converted into a Texas limited partnership, VRV L.P.- walls collapsed, damaging the four homeowners' backyards and undermining support for a public utility easement owned by the City of Dallas- Sued for negligence and breach of contract-Defense and indemnity demanded from Mid-Continent but refused- Summary judgment granted to Mid-Continent.

Held- Although the alleged property damage to the retaining walls occurred during the policy period, this damage is excluded from the CGL policies as they protect an insured when his work damages another's property but does not serve as "a performance bond covering an insured's own work" and because this property damage did not occur during the policy period, it does not trigger Mid-Continent's duty to defend. Also there is no evidence of a covered occurrence of proAperty damage within the effective period of the CGL policies without which there is no possibility that Mid-Continent will ultimately have a duty to indemnify VRV. Hence Mid-Continent was entitled to summary judgment on VRV's claims for defense and indemnity.

United States Court of Appeals,Seventh Circuit.

Before EASTERBROOK, Chief Judge, and KANNE and SYKES, Circuit Judges.

Greenberger Vs. GEICO General Insurance Company No. 09-1603 (Decided on 10.01.2011)

Motor Vehicles accident- Damage estimated and claim received from Insurance company- Appellants car was damaged in an accident, and the next day his insurer estimated the damage and wrote him a check to cover his claim which was accepted- Car not repaired and donated to charity- Violation of the promise to restore the policyholder's vehicle to its preloss condition- Alleging breach of contract and consumer fraud - The suit was filed as a class action- Insurance company removed it to Federal Court under the Class Action Fairness Act, 28 U.S.C. § 1332(d)- district court sidestepped the class-certification question, dismissed the statutory consumer-fraud claim, and then entered summary judgment for the Defendants on the breach-of-contract and common-law fraud counts- whether the district court's failure to certify a class has any effect on federal jurisdiction-Cunningham Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806 (7th Cir.2010)- federal jurisdiction under CAFA does not depend on class certification.

Held, a claim for fraudulent concealment requires a duty to disclose material facts, and there is no such duty here. Furthermore the Appellant has failed to identify any fraudulent act distinct from the alleged breach of contrac. A duty to disclose arises only when the parties have "a special or fiduciary relationship, which would raise a duty to speak" for which the Plaintiff has the burden to plead with specificity and prove by evidence the existence of a fiduciary relationship. Here the Appellant has not satisfied this burden and since i nsurers ordinarily are not fiduciaries, accordingly, Defendant had no duty to disclose. For this additional reason, summary judgment on the common-law fraud claim was appropriate.

United States Court of Appeals, Seventh Circuit.

Before EASTERBROOK, Chief Judge, and POSNER and TINDER, Circuit Judges.

Wegman Construction Company Vs. Admiral Insurance Company No. 09-2022 (Decided on 14.01.2011)

Liability for damages in excess of the policy limit-Issuance of a liability insurance policy-Defendant insurance company, Admiral, issued a liability insurance policy that provided a $1 million ceiling on coverage for a single occurrence -A worker at a construction site managed by the Appellant Company was injured in a fall and sued the Appellant for negligence- Wegman then filed the present suit- Had the Defendant discharged the implied contractual duty of good faith that insurance companies owe their insurers, Appellant would not have been liable for the excess amount-Motion to dismiss, granted by the district court to the Defendant.

Held, the loss of an opportunity to trigger excess coverage is not the kind of loss that the duty of good faith is intended to prevent, and so that duty was not breached by the Defendant. But when a conflict of interest arise, the hiring of his own lawyer to defend for himself is only one option that is opened up to him. Another is to seek additional coverage from another insurance policy; and that alternative was foreclosed by the failure of notice assuming. Appellant was indeed innocently ignorant of the substantial risk of excess liability and the merits of the Appellant's claim remain to be proved. But dismissal of the complaint was premature. The judgment is therefore reversed and the case remanded for further proceedings.

• TAX LAWS

United States Supreme Court

Madison County New York Vs. Oneida Indian Nation of New York No. 10-72. (Decided on 10.01.2011)

Petition for Writ of Certiorari-Sovereign immunity to enforcement of real property taxation-Whether barred and whether the ancient Oneida reservation in New York was disestablished- Oneida passed a tribal declaration and ordinance waiving "its sovereign immunity-Petitioners questioned the validity, scope, and permanence of that waiver.

Held, the writ of Certiorari is vacated and the judgment is remanded to the United States Court of Appeals for the Second Circuit where the court should address whether to revisit its ruling on sovereign immunity in light of the new factual development, and if necessary proceed to address other questions in the case consistent with its sovereign immunity ruling.

United States Court of Appeals, Seventh Circuit

Before CUDAHY, ROVNER, and EVANS, Circuit Judges.

Heyde Vs. Pittenger No. 09-1388 (Decided on 11.01.2011)

Property's assessment at levels grossly disproportionate to its fair market value-Deprived Appellant of his equal protection rights- District Judge granted the Board of Review's motion, finding they had absolute immunity-Appellant's claims to be premature under principles of comity-The judge accordingly dismissed Appellant's case- On appeal Appellant argued that the Board of Review members were acting in an investigatory capacity, and therefore should not be granted absolute immunity.

Held, the actions of the Board of Review members are quasi-judicial in nature and they are accordingly entitled to absolute immunity. Moreover, the District Judge properly dismissed without prejudice Appellant's claims against the Assessors citing principles of comity. The judgment is therefore affirmed.