Quick Resolution of Alleged Patent Quota Whistleblower Case against L’Oreal

Judge Susan Wigenton of the Unites States District Court for New Jersey quickly dismissed a whistleblower wrongful retaliatory firing claim against L’Oreal. L’Oreal successfully moved for dismissal at the earliest stage in the litigation, before even answering the Plaintiff’s complaint.  Judge Wigenton found that even assuming all the allegations alleged by the Plaintiff were true, there would not be a viable cause of action for wrongful retaliatory firing.The Plaintiff, Steven J. Trzaska, was a patent attorney employed by L’Oreal in its Clark New Jersey facility until December 2014.  Mr. Trzaska was employed by L’Oreal for 10 years and oversaw the Clark facility’s patent application process.  Trzaska’s complaint alleged that L’Oreal had a yearly quota of 500 patent applications and failures to meet quotas would negatively affect “careers and/or continued employment.”  Trzaska’s group filed only half of its quota of patent applications in 2014.  Trzaska informed his superiors that “neither he nor the patent attorneys who reported to him were willing to file patent applications that the attorneys believed were not patentable . . . solely for the purpose of meeting” quotas.   The complaint alleged that Trzaska believed that he would “run afoul of ethical and legal mandates governing their practice as patent attorneys” by filing certain applications

 

The New Jersey Legislature enacted the whistleblower statute, formerly known as the Conscientious Employee Protection Act (“CEPA”), to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994).  Judge Wigenton found that the New Jersey Rules of Professional Conduct for attorneys do not forbid L’Oreal from adopting metrics or measurable goals for its cosmetic business or define how L’Oreal may go about securing or maintaining intellectual property rights. Furthermore, the Court found that CEPA protections come into effect when “a reasonable lay person would conclude that illegal activity was going on or at the very least, is imminent”  and it “is not enough to claim that a policy may, possibly, at some time in the future, violate a rule or law.”  Judge Wigenton held that pressure from management to meet a quota is not equivalent to instructions to violate rules of attorney conduct, or other laws or regulations.  Therefore, no CEPA violation occurred and the complaint was dismissed.

The Intellectual Property Department and the Employment Law Department at Bathgate, Wegener & Wolf counsels employers and employees regarding IP issues and their effect on the employment relationship. Please contact us at 732-363-0666 with any questions that you may have.

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Ferries or Tunnels 

Historically New Jersey has been linked to Manhattan and Staten Island by ferries.  With the advent of rail and trans-Hudson tunnels that historic ferry network was abandoned.  During the past decades ferry service between Manhattan and New Jersey has been restored.  Today trans-Hudson ferry service and service from Monmouth County, New Jersey have been firmly established.  Those ferry routes have become very successful.Exasperated with delayed trains and time wasted in traffic congestion, commuters have ardently embraced ferries.  Travel by ferry is much more comfortable then the alternatives provided by trains, buses and cars.  More importantly, ferry arrival times are more consistent because those boats are not delayed by the conditions that make road and highway travel so prone to congestion and delays.

For a fraction of the time it will take to plan, design and build a new rail tunnel additional ferry service between New Jersey and Manhattan can be operational.  Very importantly, ferries provide the type of redundancy that is necessary during interruptions in rail and road travel.

A ferry terminal can serve as the center for a transit village. The fact that a ferry terminal can serve as a redevelopment catalyst for underdeveloped or brownfields properties has been acknowledged by several municipalities and regional planning organizations.

William J. Wolf of Bathgate Wegener & Wolf, P.C. has been retained by the Borough of Carteret in Middlesex County to represent it in initiating ferry service between Carteret and Manhattan.  Because Carteret controls a significant portion of its waterfront, it is uniquely situated to provide ferry service as a viable alternative to rail and highway access to Manhattan not only to its residents but to travelers who would otherwise commute by car, train or bus.  It is anticipated that ferry service will act as a catalyst for the redevelopment of the Carteret waterfront.

The Carteret ferry project is only one of several municipal infrastructure and redevelopment projects that Mr. Wolf has been retained to handle.  In addition to the ferry project, Mr. Wolf is currently working on a municipal marina, airport and commercial redevelopment projects in Middlesex County and Monmouth County.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Public Project Facilitator

Public projects, including ones undertaken by the New Jersey Department of Transportation (“NJDOT”), can have significant public impacts.  Construction of even a simple NJDOT project can involve areas of public concern such as temporary disruptions of existing travel patterns and environmental impacts.Because of the varied interests that can be impacted by NJDOT projects, it is necessary to solicit public comment and to keep the public informed as the design and construction of the project progresses. To ensure adequate dissemination of information and to encourage public input, it is frequently necessary for the sponsor of a project to engage a project facilitator.  The role of a public facilitator is multifaceted and includes disseminating critical project information by publishing public notices, devising a public information center and organizing public meetings.  At various steps in the project schedule a project facilitator arranges various opportunities for the project sponsor and NJDOT to solicit public comments on the benefits associated with the project, the design of the project, alternative analysis and societal impacts.  Utilizing various modes of communication the public facilitator is able to generate the depth of public involvement that is necessary to cause transportation projects to reflect societal needs and perspectives.William J. Wolf, of Bathgate Wegener & Wolf, P.C. has many years of experience guiding project sponsors through NJDOT project development that included public dissemination of project information associated with the role of project facilitator.  Mr. Wolf’s many years of experience with NJDOT projects has given him broad insights into the dissemination of information associated with the role of a project facilitator for NJDOT projects.  If a project is being undertaken that can benefit from the broad dissemination of information to facilitate public education and comment Mr. Wolf can be contacted at 732-363-0666 or wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America.  Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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Legislative Update – New Expungement Law

Governor Chris Christie recently signed into law a measure designed to ease the path toward expungement of certain criminal records.  The new law shortens the waiting periods for expungement of criminal records and makes various changes to other expungement procedures and requirements.Under the new law, a person convicted of a crime is permitted to file an expungement petition, which may include additional, separate petitions seeking to expunge up to two other convictions for disorderly persons or petty disorderly persons offenses.  The application can be filed after the expiration of 5 years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.  Previously the waiting period to file an expungement petition with respect to a crime was 10 years.A person convicted of a disorderly persons or petty disorderly persons offense, but not convicted of a crime, may apply for expungement after the expiration of 3 years from the date of the person’s most recent conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration.  Previously the waiting period to file an expungement petition with respect to disorderly persons and petty disorderly persons offense was 5 years.

A person arrested or charged with a crime, disorderly persons offense or petty disorderly persons offense but not convicted may have all records and information relating to the arrest or charge expunged immediately by the Superior Court.  A person seeking expungement of Municipal Court charges is not required to pay a fee for the expungement application.

A person who is, or was prior to the effective date of this new law, sentenced to the State’s Drug Court Probation Program and who successfully completes the Program may have all records and information relating to prior arrests, detentions, convictions, and proceedings for any offense set forth in the Criminal Code, Title 2C of the New Jersey Statutes expunged.

This legislative update is only meant to summarize this new law.  There are many nuances and details within the new law that are not identified or described within this update.  If you have ever been convicted of a crime, disorderly persons or petty disorderly persons offense, if you’ve been successfully discharged from the State’s Drug Court Probation Program, or if you have ever been arrested or charged with an offense that did not result in a conviction or finding of guilt, contact this office for a free consultation regarding the expungement of your records.

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Contract Trumps Patent

​The New Jersey Appellate Division concluded that a settlement agreement and concurrent covenant not to sue precluded a patent owner from asserting additional independent patent infringement claims. (Grayzel v. Boston Scientific Corp, A-0991-14T2 (App. Div. Jan. 11, 2016))  Dr. Joseph Grayzel invented a balloon catheter used prominently in cardiac surgery.   Dr. Grayzel received a patent for his innovation (Patent No. 4,796,629), which he then successfully asserted against Boston Scientific Corp.  In 2003, Dr. Grayzel and Boston Scientific settled their patent litigation, resulting in payment of royalties to Dr. Grayzel. 

 

The settlement, however, was not the end, but merely the end of the beginning of the dispute between patent holder (Dr. Grayzel) and the infringer (Boston Scientific).  Dr. Grayzel obtained a second patent for improvements to his balloon catheter in 2010 (Patent No. 7,662,163).  Boston Scientific also developed a new product in the intervening years, which Dr. Grayzel asserted infringed on his latest patent.  Absent additional facts, Dr. Grayzel would be well within his rights to assert a second patent infringement action against Boston Scientific.  Either a new patent or a new product can lead to new patent infringement action unless there is an agreement otherwise providing.
 
But here there was an “agreement otherwise”.  In the “covenant not to sue” between the patent holder and infringer, Dr. Grayzel gave up any right to sue “for infringement by any Cutting Balloon Product sold by” Boston Scientific.  The agreement went on to define “Cutting Balloon Product” very broadly and did not limit it to products in existence at the time of the agreement.  Nor was the agreement limited to infringement under the first patent.  According to the Appellate Division, Dr. Grayzel signed an open ended covenant not to sue that precluded him from bringing any future patent infringement actions against Boston Scientific.
 
Because Dr. Grayzel contracted away his rights in the 2003 settlement, he was unable to assert his rights when a new infringement began.  Absent his agreement, the patent infringement action could have proceeded.  Boston Scientific saved the expense of a long patent infringement action as well as large potential damages by drafting a smart, forward-thinking settlement agreement. 
 
The Intellectual Property team at Bathgate, Wegener, & Wolf P.C. emphasizes similar long term strategy and thought in the representation of our clients. Contact us today at 732-363-0666