Themes from American Health Law Association’s 2023 Institute on Medicare and Medicaid Payment Issues

I am fresh back from Baltimore, Maryland, where I was on the faculty of AHLA’s annual Institute on Medicare and Medicaid Payment Issues. I have been on the faculty of this program for a dozen years, and am always thrilled to hear the latest in healthcare payment and reimbursement changes and trends. This year I spoke on Medicare policies on hospital co-location, and presented along with the person who oversaw development of the government policy, David Wright, Director of the Quality, Safety & Oversight Group of the Centers for Medicare & Medicaid Services.

Ninth Circuit Reaffirms That Parties Can Contractually Shorten Statute of Limitations Period for Copyright Infringement Claims

The Ninth Circuit recently addressed the issue of whether parties can contractually agree to shorten the statute of limitations period for bringing a copyright infringement claim. In an unpublished opinion in the case, Evox Productions, LLC v. Chrome Data Solutions, LP (filed Feb. 10, 2023), the Ninth Circuit held that the trial court had properly enforced contractual provisions to find that the Plaintiff’s copyright infringement claims were barred by the agreed-to shortened, statute of limitations period.

Fair Workweeks for Retail Workers in Los Angeles

The city of Los Angeles recently passed the Los Angeles Fair Work Week Ordinance, which largely stemmed from the findings as to unpredictability of work schedules in the retail industry. Specifically, it was determined that approximately “77 percent of retail workers receive less than one week notice of their schedules or changes to their schedules” and that such unpredictability created extensive socioeconomic burdens on workers of large retail businesses. The Ordinance can be found here.

The Battle Over the COVID-19 Vaccine Continues

I recently wrote about the patent infringement lawsuit filed by Moderna against Pfizer/BioNTech over the COVID-19 vaccine. In its complaint filed in federal district court in Boston last August, Moderna alleged that Pfizer/BioNTech infringed three of Moderna’s patents in developing the Pfizer/BioNTech COVID-19 vaccine. Moderna seeks damages only for the time period after March 8, 2022, when Moderna announced that it would begin to enforce its patents after holding off doing so for 15 months while the pandemic was raging. The amount of money at stake is high. Pfizer/BioNTech sold over $26.4 billion of the vaccine in the first nine months of 2022; Moderna sold over $13.5 billion of its vaccine during the same time.

Impact of the NLRB’s McLaren Macomb Decision on Confidentiality and Non-Disparagement Provisions in Severance Agreements

Section 7(a) of the NLRA Applies to More Than Just CBA Employees

In general, Section 7 of the National Labor Relations Act (“NLRA”) provides employees nationwide with certain rights relating to organizing with other employees and collective bargaining, whether or not they are subject to collective bargaining agreements (“CBAs”). These rights include the right to self-organize; join or assist labor organizations; cooperate in NLRB investigations; and engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, including criticizing employer policies and discussing severance, wages and other terms and conditions of employment with co-workers and former co-workers.

District Court Finds Use of a Method to Manufacture a Product Does Not Indirectly Infringe a Patented Method to Design A Product

In Bell Semiconductor, LLC v. Omnivision Technologies, Inc., 8-22-cv-01979 (CDCA Mar. 1, 2023)( John A. Kronstadt), the Court granted the Defendant’s motion to dismiss Plaintiff’s indirect patent infringement claims for failure to sufficiently allege Defendant “made” the accused product. Plaintiff had argued that using the patented methods in the design process, which guides the subsequent manufacturing process, is sufficient to state a claim. However, the Court held the Plaintiff provides no authority supporting the contention that the use of a method to design a product is the same as the use of a method to manufacture the product, as contemplated by the statute. 

The Court found Plaintiff’s allegations sufficient to allege direct infringement of a method claim because they are based on the theory that Defendant infringes the method when using the Accused Processes to design the exemplary devices and not that the devices themselves later infringe the method claim. However, in contrast, the Court also found the allegations do not meet the standard for pleading indirect infringement.

Happy International Women’s Day – Now Wait Another 300 Years for Equality! Wait, What?

That’s right, you read it correctly, another 300 years!  The United Nations Secretary General told the Commission on the Status of Women on March 7, 2023, that gender equality is “300 years away.” The statement was based on statistics from UN Women, an organization dedicated to the study of the status of women and girls around the world, and the advancement of gender equality and empowerment of women. According to UN Women, girls and women represent half of the world’s population and, therefore, also half of its potential. However, statistics show that there is a long way to go to achieve full equality of rights and opportunities between men and women.

Getty Images Sues Stability AI for Copyright Infringement

Getty Images, a global visual content creator and leading source for visual content, has filed a lawsuit against startup technology company Stability AI for allegedly scraping more than 12 million photographs from Getty Images’ portfolio without consent or compensation. According to Getty Images, Stability copied Getty’s photographs with associated text and metadata to train its Stable Diffusion model, which uses AI to generate computer-synthesized images in response to text prompts. Getty Images alleges that Stability’s actions constitute copyright infringement, false copyright management information, removal or alteration of copyright management information, trademark infringement, unfair competition, trademark dilution, and deceptive trade practices under Delaware law.

The DOL Issues New Guidance Applying the FLSA and FMLA to Remote Workers

On February 9, 2023, the U.S. Department of Labor (“DOL”) issued  Field Assistance Bulletin 2023-1 (the “FAB”), which directs agency officials responsible for enforcement on the application of the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”) to teleworking employees. This guidance provides valuable insight to employers on the DOL’s interpretation of various issues, including: (1) compensation of teleworking employees under the FLSA, (2) protections for nursing employees when working remotely, and (3) eligibility rules for teleworking employees under the FMLA. The purpose of the new guidance seems to be aimed at reminding employers that employees who telework remain covered by the protections of both the FLSA and the FMLA.