UPDATE: COVID-19 Effect On Civil Litigation

Author:

allie humphreys

Alexandra “Allie” E. Humphreys

Associate

540.438.5325
ahumphreys@wawlaw.com

 

UPDATE: On May 6, 2020, the Virginia Supreme Court (SCOVA) entered an order extending the current judicial emergency (discussed in our previous blog posts) through June 7, 2020. Like the previous Emergency Declaration orders, the May 6 Order tolls statutes of limitation and other case-related deadlines for the period of the judicial emergency (now through June 7). However, the May 6 Order provides an exception for discovery, ordering the tolling of discovery deadlines in civil cases to terminate on May 18, 2020. In practice, this means that all civil discovery with a deadline that fell between March 16 and May 18 is now due within 21 days of May 18. The May 6 Order also authorizes individual state courts, in their discretion, to resume in-person, non-emergency civil hearings where it is deemed safe. However, the May 6 Order takes a hardline stance on jury trials, forbidding all jury trials through June 7. As with the previous Emergency Declaration Orders from SCOVA, the May 6 order left open the possibility for the judicial emergency period to be further extended.

UPDATE: Impact of COVID-19 on USPTO and IP Practice

Author:

ginger chapman

Ginger T. Chapman
Associate

540.438.5368
gchapman@wawlaw.com

Update: On April 28, 2020, the United States Patent and Trademark Office (USPTO) extended certain patent and trademark deadlines to June 1, 2020. In accordance with their temporary authority under the CARES Act, the USPTO further extended the time to file certain patent and trademark-related documents and to pay certain required fees which otherwise would have been due between March 27 and May 31, to June 1, 2020. This is in addition to the prior extension the USPTO had announced on March 31, 2020 as stated in our original blog posted on April 17, 2020.

The new Notice of Waiver of Patent-Related Deadlines and Notice of Waiver of Trademark-related Deadlines under the CARES Act supersedes the previously posted notices.

The Patent Notice details that the filing or payment must be accompanied by a statement that the delay in filing or payment was “due to the OCVID-19 outbreak” which is defined as “a practitioner, applicant, patent owner, petitioner, third-party requester, inventor, or other person associated with the filing or fee was personally affected by the COVID-19 outbreak, including, without limitation, through office closures, cash flow interruptions, inaccessibility of files or other materials, travel delay, personal or family illness, or similar circumstances, such that the outbreak materially interfered with timely filing or payment.” Responses and fee deadlines that may be extended include responses to Office actions, payments of issue fees, filings of notices of appeal and reply briefs, and payments of maintenance fees. Additional relief for proceedings before the Patent Trial and Appeal Board (PTAB) includes a 30-day extension of time for a patent owner preliminary response in a trial proceeding under 37 C.F.R. §§ 42.107 or 42.207, or any related responsive filings.

The Trademark Notice details that the extension of deadlines includes filing of responses to Office actions, filing of notices of appeal, filing statements of use, and filing notices of opposition. Requests or motions for an extension or reopening of time may be filed

The USPTO is open for the filing of patent and trademark documents and fees. The USPTO continues to “evaluate the evolving situation around the COVID-19 outbreak and the impact on the USPTO’s operations and stakeholders.”

Details of the latest extension and Notice(s) of Waiver may be accessed on the USPTO website.

UPDATE: The Coronavirus Aid, Relief, and Economic Security (CARES) Act

Author:

jim johnson

James “Jim” L. Johnson

Associate

540.438.5302
jjohnson@wawlaw.com

*CARES Act UPDATE: After a brief lapse of disaster relief appropriations, Congress on April 23rd, 2020 overwhelmingly passed legislation providing an additional $484 billion for small businesses and hospitals in the latest round of emergency aid to combat the economic fallout from the COVID-19 pandemic. The President is expected to quickly sign the package entitled the Paycheck Protection Program and Health Care Enhancement Act (PPPHCE) into law, which represents the fourth bill to move through Congress over the last two months to address the pandemic. PPPHCE is being referred to by the media and others as “Phase 3.5” or “COVID 3.5”.

The bill adds over $310 billion in new funds to the extremely popular Paycheck Protection Program (PPP). PPP provides forgivable loans to small businesses affected by the pandemic. Congress originally enacted PPP on March 27 when it passed the third relief bill, the Coronavirus Aid, Relief and Economic Security Act (CARES Act). PPP was originally funded with approximately $349 billion, and was quickly exhausted. Phase 3.5 expressly designates $60 billion of the $310 billion in PPP funds for small lenders and community banks.

Phase 3.5 also appropriates an additional $50 billion for emergency grants and loans through the SBA’s Disaster Loan Programs and an additional $10 billion for Emergency Economic Injury Disaster funds. For additional information on this legislation, see my previous article on how CARES Act revamped SBA’s important disaster loan program https://wawlaw.com/the-coronavirus-aid-relief-and-economic-security-cares-act/ .

Small businesses who need additional assistance or perhaps missed out on the initial relief are strongly encouraged to act quickly to acquire this additional disaster relief assistance. It is expected that the SBA will issue guidance within the next days so that lenders can begin accepting applications by the beginning of next week.

COVID-Related Nursing Home Litigation

Author:

allie humphreys

Alexandra “Allie” E. Humphreys

Associate

540.438.5325
ahumphreys@wawlaw.com

Nursing homes throughout the country have been deeply affected by the COVID-19 pandemic, making headlines as outbreaks wreak havoc within the facilities. Nursing homes have been hit particularly hard by the virus in large part due to nursing home demographics: elderly individuals, many with underlying health conditions, living in close proximity to one another creates a perfect storm of virus vulnerability. While some factors affecting the spread of COVID-19 in long term care facilities are inherent to the populations to whom these facilities cater, there are steps that nursing homes are required to take to prevent or slow the spread of the virus. Nursing homes are required to follow federal and state regulations specifically enacted to control the spread of infection. Those regulations include requirements that each facility develop and implement policies and procedures to prevent and control airborne and non-airborne infection transmission, train staff regarding infection control measures, ensure all medical equipment (including PPE) is either properly disposed (for single use items) or thoroughly disinfected between each use (reusable items).

Additionally, in the past few months, the Centers for Medicare & Medicaid Services (CMS) issued separate memoranda setting forth COVID-19-specific precautions for long-term care facilities. The memoranda recommended additional precautions and measures for infection monitoring and control, including restricting the admission of visitors, screening all residents and staff for COVID-19 symptoms and promptly isolating residents or staff members with suspected COVID-19 infections, and ensuring communication of status changes to resident representatives and/or family members. Nursing homes must follow applicable regulations and otherwise take reasonable steps to prepare for and prevent the spread of COVID-19 within their facilities.

Ordinarily, a nursing home may be civilly liable if it failed to take reasonable steps to prevent the spread of a communicable illness or infection in its facility, resulting in the serious illness or death of a resident. However, cases related to the spread of COVID-19 in nursing homes may prove much harder, if not impossible, to bring. So far, the governors in a minority of states have entered executive orders extending civil immunity to healthcare providers during the COVID-19 pandemic. While Governor Ralph Northam has not yet issued an executive order to this effect, there has been a strong push for the grant of such immunity in Virginia. On April 7, 2020, a group of medical organizations in Virginia sent a letter to the Governor, requesting the issuance of an executive order granting civil and criminal immunity to health care providers who act in good faith. If entered, the proposed order’s broad immunity would prevent virtually all medical negligence lawsuits where the alleged negligence occurred during the declared state of emergency.

Even if the proposed executive order is not entered, a patient or family member’s ability to sue a nursing home for COVID-19-related negligence may be limited in other ways. For example, a Virginia statute applicable to “disasters” provides liability protection to health care providers during state or local emergencies, if the emergency “renders the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency…” Va. Code 8.01-225.02. While this statute does not preclude COVID-19 related litigation against a nursing home in cases involving gross negligence or willful misconduct (higher levels of misconduct), it will likely prove extremely challenging to establish what constitutes gross negligence or willful misconduct in the face of an unprecedented pandemic.

While COVID-19 did not make an appearance in the central Virginia and Harrisonburg/Rockingham regions until nearly two months after the first COVID-19 case was confirmed in the U.S., it has since spread quickly in the area. As of early April, sources tracking the spread of the virus reported the number of confirmed cases growing at a rate of 690% per week in Harrisonburg. By mid-April, local news sources were reporting outbreaks in local long- term care facilities. The first reported COVID-19 outbreak in the US occurred at a long-term care facility in Kirkland, Washington and was widely reported by news sources, giving facilities in our area ample time to prepare for such an outbreak in their own facilities. Given the months of advance notice provided to nursing homes in our area, a facility’s failure to adequately prepare for such an outbreak may be harder to excuse.

If you believe you or a loved one has contracted COVID-19 at a nursing home due to the facility’s failure to follow applicable regulations and otherwise take reasonable steps to prevent the spread of COVID-19, you should contact an attorney specializing in medical malpractice and nursing home litigation to discuss your particular situation. However, as noted above, would-be litigants must understand that medical and nursing home negligence cases involving COVID-19 must be approached cautiously, and many of these cases will not be viable based on existing statutory restrictions and proposed grants of broad immunity.

UPDATE: COVID-19 Effect On Civil Litigation

Author:

allie humphreys

Alexandra “Allie” E. Humphreys

Associate

540.438.5325
ahumphreys@wawlaw.com

UPDATE: On April 10, 2020, the Virginia Supreme Court issued a memorandum stating that Virginia state court judges may, in their discretion and with the consent of the parties, conduct any civil or criminal matter by electronic video or telephonic communication. While this memorandum is certainly not a universal green light for all civil cases to resume, it at least opens the door to the possibility that certain civil matters can proceed, with the consent of the judge and the parties.

On April 22, 2020, the Virginia Supreme Court entered an order extending the judicial emergency, and the corresponding restrictions on Virginia state courts as outlined in our original blog post on April 10, 2020, through May 17, 2020. As with the first two Emergency Declaration Orders from SCOVA, the April 22 order left open the possibility for the judicial emergency period to be further extended.

Impact of COVID-19 on USPTO and IP Practice

Author:

ginger chapman

Ginger T. Chapman
Associate

540.438.5368
gchapman@wawlaw.com

HOW WILL COVID-19 AFFECT PATENT APPLICATIONS OR PATENT PRACTICE BEFORE THE U.S. PATENT AND TRADEMARK OFFICE?

During this ongoing global coronavirus outbreak, there is no aspect of professional or personal life that appears immune to the latest coronavirus (SARS-CoV-2), and the disease it causes, coronavirus disease 2019 (COVID-19).

On March 13, 2020, the President declared a national emergency under the National Emergencies Act as a result of the COVID-19 outbreak. Federal, state, and local governments are requiring or urging that people take measures such as quarantining themselves, voluntary or self-isolating, or social distancing. Government intellectual property Offices have also responded to the global health emergency by issuing guidance to provide notice to stakeholders of changes in practice and workflow due to COVID-19.

To mitigate the impact of this global health threat, The U.S. Coronavirus Aid, Relief, and Economic Security Act (CARES Act) has given the United States Patent and Trademark Office (USPTO) authority to extend statutory deadlines to help ease the burden of IP owners affected by COVID-19. The USPTO has implemented a number of measures in the wake of the COVID-19 health crisis in order to bring relief to patent and trademark applicants and owners facing business uncertainties and challenges meeting filing and response deadlines due to the pandemic.

On March 16, 2020, the USPTO announced that it considers the effects of the coronavirus to be an “extraordinary situation” within the meaning of 37 CFR 1.183 and 37 CFR 2.146 for affected patent and trademark applications, patentees, reexamination parties, and
trademark owners. The Director had determined that the COVID-19 emergency had prejudiced the rights of applicants, patent owners, or others appearing before the USPTO in patent matters.

Accordingly, a person who is unable to meet patent-related timing deadlines due to the COVID-19 outbreak may be eligible for a waiver of certain deadlines, as further described in the Official Notice of Waiver of Patent-Related Timing Deadlines under the CARES Act.

WHAT THIS MEANS FOR PATENT APPLICANTS OR PATENT OWNERS:

Most USPTO prosecution deadlines from March 27 to April 30, 2020 are eligible for a 30-day extension if filed with a statement that the delay is due to the COVID-19 outbreak and that some party associated with the prosecution was personally affected by the COVID-19 outbreak. In order to qualify, the relevant filing must be accompanied by a statement that the delay “is due to the COVID-19 outbreak” and that the party associated with the filing “was personally affected” by the COVID-19 outbreak.

Subsection (a) of the CARES Act lists prosecution documents included as eligible for a 30-day extension. Subsection (b) of the Act sets forth that the “party” associated with the prosecution includes practitioners, applicants, patent owners, third party requesters, inventors, or other person associated with the filing. The term “person” for purposes of patent ownership is presumably understood to include non-human corporate owner(s).

The “personally affected” clause of subsection (b) appears to be quite broad and includes office closures, cash flow interruptions, inaccessibility of files or other materials, travel delays, personal or family illness, or other non-listed reasons which caused the delay or resulted in the outbreak materially interfering with timely filling or payment.

THE EXTENSION DOES NOT INCLUDE:

The extension does not cover original filing deadlines, PCT or national stage filing deadlines, deadlines for filing a non-provisional application following a provisional; or a deadline for filing an inter partes review petition.

The USPTO has specifically stated that the Notice does not grant waivers or extensions of dates or requirements set by statute.

Before the signing of the CARES Act, the USPTO had not extended deadlines because most trademark and patent deadlines are set by statute; thus, the Director of the USPTO had no authority to extend deadlines. The Director did waive fees for petitions to revive applications or canceled or expired registrations where patent and trademark applicants or owners were unable to timely reply due to the COVID-19 outbreak.

TRADEMARKS:

On March 16, the USPTO released a notice explaining the process for waiving petition fees for trademark applicants and registrants seeking to revive abandoned applications or reinstate canceled or expired registrations resulting from missed deadlines due to COVID-19. When seeking a waiver the petitioner must include: (1) the appropriate Trademark Electronic Application System (TEAS) form for abandoned applications or canceled/expired registrations; and (2) a statement of how the failure to respond to the Office communication was due to the effect of the COVID-19 outbreak. For both trademarks and patents, the affected party must still submit the petition within a specified timeline, within two months of the issuance date of the notice or, if notice was never received, then within six months of the abandonment, termination, cancellation, or expiration date.

On March 31, 2020, the USPTO announced that various trademark filing and Trademark Trial and Appeal Board deadlines originally due between March 27and April 30, 2020 will be extended 30 days from the initial due date for those parties affected by the COVID-19 crisis. The extensions apply to, inter alia, responses to Office actions, statements of use, notices of opposition, priority filings, and renewal applications. The filing must be accompanied by a statement that the party associated with the filing was personally affected by the COVID-19 outbreak.

The USPTO has also waived the ordinary requirement of an original handwritten signature for certain correspondence such as registration to practice before the USPTO in patent cases, enrollment and disciplinary investigations, and disciplinary proceedings. The requirement is also waived for particular credit card payments such as those where payment is being made outside of the Office electronic filing system. Copies of handwritten signatures will be accepted until further notice.

PATENT TRIAL AND APPEAL BOARD (PTAB) AND TRADEMARK TRIAL AND APPEAL BOARD (TTAB):

In keeping with other courts and tribunals around the country, PTAB and TTAB meetings, including oral hearings and examining attorney interviews are being conducted via video or teleconference, allowing proceedings to otherwise continue during the COVID-19
outbreak.

THE USPTO IS OPEN FOR FILING:

The USPTO is open for the filing of patent and trademark documents and fees, as further detailed below.

Questions may be directed to Covid19PatentsRelief@uspto.gov or to the Office of Patent Legal Administration (OPLA) at 571-272-7704. Parties with official business before the USPTO should reach out to their points of contact within the Office with any questions.

COPYRIGHTS:

The U.S. CARES Act grants a similar authority to the U.S. Copyright Office to offer extensions. On March 31, 2020, the Copyright Office adjusted deadlines for 60 days for individuals affected by the COVID-19 crisis, including extending the three-month window to qualify for statutory damages to remedy copyright infringement in cases where the copyright owner is either unable to complete the electronic filing of their copyright application or cannot submit the required physical deposit due to COVID-19.

FOREIGN IP OFFICES

The European Patent Office (EPO), the World Intellectual Property Organization (WIPO), the European Union Intellectual Property Office (EUIPO), IP Australia, the German Patent and Trade Mark Office (DPMA), the U.K. Intellectual Property Office (UKIPO), the
Italian Patent and Trademark Office (IPTO), and the Indian Patent Office (IPO are some of the global IP Offices that have issued COVID-19 guidance. Please contact a Wharton Aldhizer & Weaver attorney to discuss the unique impact of changes made by foreign offices.

In view of the rapidly evolving responses to the COVID-19 disruptions, all parties to proceedings before the EPO, WIPO, or other government intellectual property Offices, should check the Office webpages on a regular basis for ongoing updates with respect to their
extensions of deadlines, workflow and practice during this unprecedented pandemic situation.

BEST PRACTICES:

The rules and guidance issued by the USPTO, courts, and agencies are continuously changing to meet the rapidly evolving situation with COVID-19. Practitioners and other parties associated with the filing before the USPTO should continue to make earnest attempts to meet current deadlines while noting any COVID-19 related delays or conditions broadly included in Subsection (b) personally affecting the parties associated with the filing.  Be prepared to carry out the majority of prosecution activities online and to participate in hearings, trials, and interviews electronically. Continually check the USPTO’s website for any changes to current regulations and to ensure you comply with current notices and guidance for rules and practices before filing. Be flexible; and recognize that the USPTO, courts, and clients will need to adapt to rapidly evolving circumstances and challenges during the COVID-19 pandemic. When in doubt, reach out to points of contact within the Office with any questions and to ensure that you include all necessary information, forms, and statements in your filings.

Attorneys at Wharton, Aldhizer & Weaver are available to assist with patents and to answer any questions on these matters.

Child Support & Coronavirus

The coronavirus (COVID-19) (“coronavirus”) has impacted many Virginian’s employment and income. If you are a parent paying child support pursuant to a child support order, you may be concerned about your ability to make your child support payments during these uncertain times.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act

Author:

jim johnson

James “Jim” L. Johnson

Associate

540.438.5302
jjohnson@wawlaw.com

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law on March 27, 2020. The CARES Act includes several provisions of significance for small businesses impacted by COVID-19 as well as lenders qualified to provide such businesses with loans and other financial assistance. As of April 3, 2020, many of these new provisions and programs were already available and beginning to be utilized by small businesses.

You have probably heard about the Paycheck Protection Program (PPP) created by the CARES Act, but the CARES Act also expands the Small Business Association’s Economic Injury Disaster Loan Program (EIDL) beyond its original scope. EIDL is the SBA’s long-standing disaster loan program for most businesses. The EIDL program was created to assist businesses, renters, and homeowners located in regions affected by declared disasters.  In the new COVID-19 era, the EIDL program takes on added importance and has been expanded to meet demand.

Guidelines are being issued and thus the final program will be subject to change, but some important changes of note to EIDL are as follows:

  1. The CARES Act expands EIDL participation to include sole proprietors, independent contractors, nonprofits, tribal businesses, and ESOPs with fewer than 500 employees.
  2. The CARES Act allows for quick (i.e. within 3 business days) $10,000 loan advance, that will not have to be repaid, for applicants eligible for the SBA’s disaster relief program.
    To receive the $10,000 emergency advance, it is not necessary to have an approved EIDL loan. However, if you are able to secure a Paycheck Protection Program (PPP) loan, the $10,000 grant will be subtracted from the forgiveness amount.
  3. EIDL Disaster loans made before December 31, 2020, to existing businesses will no longer require a personal guaranty on advances under $200,000, and advances may be used for payroll, materials, rent or mortgage payments, and other business obligations.
  4. Certain EIDL loans (under a certain $ threshold) will also not require security. The maximum EIDL is a $2 million working capital loan at a rate of 3.75% for businesses and 2.75% for non- profits with up to a 30-year term. Payments can be deferred for up to a year.

The CARES Act provides new opportunities for businesses who have been affected by COVID-19 and decisions made by the government to combat COVID-19. If you need assistance wading through the vast amount of information that is out there and available through many different sources, our attorneys are available to assist.

Wharton Aldhizer & Weaver, PLC has assembled a knowledgeable team and has been working with several of its clients in understanding and applying for loans under the various programs. We are available to offer our assistance to you or answer any questions you may have.

STEVE MILO 
540-213-7440
smilo@wawlaw.com

JEFF ADAMS 
540-213-7445
jadams@wawlaw.com

LUCAS PANGLE
540-438-5321
lpangle@wawlaw.com

JAMES JOHNSON
540-438-5302
jjohnson@wawlaw.com

New Guidance For Employers: Expanded FMLA, Using Existing Leave, And Other Updates

The Department of Labor issued temporary regulations on April 1, 2020 for the paid sick leave and expanded FMLA provisions of the Families First Coronavirus Response Act (“FFCRA”)