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Atlanta Law Firm Overcomes Trademark Opposition

March 5, 2014

Baxam Law Group, LLC, a law firm based in Duluth, Georgia, today announced the settlement of a trademark dispute that was initiated in the United States Patent and Trademark Office (USPTO) over the firm’s application for registration of its service mark, LAW FOR TODAY’S BUSINESS.  The opposition (a dispute proceeding in the USPTO) was filed by Howard & Howard, PLLC, a Michigan-based law firm. Today’s agreement resolves all disputes between the two firms and allows each firm to continue using and to register its respective marks without interference from the other.

Howard & Howard’s opposition alleged that registering Baxam Law’s mark would lead to a likelihood of confusion in the marketplace and dilution of Howard & Howard’s own trademark registrations, which included the phrase LAW FOR BUSINESS.  Baxam Law counterclaimed that the phrase LAW FOR BUSINESS is generic and therefore its registration by Howard & Howard as a service mark in the USPTO should be canceled.

According to Baxam Law’s principal, Deanna Baxam, “This settlement vindicates our uninhibited right to use LAW FOR TODAY’S BUSINESS as a unique identifier for our fresh, contemporary model of client-focused, high quality and value-conscious services.  We’re a twenty-first century law firm.”

Baxam Law specializes in providing intellectual property, healthcare and related legal services to corporations, research organizations and entrepreneurs.

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U.S. AND NINE STATES WILL SHARE WELLCARE SETTLEMENT MONEY

The U.S. Department of Justice announced settlement of its claims against healthcare insurer, WellCare Health Plans, Inc., on April 3.  The federal government and nine other states, including Georgia, will share in penalty payments of $137.5 million to as much as $252.5 million.  The company will also bear the costs of implementing a Corporate Integrity Agreement and repairing the damage to its reputation damage inside and outside the company. Yes, compliance failures are always expensive.

These days there seems to be growing demand for accommodations in white-collar jails, too.  Several corporate officers were indicted, as has been the case with a number of healthcare fraud investigations in recent years.   This is also another case in which a company lawyer, this time the general counsel, was among those indicted for criminal conduct.  This is a trend that is of great interest to healthcare lawyers, for obvious reasons.  It is further confirmation that the days of the company lawyer being completely insulated from responsibility for the actions of his or her corporate clients are over.

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Here are excerpts from the press release:

WASHINGTON – WellCare Health Plans Inc. will pay $137.5 million to the federal government and nine states to resolve four lawsuits alleging violations of the False Claims Act, the Justice Department announced today. WellCare, based in Tampa, Fla., provides managed health care services for approximately 2.6 million Medicare and Medicaid beneficiaries nationwide.

     The lawsuits alleged a number of schemes to submit false claims to Medicare and various Medicaid programs, including allegations that WellCare falsely inflated the amount it claimed to be spending on medical care in order to avoid returning money to Medicaid and other programs in various states…  knowingly retained overpayments it had received from Florida Medicaid for infant care; and falsified data that misrepresented the medical conditions of patients and the treatments they received.

Additionally, it was alleged that WellCare engaged in certain marketing abuses, including the “cherrypicking” of healthy patients in order to avoid future costs; manipulated “grades of service” or other performance metrics regarding its call center; and operated a sham special investigations unit.

The settlement requires that WellCare pay the United States and nine states – Connecticut, Florida, Georgia, Hawaii, Illinois, Indiana, Missouri, New York and Ohio ….

Read the entire press release.

Baxam Law Group is an Atlanta area law firm that serves clients in intellectual property and healthcare law matters. Connect with Baxam Law on Facebook or on Twitter @innovationlawyr.

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Inventor, artist or author? Learn the ba

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PROMETHEUS AND THE INNOVATOR’S REWARD

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The mythical figure, Prometheus, stole fire from Zeus and gave it to mortals. As punishment, he was strapped to a rock and an eagle ate his liver every day, for each day he grew a new liver and was plucked apart by the eagle all over again. It was the punishment that never ends.

Today, the United States Supreme Court handed down a decision that could have long-term negative consequences for innovators.  The decision ended a patent dispute between the Mayo Clinic Foundation and Prometheus Laboratories, a Nestle subsidiary that makes and sells a diagnostic test to help doctors observe patient’s response and figure out the correct medication dosage for Crohn’s disease.  Mayo’s doctors had previously used the Prometheus test, until they came up with a modified version. Mayo stopped using the Prometheus test and decided it wanted to sell its own version. Prometheus didn’t appreciate the competing business venture and sued. The Court of Appeals for the Federal Circuit, which specializes in patent issues, found Mayo had infringed Prometheus’ patents, but today the Supreme Court disagreed.

The Court’s reasoning in today’s opinion was that no one should be allowed to patent tests that observe the human body’s natural response to illness or treatments.  But is it really that sweepingly simple?  Imagine, if you will, the many diagnostic tests used to observe patient responses to treatments on a daily basis, and there are indeed many.  For example, we use diagnostic tests to measure blood glucose response to medication and to administer workplace drug screens everyday.  Other tests, like the PSA for prostate cancer, are used to detect diseases.  Now imagine that the makers of these products knew beforehand they could have no intellectual property protection for the years of research and expensive testing they put into developing them. Would we still have the same number of sophisticated and ever-improving tests that we have today?

There is absolutely nothing wrong with an innovator earning money as the reward for creativity, effort and investment.  Beyond Prometheus, other innovators who put money and time into developing better tests to support healthcare were not helped by this outcome.  This decision may in the short term lower costs for the diagnostic aspect of mass-market healthcare, but in the long run it could slow the process of innovation.  Quite simply, the analysis will be: Why put time into developing it if I can’t make money from it?

Unlike the story of Prometheus, the eagle won’t be able to gobble up the innovators’ vitals forever.

Baxam Law Group is an Atlanta area law firm that serves clients in intellectual property and healthcare law matters. Connect with Baxam Law on Facebook or on Twitter @innovationlawyr.   RETURN TO HOME.

Whistleblower Claims – Corporate Land Mines

From that delicate balance between preserving the public good and the right of private action has emerged that most persuasive, and potent, moderator – the whistleblower claim.  In our laws, the purpose of whistleblower provisions has been to enable employees, representatives and even business partners to report behavior that has harmed or could potentially cause harm to the interests of the government or the public it serves.  The underlying rationale is that reporting this behavior removes the potential harm,  punishes the offenders and makes an example of their behavior as a deterrent against future bad acts, therefore “blowing the whistle” should be encouraged and the person or persons who do it should be rewarded.  Over the years, several well-recognized statutory programs based on federal law have included whistleblower provisions. These include the Occupational Health and Safety Act, the Internal Revenue Service Code and the Fair Labor Standards Act.  State laws are also armed to respond to whistleblower complaints.

For example, a $327 million judgment against drugmaker, Johnson & Johnson, under the South Carolina Unfair Trade Practices Act was just reported to have been upheld.  A whistleblower claim triggered this case, which has so far led to lawsuits by multiple states alleging that their Medicare and Medicaid programs have been defrauded.  The South Carolina  fine was calculated by assessing $4,000 for every “Dear Doctor” letter the company sent to physicians claiming that the drug was better than the competition and $300 for every sample it gave away to healthcare professionals.

But it’s not just big pharmaceutical companies that have been caught in the dragnet of a whistleblower complaint.  In the healthcare arena, the threat is very real for distributors of durable medical equipment and for physicians, physician assistants and nurse practitioners who participate in treating patients and reporting the services provided.  Outside of healthcare, recent whistleblower claims were filed by Alcohol, Tobacco and Firearms (ATF) agents (click link for story), to report violations of the Occupational Health and Safety Act, the Internal Revenue Service Code and the Fair Labor Standards Act.

Here are some useful tips for handling whistleblower scenarios.  For employers:

  • Develop and communicate a procedure for reporting potential compliance violations that is confidential, responsive and can be accessed by employees outside the regular chain of command. Maintain confidentiality as much as possible, and inform the employee of the outcome of your investigation.
  • Carefully address any complaints raised by employees that involve potential violations of federal or state law, and document the resolution.
  • Often, companies do not know the identity of the whistleblower until the indictment as been unsealed.  Even if you receive this information, do not take any personnel action against an employee or business partner because they filed a whistleblower complaint.

For employees:

  • If possible, discuss your concerns with your managers, or if you feel uncomfortable about doing so, with your company’s compliance officer.
  • Continue to observe the rules and requirements of which you are aware while the investigation is progressing, and to do your job.
  • You may choose not to raise the issue internally and report it directly to the government, usually with the assistance of a qui tam lawyer. Supporting facts are very important to substantiate a whistleblower complaint, so be prepared to present information that would adequately support your case in court.

Federal and state whistleblower cases may request civil and/or criminal penalties and often disqualify companies or persons found guilty from participating in government fee-for-service or procurement programs.  The fines are usually high and are a significant source of revenue for cash-strapped government agencies as well.   The number of these cases, especially in the healthcare field, has been increasing and the trend is expected to continue.

Additional links: http://www.whistleblowers.gov/, http://bit.ly/sxFL6V , http://www.irs.gov/compliance/article/0,,id=180171,00.html,

Baxam Law Group, LLC advises clients on business, intellectual property and healthcare law matters. Visit us on FacebookFollow us on Twitter.

My wish for you this year? Wisdom, healt

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Check to make sure your charity’s 501(c

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