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On 'Patent Trolls' and Injunctive Relief
I find it rather ironic that at the same time I was speaking on the subject of 'Patent Trolls' at the Patent Strategies 2006 conference in New York, in Washington, DC, the Su-preme Court was deliberating this very topic in connection with eBay's appeal of an injunction granted to MercExchange by the U.S. Court of Appeals for the Federal Circuit. 'The long-anticipated eBay case gets to the heart of the debate over so-called patent trolls ' companies that obtain patents only to license them, often using the threat of an injunction to extract a high price from infringers.' Woellert, L.: eBay Takes on the Patent Trolls. Business Week, March 30, 2006. One of the arguments that eBay made was that non-practicing inventors, quaintly nicknamed 'patent trolls,' should not be entitled to an injunction as a matter of course. This suggestion, however, seems to fly in the face of the Constitution, patent law, and common sense. Here are 10 reasons why injunctive relief should not be tied to practice of an invention:
1) 'The Congress shall have power ' To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ' ' (U.S. Constitution, Article I, '8.) The language of the Constitution guarantees 'the exclusive right' (ie, right to exclude by getting an injunction) to authors and inventors without qualifying that these authors should sing their own songs if they are song writers, play their own music if they are composers, act in their own plays if they are playwrights, or that inventors should build and sell their own inventions. Just as it would be absurd to put such limitations in copyright law by tying the exclusive right of authors to the performance of their creative works, so it is equally absurd in patent law to tie injunctive relief to the practice of an invention. Moreover, it would be unconstitutional.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.