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Product-By-Process Claim Construction: Conflict in Federal Circuit Precedent Remains Unresolved
Construing claims that use the process by which a product is created to define the invention ' that is, product-by-process claims ' was not made any easier by the Federal Circuit's recent decision in SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir. 2006). The Federal Circuit again declined to resolve the long-standing conflict between two decisions ' the 1991 decision in Scripps Clinic & Res. Foun. v. Genentech Corp., 927 F.2d 1565 (Fed. Cir. 1991), which held that product-by-process claims should not be limited by the process steps in the claims, (i.e., such claims cover an identical end-product regardless of the steps used) and the 1992 decision in Atlantic Thermoplastics Co. v. Faytex Corp., 970 F.2d 834 (Fed. Cir. 1992), which held that product-by-process claims should be construed to only cover the end-product if produced by the specifically claimed process steps. As explained below, this state of affairs warrants that patent applicants and litigants stay tuned to the case law and adjust their respective claim drafting and analysis strategies accordingly.
The SmithKline Case
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.