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Supreme Court Re-Invigorates 'Obviousness': KSR v. Teleflex Decision
On April 30, 2007, Justice Anthony Kennedy delivered a unanimous decision of the
U.S. Supreme Court in KSR International Co. v. Teleflex Inc., reversing the U.S. Court of Appeals for the Federal Circuit ('Federal Circuit') and, in effect, re-invigorating obviousness under 35 U.S.C. '103 as an available defense to a patent.
Under 35 U.S.C. '103 a patent is rendered obvious where:
the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.
The Federal Circuit, interpreting '103 and prior U.S. Supreme Court guidance, propounded and has been applying the 'TSM test,' short for 'teaching, suggestion, or motivation.' According to the Federal Circuit, under the TSM test 'a patent claim is only proved obvious if 'some motivation or suggestion to combine the prior art teachings' can be found in the prior art, the nature of the problem, or the knowledge of a person having ordinary skill in the art.' Finding this test too 'rigid,' the U.S. Supreme Court reversed the Federal Circuit's finding of non-obviousness and advocated a more flexible approach.
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.