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Courts Continue to Differ over Timing of Claims Construction: Markman v. Westview Still a Definining Element
Navigating through patent litigation remains a challenge for seasoned litigators and savvy clients. The ruling in Markman v. Westview, 517 U.S. 370 (1996), remains, over a decade after its decision, a defining element of the patent litigation landscape. According to the Manual for Complex Litigation (MCL), '33.223, “[t]iming is one of the more problematic issues' for courts dealing with Markman. Indeed, in the two courts (the Northern District of California and the Southern District of Texas) that have substantially revised (N.D.Ca.) or adopted (S.D.Tex.) local patent rules effective in 2008, one has opted for an early approach to Markman (N.D.Ca.) and the other (S.D.Tex.) has left it largely to the discretion of individual judges. This recent contrast highlights the continuing differences of opinion as to the best approach to Markman hearings and their timing.
Consequently, having a plan and knowing when and how Markman will arise in any particular case will go a long way in determining the time, expense, and strategic choices that patent litigation will involve. That is because '[t]he construction of patent claims is pivotal to infringement actions ” MCL, '33.22. But, '[t]here is no consistent approach among the courts as to the procedural boundaries of claim-construction proceedings' since 'Markman did not establish when or how a patent was to be construed, only that it must be done prior to submission of the case to the jury.' MCL, '33.22. An examination of the alternatives and how courts approach them is informative for counsel and client alike.
The Alternatives
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?