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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 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.
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.
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.