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Has the Federal Circuit Strengthened Design Patent Protection?
On Sept. 22, 2008, the Federal Circuit issued its first en banc decision in a design patent case. In Egyptian Goddess v. Swisa, __ F.3d __ (Fed. Cir. 2008), the court held that the “ordinary observer” test first set forth by the Supreme Court more than 100 years ago is the sole test for design patent infringement. See Gorham v. White, 81 U.S. 511 (1871). In doing so, the Federal Circuit rejected the “point of novelty” and “non-trivial advance” tests first articulated in Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423 (Fed. Cir. 1984) and the original panel decision in Egyptian Goddess, 498 F.3d 1354 (Fed. Cir. 2007), respectively. At first glance, the court's decision appears to strengthen design patents by reducing the number of tests that a patent holder must satisfy to prove infringement. On closer inspection, however, the court also expanded the ordinary observer test, allowing continued reliance on prior art as a defense to infringement without the burden of invalidating the patent-in-suit. In fact, the Federal Circuit's decision seems to make “practicing the prior art” a viable defense against design patent infringement claims.
Background
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.
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.
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.