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Acumed v. Stryker: eBay v. MercExchange Revisited
In Acumed LLC v. Stryker Corp., 551 F.3d 1323 (Fed. Cir. 2008), the Federal Circuit affirmed the grant of a permanent injunction enjoining Stryker from making and selling a putatively infringing orthopedic nail product. In so deciding, the Federal Circuit declined to articulate a bright-line rule governing the grant of permanent injunctions in patent infringement actions. Nevertheless, the Acumed decision is instructive with respect to how the courts may apply the rule of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) in patent infringement cases and the facts that may be adduced to secure ' or defeat ' the grant of injunctive relief.
Those who review the facts of Acumed may be surprised by the court's affirmance of the injunction in that action in view of the: 1) prior licenses granted by Acumed under the asserted patent, and 2) evidence that Acumed's product exhibited safety problems not associated with Stryker's accused, but “medically superior,” device. Indeed, in light of these facts, the Federal Circuit itself characterized the Acumed decision as a close one, “especially with regard to the [factors of] irreparable harm and lack of adequate remedy at law.” Acumed, 551 F.3d at 1332. Thus, if we are to draw any lesson from this decision, special attention must be paid to its facts.
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.