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Patent Opinions, Willfulness and Inducement
Before the Federal Circuit's 2007 en banc decision in In re Seagate Technology, LLC, 497 F.3d 1360, it was common for companies threatened with patent infringement to get a written opinion from experienced patent counsel. These opinions were considered the best way to establish a company's good faith belief that it did not infringe ' evidence that could later be used to prove that the company lacked the intent required to willfully infringe or induce infringement.
Seagate held that to avoid liability for willfulness, an accused infringer must not be “reckless” in the sense that it “acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” 497 F.3d at 1371. Although this changed the willfulness standard, the court did not fully explain how this new standard would be applied in practice. Recent decisions have begun to fill in the gaps left by Seagate. They suggest that a competent opinion is still an effective defense to a willfulness charge, and that a jury may consider a defendant's failure to obtain an opinion when determining the defendant's intent for purposes of willfulness and inducement. Also, legitimate trial defenses may be sufficient to establish that a defendant's actions at the time of infringement were not “objectively reckless.”
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.