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Therasense and the Doctrine of Inequitable Conduct
Perhaps signaling an interest in revisiting the doctrine in its entirety, in April 2010, the Federal Circuit asked for briefing on six questions regarding the defense of inequitable conduct (“IC”) to patent infringement. Therasense, Inc. v. Becton, Dickinson & Co., 2010 WL 1655391 (Fed. Cir. Apr. 26, 2010). To date, the court has received more than 30 briefs from more than 100 amici curiae, presenting diverse and interesting proposals for the court's consideration. Oral argument is scheduled for Nov. 9, 2010.
The IC defense finds its roots in a trilogy of older Supreme Court cases including Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806 (1945). Presently, IC requires clear and convincing evidence that a person with a duty of candor owed to the PTO: 1) misrepresented (or failed to disclose) material information with 2) an intent to deceive or mislead. If sufficient materiality and intent are found, the court balances the equities to determine whether the conduct was sufficiently egregious to declare the subject patent(s) unenforceable.
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.