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Refining the Pleading Requirements for Patent Infringement
In a much anticipated decision, the Court of Appeals for the Federal Circuit (“CAFC”) in In Re Bill of Lading Transmission and Processing System Patent Litigation, No. 2010-1493, – 1494, -1495, -1496, 2011-1101, – 1102 (Fed. Cir. June 7, 2012) (O'Malley J.) has clarified the pleading requirements for alleging patent infringement. The court held that Form 18 of the Federal Rules of Civil Procedure (“FRCP”) governs the required specificity when pleading direct infringement. Thus, a plaintiff need not plead facts establishing that each element of an asserted claim is met, need not identify which claims it asserts are being infringed, and need not identify a specific direct infringer if it pleads facts sufficient to allow an inference that at least one direct infringer exists.
In contrast, Supreme Court decisions such as Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) ' not Form 18 ' rule when pleading indirect infringement. To state a claim for contributory infringement, a plaintiff must, among other things, plead facts that allow an inference that the components sold or offered for sale have no substantial non-infringing uses. Affirmatively pled facts that indicate substantial non-infringing uses may defeat a claim for contributory infringement.
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.