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The New Hybrid Standard for Appellate Review in Claim Construction
The Federal Circuit has long maintained that it is entitled to review a claim construction decision de novo, without deference to the district court. See, e.g., Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1475 (Fed. Cir. 1998) (en banc). Over the years, this approach has led to a notably high reversal rate of district court claim construction decisions, peaking at 44% in 2004. Although the reversal rate has decreased since then (e.g., dipping to 16.5% in 2009), this “two bites at the apple” approach remained controversial. Many criticized the methodology as judicially inefficient, creating unpredictability and uncertainty, and thus deterring litigants from settling earlier. However, on Jan. 20, 2015, the Supreme Court rejected this blanket policy of de novo review in favor of a hybrid approach. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015).
What didn't change? Analogous to the interpretation of a contract, de novo review will still apply if a claim term is construed based solely on intrinsic evidence (i.e., the four corners of the patent and its file history).
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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.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.