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Boundaries of Patent Exhaustion Defense Explored, Decided (For Now) In <i>En Banc Lexmark</i> Decision
Despite over 150 years of Supreme Court precedent, even the most basic precepts of patent exhaustion doctrine remain unsettled. In Lexmark Int'l, Inc. v. Impression Prods., Inc., No. 2014-1617 (Fed. Cir. Feb. 12, 2016) (en banc), the United States Court of Appeals for the Federal Circuit grappled with the very foundations of the so-called “first sale” defense in deciding that: 1) a patent owner's sale of an article abroad does not exhaust its U.S. patent rights; and 2) post-sale use restrictions imposed at the point of sale can preserve the patent owner's right to sue downstream users when those restrictions are violated.
Lexmark attracted enormous attention from amicus curiae. In the over 30 briefs submitted to the Federal Circuit, there was a clear demarcation along industry lines. Biotechnology and life sciences companies urged the court to maintain its limited exhaustion rules to permit price differentiation practices that benefit consumers who do not want, and cannot afford, the full bundle of rights associated with a patented product. Computer and high technology companies, in contrast, generally urged adoption of a broader exhaustion rule to ensure freer flow of component parts at every level of their international supply and distribution chains.
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.
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.
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.