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Federal Circuit Applies a Reasonableness Standard to the Knowledge of Infringement Prong
On vacatur and remand from the Supreme Court in light of Commil USA, LLC v. Cisco Sys., Inc., 135 S. Ct. 1920 (2015), the Federal Circuit reaffirmed that defendant Medtronic Sofamor Danek USA, Inc. (MSD) induced infringement of U.S. Patent No. 7,470,236 (“the '236 Patent”) to NuVasive, Inc., because its belief of non-infringement was unreasonable. The decision highlights the tension faced by alleged infringers, who must balance invalidity issues where a broad construction is desirable, against non-infringement issues, where narrow constructions are desired.
Proving induced infringement requires proof that the defendant knew the induced acts were infringing. See, Warsaw Orthopedic, Inc. v. NuVasive, Inc., Nos. 2013-1576, 2013-1577, slip op. at 4 (Fed. Cir. June 3, 2016) (internal citations omitted). MSD argued that it could not be an infringement inducer, because it believed its method was non-infringing. However, the Federal Circuit ruled that this belief was “objectively unreasonable,” in part because it conflicted with MSD's Markman position. In his concurrence, Judge Renya expressed his concern regarding how a jury is supposed to assess the reasonableness of a claim interpretation position if it is excluded from the entire Markman proceeding.
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.