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Divided Over Damages: Courts Split On Whether Failure to Mark Precludes All, or Only Some, Pre-Suit Damages
Under the patent marking statute, 35 U.S.C. §287, and Federal Circuit authority, patentees cannot recover pre-suit damages unless and until they (or their licensees) mark their patent-practicing products or provide actual notice of infringement, where such pre-suit damages accrue from as early as six years before suit is filed. But the statute does not address, and the Federal Circuit has not decided, the extent to which pre-suit damages are unavailable in situations where the marking obligation started only recently, during the six year pre-suit damages period, such as just a few months before suit is filed. In these situations, it is unclear whether the patentee is precluded from recovering: 1) all pre-suit damages (for up to six years); or 2) only pre-suit damages accruing after the marking obligation started (which could be just a few months). The answer can have dramatic implications on a patentee’s potential damages and, conversely, a defendant’s exposure.
Only a few district courts have addressed this question in recent years — but they’ve reached directly opposing conclusions. This article analyzes the conflicting authorities and their reasoning, and it provides guidance to litigants on best practices given the conflict between district courts.
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.