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Expanded Means-Plus-Function Analysis Presents New Opportunities and Challenges Image

Expanded Means-Plus-Function Analysis Presents New Opportunities and Challenges

Joshua D. Curry & Kate E. Hart

The Federal Circuit's <i>en banc</i> decision in <i>Williamson v. Citrix Online</i> expanded the potential application of 35 U.S.C. §112, ¶6, making it more likely that functional claim language will be construed as a means-plus-function limitation even in the absence of the word "means." This article discusses recent decisions applying <i>Williamson</i> and provides practical insights and strategies for patent owners and accused infringers to consider when addressing the expanded application of §112, ¶6.

Features

The Responsible Corporate Officer Doctrine Image

The Responsible Corporate Officer Doctrine

Joseph F. Savage, Jr. & Kate E. MacLeman

<b><i>Briseno v. ConAgra</b></i><p>The Food, Drug, and Cosmetic Act (FDCA) has historically allowed prosecutors to charge corporate employees with misdemeanors without having to prove personal participation or wrongful intent. But, as the use of the statute has become more frequent and penalties have gotten more severe, the constitutionality of such an application of the FDCA has come under heightened scrutiny.

Features

Protecting Counsel Privilege in a Post-Yates Memo World Image

Protecting Counsel Privilege in a Post-Yates Memo World

Ty E. Howard & Todd Presnell

In last month's newsletter, the authors put forward the proposition that attorney-client privilege issues, which can arise during internal investigations, have become even more complicated following the issuance of the Department of Justice's (DOJ) "Yates Memorandum." They continue their discussion herein.

Features

Will Ascertainability Split Finally Be Resolved? Image

Will Ascertainability Split Finally Be Resolved?

Vivian Quinn & Tracey Scarpello

Despite requests for change, the Judicial Conference Advisory Committee on Civil Rules declined to include ascertainability in its proposed changes to Rule 23. In addition, the U.S. Supreme Court recently rejected two petitions for certiorari earlier this year that would have addressed ascertainability.

Features

The Bermuda Form Image

The Bermuda Form

Jared Zola & Lisa M. Campisi

<b><i>Declaring an Integrated Occurrence (or Not)</b></i><p>Many Fortune 500 companies' product liability insurance programs use the Bermuda Form to insure alleged bodily injury and property damage. The Bermuda Form has many characteristics distinct from standard commercial general liability (CGL) policies. Knowing its intricacies is essential for any coverage lawyer involved in large-scale coverage analysis and disputes.

Features

Second Department Evaluates Alternative Undertakings Used at Atlantic Yards Image

Second Department Evaluates Alternative Undertakings Used at Atlantic Yards

Jennifer Kavney Harvey

n a 3-2 split decision, a Second Department panel has ruled that the strictures of New York Lien Law § 5 were satisfied when initial developer Forest City provided a "completion guaranty," rather than a bond or other typical form of undertaking, for the Atlantic Yards B2 Residential Project in Brooklyn next to the Barclays Center arena.

Columns & Departments

Development

ljnstaff & Law Journal Newsletters

Two cases of interest.

Columns & Departments

Real Property Law

ljnstaff & Law Journal Newsletters

Detailed discussion involving two rulings of importance.

Features

Child Custody Evaluations Image

Child Custody Evaluations

Jonathan Gould & Sol Rappaport

<b><i>Proper Use of Psychological Test Results</b></i><p>Child custody evaluations often include administration, scoring, and interpretation of psychological tests. Custody evaluators who present results and interpretation of psychological test scores often discuss only their interpretation of the scores.

Features

Trust Issues: Pre- and Post-Nuptial Clauses Image

Trust Issues: Pre- and Post-Nuptial Clauses

Martin M. Shenkman & Rebecca A. Provder

<b><i>Part Two of a Two-Part Article</b></i><p>A discussion of the trust issues that can arise in the context of matrimonial practice.

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MOST POPULAR STORIES

  • Surveys in Patent Infringement Litigation: The Next Frontier
    Most experienced intellectual property attorneys understand the significant role surveys play in trademark infringement and other Lanham Act cases, but relatively few are likely to have considered the use of such research in patent infringement matters. That could soon change in light of the recent admission of a survey into evidence in <i>Applera Corporation, et al. v. MJ Research, Inc., et al.</i>, No. 3:98cv1201 (D. Conn. Aug. 26, 2005). The survey evidence, which showed that 96% of the defendant's customers used its products to perform a patented process, was admitted as evidence in support of a claim of inducement to infringe. The court admitted the survey into evidence over various objections by the defendant, who had argued that the inducement claim could not be proven without the survey.
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  • In the Spotlight
    On May 9, 2003, the U.S. Attorney's Office for the District of Massachusetts announced that Bayer Corporation, the pharmaceutical manufacturer, had been sentenced and ordered to pay a criminal fine of $5,590,800 stemming from its earlier plea of guilty to violating the Federal Prescription Drug Marketing Act by failing to list with the FDA its drug product, Cipro, that was privately labeled for an HMO. Such listing is required under the federal Food, Drug &amp; Cosmetic Act. The Federal Prescription Drug Marketing Act, Pub. L. 100-293, enacted on April 22, 1988, as modified on August 26, 1992 by the Prescription Drug Amendments (PDA) Pub. L. 102-353, 106 Stat. 941, amended sections 301, 303, 503, and 801 of the Federal Food, Drug, and Cosmetic Act, codified at 21 U.S.C. '' 331, 333, 353, 381, to establish requirements for distributing prescription drug samples.
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