Litigation

In a recent case, a patent owner claimed to have invented side impact airbag sensing. The patent enabled an embodiment; that was stipulated. In opposition to a motion for summary judgment of invalidity for lack of enablement, the owner asserted that enablement of a preferred embodiment satisfied the enablement requirement of the patent law. It didn't. The case is only one of several consistent cases. You should beware, and consider the matter in both patent prosecution and litigation. If you own a patent, and wish for a broad construction, be careful what you wish for.

Saying they 'dispensed deception,' a federal judge in Atlanta has ordered the founders and operators of a now-defunct online pharmacy business to pay the FTC $15.8 million for fraudulent claims associated with the drugs they peddled. In his order, issued June 4, U.S. District Judge Charles A. Pannell also found Dr. Terrill Mark Wright, a physician associated with the online pharmacies, liable for $15.4 million to compensate consumers for false advertising claims.

National rulings of interest.

Recent rulings of importance to your practice.

In its June 3, 2008, decision in Pultz v. Economakis, the New York State Court of Appeals unanimously ruled that there is no limit on the number of rent-stabilized units an owner can attempt to recover for owner occupancy. The ruling was a major victory for rent stabilized landlords, and a sharp rebuke to tenant advocates who claimed that multiple recovery for owner occupancy violated the letter and spirit of the Rent Stabilization Law. Indeed, the case continues a recent trend of favorable Court of Appeals decisions for landlords.

Most employees know that their bosses are usually within their rights snooping on workers' e-mail, but text messaging has been in murkier territory. A federal appeals court sought to clarify matters in a ruling last month by distinguishing between electronic communication that employers store on their servers, or pay someone to store, and communication that is contracted out to third parties.

Patent infringement litigation based on an Abbreviated New Drug Application ('ANDA') presents certain unique challenges to the discovery process. Unlike ordinary patent litigation, little if any information helpful to the patent owner is publicly available. Instead, the patent owner must rely on a well thought out discovery plan to obtain certain information from the ANDA applicant. Suggestions for designing such a plan are presented below.

This is the first installment of a two-part series on the proposed move from a patent system granting priority of patent rights based upon invention dates to a system in which priority is based primarily upon filing dates. This installment discusses the history behind the current first-to-invent system, the current patent reform movement, and the basic proposed change to the current system.