The Supreme Court's Medimmune decision relates directly to the federal courts' jurisdictional requirement of case or controversy, but by overruling the Federal Circuit's Gen-Probe decision it may also have changed the balance of power between patentees and licensees.
In LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364 (Fed. Cir. 2006), the Federal Circuit held that a license to a patent covering a combination of elements, that authorized the licensee to sell components of the invention, but disclaimed a downstream license or implied license to the licensees' customers to practice the combination, constituted a conditional sale, thus defeating the application of the patent exhaustion doctrine. It further held that a downstream point of sale notice that no implied license was conveyed similarly defeated the first sale doctrine. In addition, it held that no implied license could be found on those facts. As a result, the patent holder was free to assert a claim of patent infringement against parties who were authorized purchasers of components of its invention, when such parties assembled the resulting combination. This decision provides the clearest guidance to date on how a patent holder whose patents cover a combination of components can extend its rights to reach downstream parties who assemble those components into the patented combination. This article discusses this case in the context of pre-existing authority on patent exhaustion and implied license, and highlights some of the considerations associated with drafting agreements to avoid patent exhaustion and implied licenses.
Recent rulings of interest to you and your practice.
Although the marital exception to rape and forcible sodomy remained on the legislative books, the New York Court of Appeals in People v. Liberta, 64 NY2d 152 (1984), held that the exception ' which had previously shielded men from criminal liability for raping their wives ' was unconstitutional. It was a hard-won victory at the time for victims of such abuse and the feminist advocates behind them, but the extent of the protection the decision offered was limited; it applied only to rape and not to other sexual contacts that would be treated as crimes if perpetrated by anyone other than the victim's husband.
In December 2006, Justice Laura Visitacion-Lewis of Supreme Court, New York County, held that a modification to a separation agreement was void ab initio and unenforceable. D.M. v. K.M., 14 Misc.3d 1206(A), Slip Copy, (Sup. Ct., N.Y. Cty. 12/12/06). That case involved a woman who agreed to give up her rights under the original agreement according to which she would have received a large monthly maintenance payment, child support and custody of the couples' children. Although the Special Referee who first analyzed the case considered the modified agreement unenforceable because the ex-wife, an alcoholic, might have been impaired at the signing, the appellate court rescinded the agreement on another basis: The amended agreement was a product of the ex-husband's overreaching.
Highlights of the latest insurance cases from around the country.
A liability insurer's promise to defend its insured is at the core of the protection purchased by policyholders and, in most states, the insurer will be required to defend any suit alleging facts that possibly could result in a judgment against the insured that would be covered by the policy's duty to indemnify. A duty to defend will be found where the undisputed facts surrounding a claim — typically the language of the policy and the allegations of the complaint — permit proof of a claim potentially covered by the duty to indemnify. The complaint-allegations test, or what some jurisdictions term the eight-corners rule, results in the duty to defend being easily found by courts, commensurate with the broad contract language, and the policy's intention to afford the insured 'litigation insurance' protecting against the risk and burden of litigation.
Reversing established precedent, a Fourth Department panel has ruled that when a parent is deemed unable to care for a child due to the parent's mental illness or retardation, the Family Court may determine whether 'some form of posttermination contact' is nonetheless in the child's best interests.
Traditionally, courts have found bad faith in two contexts — when an insurer wrongfully denies coverage in a first-party claim and when an insurer's improper refusal to settle a third-party claim results in an excess verdict against the insured. Courts have recognized bad faith causes of action under these circumstances in light of the type of policy involved and the nature of the insured's interests that are at stake.
New York State is a 'best interest' custody state that gives the courts a wide latitude to choose a parenting custody plan that is in the best interest of the children and family. DRL ' 240 specifically states: 'The court shall ' enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interest of the child.' The standard is well ensconced in cased law as well. How does this concept mesh with the Court of Appeals' decision in Braiman v. Braiman, which stated that courts should not impose joint custody arrangements on parents who are 'severely antagonistic and embattled' and who are unable to put aside their differences for the benefit of the children?
