Imagine the following two scenarios, and try to figure out what the real difference is. First, your competitor blatantly lies in its advertising about the effectiveness of its products; second, your competitor blatantly lies to a reporter about the effectiveness of its products, and the reporter publishes the lies in an article or in a magazine. It seems like the same situation, but it is not. With the first, you could sue for false advertising because the advertisement is 'commercial' speech, whereas with the second, you cannot because the magazine article is 'non-commercial' speech. A similar difference is presented if a newspaper uses a picture of a celebrity without the celebrity's consent to highlight a news article, as opposed to a company using the same celebrity picture in a print advertisement, in the same newspaper, to promote the company. A breach of the celebrity's right of publicity claim is not available against the newspaper because the news article is 'non-commercial,' but is available against the company because the print advertisement is 'commercial.' The rationale for both is that while the First Amendment fully protects 'non-commercial' speech, it protects 'commercial' speech in a significantly limited way.
- February 28, 2007Barry M. Benjamin
Highlights of the latest intellectual property news from around the country.
February 28, 2007Matt BerkowitzThe 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.
February 28, 2007John ConeIn 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.
February 28, 2007Charlene M. Morrow and Karen ServerRecent rulings of interest to you and your practice.
February 28, 2007ALM Staff | Law Journal Newsletters |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.
February 28, 2007Janice G. InmanIn 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.
February 28, 2007ALM Staff | Law Journal Newsletters |Highlights of the latest insurance cases from around the country.
February 28, 2007ALM Staff | Law Journal Newsletters |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.
February 28, 2007Marc S. MayersonReversing 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.
February 28, 2007Mark Fass