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Features
Whether calculating lost profits or performing a 'reasonable royalty' analysis under the <i>Georgia-Pacific</i> factors, a damages expert in a patent case is required to consider a large variety of data ' not just data from the plaintiff or the defendant, but also data from third-party sources, such as trade industry publications or market analyst reports. The admissibility of an opinion based on third-party information, however, has been a source of conflict since 1993, when the U.S. Supreme Court decided <i>Daubert v. Merrell Dow Pharms., Inc.</i>
Highlights of the latest franchising news from around the country.
Features
Highlights of the latest franchising cases from around the country.
The enforceability of franchise arbitration agreements took center stage in the Ninth Circuit Court of Appeals en banc decision in <i>Nagrampa v. Mailcoups, Inc., American Arbitration Ass'n.</i> (2006) __ F.3d __, 2006 WL 3478345 ('<i>Nagrampa II</i>'). In a 7-4 ruling reversing the decision of the three-judge panel upholding arbitration ('<i>Nagrampa I</i>,' 401 F.3d 1024), the <i>Nagrampa II</i> court struck down the arbitration clause under California principles of unconscionability. Along the way, the court made significant holdings and observations that should garner the attention of franchise practitioners on both sides of the aisle.
Franchise law has long characterized franchise agreements as adhesion contracts (<i>see, Ticknor v. Choice Hotels Int'l</i>, 265 F.3d 931 (9th Cir. 2001) (Montana law); <i>Bolter v. Superior Court</i>, 87 Cal. App. 4th 900 (2001) (California law)). While no empirical data exist on the percentage of franchisors that will negotiate the terms of their franchise contract with prospective franchisees, it is fair to conclude that they remain a minority. To start the pre-sale disclosure process, a franchisor must present a prospect with the terms of its bona fide offer for the sale of a franchise. Frequently, these are the only terms the franchisor is prepared to accept.
Features
Part One of this series discussed the two types of reduction to practice: constructive and actual. This installment continues the discussion of satisfying the second prong of the actual reduction to practice test.
Features
When entering into a patent license, the most time is often spent on two issues: 1) how much money, and 2) what am I getting or granting for the money. Several recent appellate court decisions remind us that attention also needs to be paid to other provisions, as they can drastically affect one's rights. This article discusses three such decisions that address declaratory judgment actions, arbitration, and termination, that collectively remind us that the devil is in the details.
One of the most important questions facing a party going to trial in a patent action is whether a jury will help or hurt the party's chance of winning. Recent Federal Circuit and Supreme Court decisions confirm that patentees actually have considerable control over whether a judge or a jury decides the disputed facts. These decisions hold that the Seventh Amendment does not require a jury trial in patent cases where the relief sought is purely equitable, and the right to a jury trial can be lost if damages claims are dismissed. This article explores some of the legal and tactical considerations behind deciding whether to seek a jury trial.