Two Supreme Court rulings, Daubert v. Merrill Dow Pharmaceuticals Inc. and Kumho Tire v. Carmichael, have had a profound effect on the treatment of expert testimony in the courts. In 1993, the Supreme Court, in Daubert, articulated guidelines for admissibility of scientific expertise as testimony. Later, in 1999, in Kumho, the Court focused on the admissibility of clinical expertise as testimony. More recently there has been increasing recognition of the inconsistency of trial courts in their construction and articulation of evidentiary standards to medical testimony. One proposed remedy is that 'Physicians should respond by correcting courts' misinterpretations of medical practice and assisting in the development of legal standards that encourage thoughtful and informed consideration of medical testimony by judges and juries.'
- October 30, 2006Harold J. Bursztajn, Milo Fox Pulde, Darlyn Pirakitikulr and Michael Perlin
The effect of the Supreme Court's May 2006 opinion in eBay v. MercExchange is already visible in the world of intellectual property litigation. A handful of subsequent district court opinions relating to damages and permanent injunctive relief for patent infringement have been handed down with outcomes substantially outside of what would have normally been expected less than even a year ago, using the eBay decision as precedent. Although the true and long-lasting effect of this decision on litigation remains to be seen, its directional influence is clear. However, what is unclear is the effect that eBay will have on real-world intellectual property management and investment. The appropriate manner in which to react to these recent changes in the litigation realm is currently an area of much discussion by corporate IP departments, patent licensing and enforcement companies (P-LECs) and financiers.
October 27, 2006Andrew W. Carter and Adam T. Clifford'It has now been surprisingly discovered ' 'With these words in Purdue Pharma's U.S. Patent Nos. 5,656,295, 5,508,042 and 5,549,912, Endo Pharmaceuticals asserted a basis to challenge the enforceability of Purdue's controlled-release oxycodone formulations due to inequitable conduct. Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123 (Fed. Cir. 2006).
October 27, 2006James DeZazzo, Ph.D. and Stefan Miller, Ph.D.On Oct. 25, New Jersey stopped short of becoming the second state in the nation to legalize same-sex marriage by judicial fiat. The state's high court, while declaring unconstitutional state laws that deny same-sex couples the financial and social benefits and privileges given to married heterosexuals, held that fixing the problem is a legislative task ' and gave lawmakers 180 days in which to do it.
October 25, 2006Michael BoothNew York's Dewey Ballantine and San Francisco's Orrick, Herrington & Sutcliffe have taken another step toward completing a merger. According to a statement released Wednesday morning, the management and executive committees at both firms announced to their respective partners that they intend to recommend approving the combination. A full partnership vote at both firms is expected before the end of the year.
October 25, 2006Andrew LongstrethHighlights of the latest intellectual property news from around the country.
September 29, 2006Eric AgovinoTypically, in an action concerning infringement of a process patent, the activities of an individual party are alleged to infringe one or more of the process patent claims. Under certain circumstances, however, the combined activities of two or more parties may constitute infringement of a process patent claim. Often, courts analyze these situations by determining if 'some connection' exists between the parties whose activities are being combined. This standard, in our view, ultimately defines more activities as infringing than is warranted. A more appropriate standard would be a 'working in concert' standard.
September 29, 2006Lindsey A. Repose and Daniel A. WilsonAs one who has devoted most of my career to the growth and development of legal professionals, including lawyers and judges, I can attest to the palpable and perplexing changes that adults experience as they progress in their careers. Without compromising confidences, I know that there are numerous lawyers who feel stuck in a rut of routine filings or litigation lethargy (tired of the fight and incivility), those who are trapped by income and power that they secretly would sacrifice if they knew what to do, and those who just don't like the practice of law any longer or perhaps never did.
September 29, 2006Robert ClaymanMore and more law firms are using firewalls in today's world. By this term (or such synonyms as 'ethical screen' or 'Chinese Wall'), firms are referring to the mechanism by which either an individual or a group within a firm is shielded from other concluded or ongoing representations.
September 29, 2006Jeffrey P. AyresSome partners in multi-state partnerships have recently rediscovered the benefits of becoming a professional corporation (PC) partner in their law firms, primarily to obtain state income tax savings. Where the advantages outweigh the disadvantages, some firms have accommodated (and in some cases, encouraged) some of their partners to consider this alternative. A by-product of the influx of PC partners is that a number of multi-state law firms will consist of both incorporated and unincorporated partners, and partnership agreements must be reviewed (and in some cases amended) to accommodate this arrangement and deal with ancillary consequences.
September 29, 2006Sheldon I. Banoff