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After almost 15 years of admittedly dodging the issue, the Court of Appeals for the Federal Circuit in <i>Digital Control Incorporated v. Charles Machine Works</i>, ___ F.3d ___, 2006 WL 288075 (Fed. Cir., Feb. 8, 2006), finally determined that the U.S. Patent and Trademark Office Rule 56, as amended in 1992, does not supplement or replace existing case law in determining the threshold of materiality. The court stated that '[a]lthough we have affirmed findings of materiality based upon the new Rule 56, we have declined to address whether the Rule 56 standard replaced the old 'reasonable examiner' standard.' <i>Id.</i> at *4. Instead, the court found the Rule 56 standard merely 'provides an additional test of materiality' to the existing 'but for,' 'but it may have,' and 'reasonable examiner' tests.
Features
A well-intentioned journalist, who is not a physician, recently wrote an article in <i>The New York Times</i> asking why medical mistakes occur. There, the author advanced a theory that if doctors were better paid, there would be higher quality of care, and fewer misdiagnoses. This theory assumes that doctors are mainly motivated by money, which, in this author's opinion, is not the primary impetus for a doctor, or any other medical practitioner, to do the job right. The law defines medical negligence simply: the failure to do what a reasonably prudent practitioner would do in the same or similar circumstances. Medical negligence, in a legal sense, does not differ from other forms of negligence: When a person ' doctor or layman ' departs from the accepted standard of care, that is negligent conduct. Numerically, this vagary translates to mean that a practitioner has not deviated from the applicable standard of care if he or she does 'that which 51% of practitioners would do.'
Features
The tort of induced patent infringement codified in 35 U.S.C. '271(b) is a powerful tool that patent owners can use when it is not feasible or practical to sue a direct infringer. In order to prove this claim, a patent owner must establish that 1) its claim is directly infringed by a third party, 2) that the defendant induced that third party to infringe, and 3) that the defendant possessed intent to encourage that party to infringe.
Features
On Jan. 17, the U.S Supreme Court announced its decision in <i>Gonzalez v. Oregon</i>, upholding Oregon's state law on so-called 'physician-assisted suicide.' The Supreme Court decision rejected an effort by the Justice Department to punish physicians who assist terminally ill patients with prescriptions of lethal doses of controlled medications pursuant to the Oregon Death With Dignity Act (ODWDA). The case had been widely followed as it proceeded through the federal court system, and is now expected to invite similar legislation as other states consider enacting assisted-death laws. In this article, we consider the state and federal legislation that was placed at loggerheads by an administrative directive of the Attorney General of the United States; the decisions of the lower federal courts presented with the issue; and the ultimate disposition of the matter by the Supreme Court.
Features
Highlights of the latest equipment leasing news from around the country.
At its Feb. 15, 2006 Board Meeting, the Financial Accounting Standards Board affirmed decisions on the remaining issues concerning the proposed FASB Staff Position FAS 13-a, 'Accounting for a Change or Projected Change in the Timing of Cash Flows Relating to Income Taxes Generated by a Leveraged Lease.' These issues had been discussed at the Board's Feb. 8 educational meeting.
Features
Recent rulings of interest to you and your practice.
Features
Competitive pressures in the Equipment Leasing Industry continue to build into 2006. Although industry surveys project a healthy 7% to 8% growth in overall leasing volumes from 2004 to 2006, readily available capital continues to drive down returns as well as margins, especially for the best credit customers. In reaction to these competitive pressures, savvy lessors are increasingly taking advantage of a tax strategy involving the implementation of a Like Kind Exchange ('LKE') Program. LKE Programs enable equipment lessors to systematically avoid current recognition of taxable gain on the disposition of tax leased equipment and defer the requisite payment of state and federal income tax.
Same-sex couples may enter into legally recognizable relationships in various states in the country. While only Massachusetts extends the right to marry at this time, several other states have extended marriage-like rights and responsibilities to these couples by way of a domestic partnership, civil union or reciprocal beneficiary relationship. In addition, many couples cohabit, and mix their income and assets, without any formal legal agreement, recognition or protection. Of course, some relationships end. In the event a relationship with commingled assets or income ends, there may be a transfer of cash or property between members of the couple. Depending upon the manner in which the transfer is characterized, any transfer between a same sex couple may have taxable consequences. Even if a same-sex couple receives recognition of their relationship at the state level, such recognition is not available at the federal level because of the federal Defense of Marriage Act (DOMA). Accordingly, same-sex couples will need to face the complex matter of potential tax ramifications resulting from the agreements they have made upon such dissolution of their relationship relative to their assets and income.
Features
Retaining a mental-health professional to review the work of an evaluator and possibly to testify concerning deficiencies in the evaluator's methodology only makes tactical and economic sense if the mental-health professional has the necessary expertise and, if called upon to testify, will be perceived by the court as credible in spite of the fact that s/he has been retained by one side in an inherently adversarial proceeding. The reviewer's role is to educate the court.
