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Features
In American law, courts exercise their awesome powers through injunctions. Courts have used injunctions to implement decisions addressing many of the most divisive social issues of the day: from integrating public schools to even arguably affecting presidential elections. </i>E.g., Bush v. Gore,</i> 531 U.S. 98 (2000) (enjoining Florida ballot recount); <i>Brown v. Board of Education,</i> 349 U.S. 294 (1955) (directing district courts to supervise "transition to a system of public education freed of racial discrimination"). <i>See New York Times Co. v. United States,</i> 403 U.S. 713 (1971) (refusing to grant injunction to prevent publication of "Pentagon Papers").
Last month's installment discussed the implications of different foreign filing strategies for establishing a priority date under 35 U.S.C. '102(e). This month's article discusses the situation under the European Patent Convention.
Features
In April, the House Subcommittee on Courts, the Internet, and Intellectual Property released draft patent reform legislation known as the "Patent Reform Act of 2005, HR2795." This legislation proposes significant changes to the U.S. patent system that, if adopted, would in many respects transform the U.S. system and make it more akin to foreign patent systems. Calls for patent reform have been bandied about for a number of years, but recent criticisms of the U.S. Patent Office and the perception that it issues too many questionable patents appear to be driving the latest proposed reforms. It is worth noting, however, that a number of commentators have suggested it is not the present statutory scheme but instead the lack of adequate funding that is the main culprit behind the increase in the issuance of poor quality patents.
Features
Highlights of the latest insurance cases from around the country.
The attorney-client privilege is a long-standing, well-respected principle. However, given that the privilege acts to limit the scope of discovery, it is frequently as challenged as it is respected. For example, the scope of privilege as between the insured, the insurer and the attorney representing their interests creates a peculiar problem for the courts. In this particular instance, the very basis of the privilege creates the problem.
Features
There has been an emerging and interesting development in recent asbestos-related bankruptcy cases: the filing of objections by disfavored plaintiffs' attorneys. The filing of asbestos-related bankruptcy cases has increased dramatically with the establishment of Section 524(g) of the Bankruptcy Code. <i>See</i> Stephen J. Carroll, et al., <i>Asbestos Litigation</i>, 151-55 (Rand Inst. for Civ. Just., 2005) (reporting at least 73 asbestos-related bankruptcies since 1982, more than half of which were filed in the past 6 years). Section 524(g) provides asbestos-challenged companies a way to reorganize to shed their asbestos liabilities and channel all future asbestos claims to a trust established through the bankruptcy process. To achieve confirmation of a plan incorporating relief under Section 524(g), a debtor must have the consenting vote of 75% of the present affected asbestos claimants, among other things. This consent requirement has led debtors to enter into negotiations with asbestos claimants in advance of a bankruptcy filing in order to ensure sufficient voter approval for the plan of reorganization.
Features
Attorneys litigating insurance coverage disputes may find themselves feeling like Bill Murray's character Phil Connors in the 1993 movie <i>Groundhog Day</i>, given the rate at which various types of conflicts repeat themselves, often involving a recurring casts of characters. In particular, discovery disputes between policyholders and insurers often involve the same categories of discovery that policyholders seek from insurers and which insurers frequently refuse to provide. This is no less true in New Jersey, which remains a popular forum for the filing of coverage actions. This article discusses categories of discovery sought by policyholders from insurers that commonly give rise to motion practice and how New Jersey courts have resolved such disputes.
Features
On July 19, 2005, in a per curiam opinion, the Pennsylvania Supreme Court affirmed the Commonwealth Court's opinion in <i>Koken v. Legion Insurance Company</i>, which had been decided by Judge Mary Hannah Leavitt on June 26, 2003, <i>Koken v. Legion Insurance Company,</i> 831 A.2d 1196 (Pa. Commw. 2003), <i>aff'd,</i> 878 A.2d 51 (Pa. 2005).
West Virginia's highest court has held that a commercial general liability ('CGL') policy does not provide coverage for faulty workmanship claims because such claims do not constitute an 'occurrence.' <i>Webster County Solid Waste Auth. v. Brackenrich & Assocs., et al.</i>, Nos. 31861 & 31862 (W.Va. June 30, 2005). This case reinforces the core concept — long recognized in insurance law — that general liability coverage protects against liability to others due to third-party property damage or bodily injury and does not serve as a performance bond for the policyholder's own work.
In <i>Westfield Insurance Company v. Kroiss</i>, 694 N.W.2d 102 (Minn. App. 2005), the Minnesota Court of Appeals held that an insurer had a duty to defend its homebuilder policyholder against lawsuits for water damage allegedly caused by defective construction during the insurer's policy period. The court further found that the policyholder was entitled to both fees and costs for its successful coverage action and relating to the underlying claims that were defended by other insurers.
