LJN Newsletters

The increasing transnational nature of communications systems and, more specifically, the frequency and ease with which Internet transactions may be handled from locations around the globe make more difficult the enforcement of certain patent rights. Technology allows transactions involving participants (human and/or machine) to be in more than one nation, and a working system or method to be fragmented across a number of jurisdictions. This type of scenario may frustrate efforts to enforce patent rights when no one jurisdiction includes all of the elements necessary to establish infringement. This situation arises most frequently in the context of the Internet where an accused infringer services U.S. customers using servers located outside the country. Although the U.S. courts have recognized this problem, the law in this area is far from settled and focusing on these issues from the beginning of the patent application drafting process will increase the chances of successfully enforcing such patents.

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. E.g., Bush v. Gore, 531 U.S. 98 (2000) (enjoining Florida ballot recount); Brown v. Board of Education, 349 U.S. 294 (1955) (directing district courts to supervise "transition to a system of public education freed of racial discrimination"). See New York Times Co. v. United States, 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.

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.

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.

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. See Stephen J. Carroll, et al., Asbestos Litigation, 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.

Attorneys litigating insurance coverage disputes may find themselves feeling like Bill Murray's character Phil Connors in the 1993 movie Groundhog Day, 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.