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Allocation often is a key issue in insurance coverage cases where courts have found that long-term bodily injury or environmental contamination has taken place over many years. Occurrence-based policies typically provide coverage only for damages from injury taking place during the policy period. In many cases, courts have found it impossible to determine as a matter of fact precisely when injury took place or how much injury took place in any given period. They have thus presumed that injury took place over the entire period — often a very lengthy period — during which it may have taken place (<i>eg</i>, from first "exposure" until diagnosis of the injury or discovery of the contamination).
Recent rulings of interest to you and your practice.
Two years ago, the New York State Bar Association circulated a proposal that would add new consent grounds as well as unilateral no-fault grounds for divorce to the five fault grounds and one mutual-consent no-fault ground that already exist. Assemblywoman Helene Weinstein asked the author, along with others, to comment on the NYSBA proposal. Following are some of the observations the author made.
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<b>Part One of a Two-Part Article</b>. There are as many ways of settling marital estates as there are creative attorneys and divorcing couples. Each permutation brings its own complications, including tax burdens to be allocated (and avoided). When the assets are to be paid out by one party to the other over time rather than in lump-sum amount, the tax consequences of the arrangement must be carefully considered.
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More couples than ever are choosing to live together without benefit of marriage. Some simply reject the institution. Some are same-sex partners who cannot marry in New York or most other states. Others have been married previously and do not wish to jeopardize their separate governmental entitlements or to create marital rights that might conflict with their ability to control their separate property.
On June 20, 2005, the Supreme Court granted certiorari in an important case for intellectual property holders seeking to navigate the sometimes-conflicting dictates of patent and antitrust law. In <i>Independent Ink, Inc. v. Illinois Tool Works, Inc., and Trident, Inc.</i>, 396 F.3d 1492 (Fed. Cir. 2005), the U.S. Court of Appeals for the Federal Circuit held that a patent establishes a rebuttable presumption of market power in a tying case brought under Section 1 of the Sherman Act. The ruling has put the Federal Circuit at odds with several lower courts, the Antitrust Division of the Department of Justice, the Federal Trade Commission and a host of academic critics, each of which maintain that patent rights do not, by themselves, give rise to an inference of market power, and that any rule to the contrary has the potential to reduce legitimate incentives to innovate.
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On June 13, 2005, the U.S. Supreme Court expanded the safe harbor provision of 35 U.S.C. '271(e)(1) to the "use of patented compounds in preclinical studies ... as long as there is a reasonable basis for believing that the experiments will produce 'the types of information that are relevant to an [Investigational New Drug application ("IND")] or [New Drug Application ("NDA")].'" <i>Merck KGaA v. Integra Lifesciences I, Ltd.</i>, __ U.S. __, 125 S.Ct. 2372, 2383-84 (U.S. 2005) (quoting Brief of U.S. as Amicus Curiae 23) ("<i>Integra II</i>").
Enforcement strategies in an industrywide patent enforcement campaign may differ from strategies advantageous in a single litigation. In a single litigation scenario, the goal is to maximize the recovery in the present case without any consideration given to possible effects the present lawsuit may have on future cases. Although this may be somewhat shortsighted as the same players (plaintiff, defendant, and attorneys) are likely to cross paths again and their previous experience will undoubtedly affect their mutual expectations and behavior in subsequent encounters, in reality it is not taken into consideration as often as it should be. Not so in an industrywide enforcement campaign, where the goal is to maximize the monetary recovery for the patent or patent portfolio with respect to all infringers. In this scenario, each case must be considered not in isolation but in the context of the overall enforcement campaign.
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Everything contained in this issue in an easy-to-follow format.
