National cases of interest to you and your practice.

The Supreme Court has now heard oral argument in the late Arthur Andersen's petition to review its conviction under the federal "witness tampering" statute, 18 U.S.C. ' 1512(b)(2). This case is the most recent and infamous manifestation of a decade-long debate about the statute. Now the Court has an opportunity to impose clear rules that would resolve the uncertainty about the scope and mental state required to prove "witness tampering" in federal investigations of all kinds.

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Recent pronouncements by both the Supreme Court and Congress have significantly expanded the reach and power of the federal money laundering statute. Although traditionally associated with drug dealing, the statute can reach and has reached any illegal activity that generates large sums of cash (eg, insider trading, fraud, embezzlement). These changes in the law afford the government greater flexibility in where it can bring money laundering cases, and make it easier for the government to obtain a conviction for conspiracy to commit money laundering. Rule 18 of the Federal Rules of Criminal Procedure states that "[u]nless a statute of these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed."

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In the first 3 months of 2005, the SEC filed 18 cases against lawyers. More are clearly coming. Just last month, SEC Chairman William Donaldson warned that the SEC is "firmly committed to both the rules governing attorney conduct, and to the principles that underlie them, and we will enforce them when violated." As if Donaldson's message were too oblique, the SEC's chief litigation counsel put it bluntly: the SEC "has made cases against lawyers a priority."

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In April 2004, the Second Circuit Court of Appeals reversed a district court's conclusion that the features of Mattel's "CEO Barbie" and "Neptune's Daughter Barbie" were not protected by copyright. With little discussion, the three judge panel unanimously held that while Mattel's "particularized expression" in a "doll visage with upturned nose, bow lips, and widely spaced eyes" does not prevent a competitor from creating dolls with upturned noses, bow lips and widely spaced eyes, it does bar a competitor from copying Mattel's "realization" of the particular Barbie's features. <i>Mattel, Inc. v. Goldberger Doll Manufacturing Co.</i>, 365 F.3d 133, 136 (2d Cir. 2004).

In a rare concurrent use decision, <i>Hubcap Heaven, LLC v. Hubcap Heaven, Inc.</i>, Concurrent Use No. 94001147 (Jan. 25, 2005) [not citable], the Trademark Trial and Appeal Board ("TTAB") questioned the continued viability of concurrent use registrations in the face of the Internet's global reach. Concurrent usage is based on the premise that two owners of the same trademark for competing goods and services can coexist by carving out strict geographic territories for each user. The Internet, however, has no geographic boundaries.

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Most attorneys follow model Form 16 in the Appendix of Forms to the Federal Rules of Civil Procedure ("FRCP") when drafting patent infringement complaints. However, in unique factual situations, Form 16-style complaints may not be sufficient to survive Rule 12(b)(6) motions to dismiss and/or Rule 12(e) motions for a more definite statement. For instance, some courts have found complaints that fail to aver particular infringing products to lack the requisite specificity, especially when the asserted patent claims could be read to cover hundreds of a defendant's products. Failing to take these exceptions to the Form 16 standard into account can lead to unnecessary delay and work for the plaintiff (or, conversely, strategic opportunities for the defendant). This article discusses these unique situations, and how counsel may properly draft patent infringement complaints in order to survive Rule 12(b)(6) and Rule 12(e) motions.

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Highlights of the latest intellectual property news and cases from around the country.