LJN Newsletters

In most complex commercial transactions ' mergers, acquisitions, loans and other financings ' the seller's or borrower's counsel is called upon to provide an opinion letter. The letter typically addresses various matters of interest to the buyer or lender, including any exposure to litigation, government inquiry or other proceedings that might have an impact on the value or viability of the client's business. Increasingly, when something goes wrong with the transaction, aggrieved buyers and lenders are seeking recourse, not just against the seller or borrower, but also against the law firm that wrote the opinion letter.
What happens when a law firm provides an opinion letter that is later found to have errors or omissions?

The cost of patent litigation is enormous, and continues to increase. According to the 2003 AIPLA survey, the median cost for a patent litigation with less than $25 million at stake was close to $2 million. Furthermore, many large companies are increasingly coming under attack from small patent holders or patent holding companies. Because of these developments, the inter partes re-examination procedure is becoming an increasingly attractive alternative for patent defendants. However, the inter partes re-examination procedure carries its own risks. As discussed further below, the advantages and disadvantages should be carefully weighed prior to instigating an inter partes re-examination.

One of the first things that a party does when planning a patent litigation or when sued for patent infringement is hire a phalanx of experts. However, what gets lost in the equation is the preliminary questions of "are all of these experts necessary?" and "will their testimony be accepted by the court?"

Consider the following hypothetical situation. Mr. Jones, an engineer with your Company XYZ, informs you that a supplier for XYZ saw a rival company's Product X, which appeared quite similar to the one currently in development at XYZ. Mr. Jones tells you that representatives of XYZ had mentioned that Product X is patented. Should you (a) disregard what Mr. Jones has told you, (b) await word from attorneys for Product X, (c) contact attorneys for Product X to discuss possible infringement issues, or (d) request a formal opinion from outside counsel?

The Supreme Court's recent decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., ___ U.S. ___, 125 S.Ct. 2764, 75 U.S.P.Q.2d 1001 (2005) is noteworthy for the Court's decision to sidestep modifying the standard that the Court set in the Sony case in 1984 as to when a product distributor can be liable for infringing uses of its product. Although the Supreme Court was faced with compelling arguments from copyright owners and the technology industry alike both for and against modifying the standard in Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984), it ultimately found that Grokster and its co-defendant StreamCast could be liable for infringing downloads, not because they distributed a product that was used to infringe copyrights, but because they took the additional step of actively inducing their users to download copyrighted material. In so doing, the Supreme Court avoided deciding whether it was appropriate that a mere distributor of a product "capable of substantial noninfringing use" should avoid liability even when its product is being used for massive copyright infringement.

Recent rulings for your review.

What employees do on their own time is their own business, right? Except when you think it may adversely impact your business. It's one thing for an employee to harbor extreme political views. It's another thing to blog them to the world. An employee's private sex life is, well, private. But what if an employee blogs his or her sexual fantasies to the world? Does an employer have the right to take action against an employee for off-duty blogging it finds offensive or otherwise problematic?

National rulings you need to know.