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Highlights of the latest insurance cases from around the country.
Features
On Dec. 6, 2004, a New York federal jury determined that the 9/11 attacks on the World Trade Center involved two "occurrences" under policies issued to leaseholder Larry Silverstein. As a result, Silverstein could get up to $1.1 billion more than if the attacks had constituted a single occurrence.
Insurance policies typically contain provisions requiring prompt notice to the insurance company of an event that could lead to coverage under the policy. There is a well-known split among U.S. jurisdictions as to whether an insurance company can succeed in barring coverage based on untimely notice if it has not suffered prejudice from the timing of notice. The majority and modern trend is for jurisdictions to hold that an insurance company cannot succeed on a late notice defense absent actual prejudice. <i>See, e.g.,</i> 1 Barry R. Ostrager & Thomas R. Newman, <i>Handbook on Insurance Coverage Disputes</i> §4.02[c][2] (12th ed. 2004) ("Ostrager & Newman"). A minority of jurisdictions holds that notice can be treated as a "condition precedent"; that is, coverage can be barred based on late notice even in absence of any harm to the insurance company. <i>Id.</i> §4.02[c][1].
The United States spends $1.4 trillion on health care annually, translating to the potential for $300 billion in health care financing. Those are numbers that deserve more than a passing glance. However, according to a recent survey of U.S. health care leasing published by R. S. Carmichael & Co. and the Equipment Leasing Association ("ELA"), <i>Healthcare Equipment Leasing, 2003 U.S. Market Dynamics and Outlook</i>, only 10 companies controlled 85% of this sector.
Features
Equipment leasing remains a viable tool for middle market companies in today's environment. The Equipment Leasing Association of America (the "ELA") estimates that of the $668 billion spent by U.S. business on productive assets in 2003, $208 billion, or 31.1%, was acquired through leasing, and for 2004 the ELA projects that leasing activity will grow to $218 billion, or 30.7 cents of every dollar American businesses will invest in equipment.
A patent pool is composed of two or more patent holders who combine their rights to different patents for the purpose of collectively licensing the patents. Patent pools are typically formed when actual or potential competitors in a technology area group patents to complementary aspects of the technology area. Agreements among actual or potential competitors immediately raise the specter of anticompetitive behavior (such as output restrictions, price fixing, and market division) and the antitrust issues corresponding to such behavior.
Antitrust laws are designed to protect consumers' rights. The Department of Justice ("DOJ"), the Federal Trade Commission ("FTC") and private parties may take legal action against businesses that gain an unfair business advantage through the use of a monopolistic market power or other agreements that unfairly restrain trade. In other words, antitrust laws deter unfair advantages gained by businesses due to monopolistic market power.
For several reasons, the continuing advance of technology involves the use of standards setting organizations ("SSOs"). First, SSOs ensure that there are accepted technical standards in an industry, for example, to ensure interoperability of hardware and/or software products. Second, SSOs encourage the participation and collaboration of multiple members of the industry, thereby obtaining valuable contributions from parties who are normally highly competitive and otherwise might not work together. In addition, such standards provide a benefit to the end users (namely, the consumers of the goods or services governed by the standard) by allowing for economies of scale due to large-scale deployment of the technology covered by the standard, and thereby also helping to lower costs for new technologies.
A patent gives its owner the right to exclude others from making, using, and selling the claimed invention. Thus, patent rights give a patentee great control over who uses his invention. In contrast, the basic idea behind distributing software under an Open Source license is that anyone should be able to view and use the source code of the computer program and modify it for his own use. (The source code is the human readable version of the software.) A business decision to distribute software under an Open Source license affects how the author of the software may be able to use his patent rights, but does not affect whether he can or should apply for patent protection.
What role should patent law experts play in modern litigation? Rule 702 of the Federal Rules of Evidence allows experts to testify about their opinions when such testimony will assist the trier of fact. The testimony must be "based upon sufficient facts or data," must be "the product of reliable principles and methods," and the witness must have "applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702.