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In today's age of strong patent rights, enhanced visibility and budgetary clout are the norm for intellectual property professionals — and are generally regarded as good things. With the creation of the U.S. Court of Appeals for the Federal Circuit ("CAFC") in 1982, we have seen a number of distinct pro-patent trends. These have included a robust presumption of patent validity, higher damage awards for acts of infringement, more flexible approval standards introduced by the PTO, and an increasingly granted right on the part of patent holders to seek injunctive relief to stop the production of infringing products. Prior to the creation of the unitary CAFC, patent rights were less certain to be enforced through either the award of high monetary damages or sweeping injunctive relief.
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The patent applicant can act pre-emptively, even pending further development of legal doctrines specific to infringement of business and network-related methods, to draft and prosecute claims that will "catch" infringing activity at as many conceivable loci along the network as possible, and thwart competitors' ability to readily avoid infringement by parsing method steps creatively.
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Highlights of the latest intellectual property news from around the country.
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Attorneys have rushed to the border in 2004 to enforce patent rights. In the first 6 months of 2004, the International Trade Commission ("ITC" or "Commission") has received more complaints to uphold patent rights than in any previous year except for 2001. It is anticipated that by the end of the year, the ITC will have experienced its most active year for patent litigation ever. Two key factors are helping to fuel an expansion of patent litigation at the ITC: the ability to pursue parallel actions before both the ITC and Federal District Court, and the fast track investigation of the ITC with final decisions typically issuing within 12 to 18 months. Moreover, the in rem nature of the remedies available at the ITC, particularly the general exclusion order, allows domestic patent holders to obtain substantial prospective relief without filing a series of actions against numerous foreign infringers. Consequently, as technology increasingly becomes a global enterprise, the pace of patent infringement complaints filed with the ITC will only continue to surge.
In 2002, Duke University attempted to avoid liability for patent infringement by invoking the common law experimental research exception to patent infringement. In a landmark decision, the U.S. Court of Appeals for the Federal Circuit rejected Duke University's argument that its infringing research activities should be exempt from liability under this exception. <i>Madey v. Duke Univ.,</i> 307 F.3d 1351 (Fed. Cir. 2002).
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It has long been held that a good faith reliance on timely and competent advice of counsel can negate a charge of willful patent infringement. Such advice of counsel can be used to potentially shield an infringer from having to pay enhanced damages of up to three times the damages under 35 U.S.C. §284 and/or the patentee's attorneys' fees under 35 U.S.C. §285. Similarly, a defendant's failure to obtain advice of counsel until after the company commenced its infringing activities would be evidence of willful infringement. <i>Underwater Devices Incorporated v. Morrison-Knudsen Company,</i> 717 F.2d 1380, 1390 (Fed. Cir. 1983). The practical application of this rule has been fraught with difficulty, however, since assertion of an opinion of counsel as a defense to a charge of willfulness typically involves a waiver of attorney-client privilege as to communications surrounding the opinion. The tension created by this dynamic was exacerbated by an adverse inference that an opinion of counsel was unfavorable if an accused infringer refused to waive privilege and disclose an opinion of counsel in defense of a willfulness charge. <i>Kloster Speedsteel AB v. Crucible, Inc.,</i> 793 F.2d 1565, 1580 (Fed. Cir. 1986). The Court of Appeals for the Federal Circuit in <i>Knorr-Bremse Systeme Fuer Nutzfahrzeuge GMBH v. Dana Corp.,</i> 2004 U.S. App. LEXIS 19185 (Fed. Cir. 2004) (<i>en banc</i>) abolished the adverse inference rule, but also reaffirmed that one is under a duty of care to avoid infringement.
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A welcome to the Special Issue on Internet jurisdiction from the Managing Editor.
Highlights of the latest franchising cases from around the country.
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California has a major influence on many business trends in the United States, and franchising law is no exception. Two recent court decisions in the state could have a significant effect on how franchises classify their employees for overtime purposes. Additionally, a citizen referendum that is on the November ballot could change how franchises (and all private businesses) are exposed to lawsuits. In this Q&A, Matthew Righetti, a partner in Righetti Wynne, based in San Francisco, talks about the potential impact of these developments in the context of the general business environment in the state. Righetti represented the plaintiffs in <i>Sav-On Drugstores v. Superior Court,</i> which is discussed below.
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Highlights of the latest franchising news from around the country.