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Descriptive terminology is essential to providing effective patent protection for nanotechnology inventions, particularly from the perspective of future licensing and litigation activities. One of the key difficulties in patenting nanotech inventions, however, arises from the absence of established terminology. Failure to clearly define one's invention can lead to a number of unfortunate consequences, ranging from an overly narrow patent covering a limited scope of subject matter to a vague or overly broad patent susceptible to invalidation. This article will discuss: 1) recent decisions from the Federal Circuit that reveal how the use of descriptive terminology is essential to patenting nanotech inventions effectively, 2) how those decisions pose special problems for nanotech inventions, and 3) how those problems can be addressed through nanotech inventors acting as their own lexicographers and defining key terms in their patent specifications.
Features
Highlights of the latest intellectual property news and cases from around the country.
The European Union ("EU") has once again failed to come to an agreement regarding a single unitary Community patent. At the May 18, 2004 Competitiveness Council meeting, the Council of the European Union ("Council") could not reach a unanimous agreement on the proposal for a Council Regulation on the Community patent. The only outstanding issue that has been a stumbling block all along, <i>ie,</i> languages and translation costs of the patent claims, remained unresolved. The EU's main decision-making body concluded that all conceivable compromise solutions had been tried. Accordingly, it stated its intent to refer the matter to the Presidency of the European Council.
For more than a century, original equipment manufacturers ("OEMs") have sought, with only limited success, the aid of the courts to enforce restrictions against competitors' sales of products designed to complement or replace components of their proprietary technologies. At stake in each of these cases was a lucrative aftermarket for products directed to the OEM's patented technology and a "razor-and-blades" business model by which the OEM strove to attain a large installed user base for its equipment in hopes of "locking-in" customers to that aftermarket.
Recent rulings of interest to you and your practice.
Features
In the first installment of this article, published last month, we discussed the problem of frivolous lawsuits against drug and medical device firms and how state legislatures have been moving to curb frivolous suits in another arena - professional negligence - through the introduction of a requirement for an affidavit of merit. This month, we look at how the lessons learned in the case of professional negligence suits could be applied to reduce the filing of unfounded complaints against drug and medical device makers.
Times have changed. Depositions, used at trial for impeachment purposes, are now more than just dry words on a page. Increasingly, they are on videotape and the courts are happy about that. <i>Weseloh-Hurtig v. Hepker</i>, 152 F.R.D. 198, 201 (D. Kan. 1993). Should lawyers feel the same way? Well, it depends on whether you are the attorney taking the deposition or if you are the one whose client's deposition is being captured on video. It can be a blessing or it can be the death knell for your case. Let's look at this developing trend.
The ongoing effort to resolve globally the problem of overwhelming mass-tort liability continues this year through legislation. A Senate bill to create a trust administered by the Department of Labor, funded by industry and insurance contributions, was voted down in April. Whether this proposed resolution ultimately fares better than those preceding it remains to be seen. In the meantime, however, the Rand Institute for Civil Justice reports that by the end of 2002, at least 56 companies had turned to bankruptcy to find the resolution and finality they needed to get back to their business. Others will undoubtedly follow before any global solution is ultimately reached.