In last month's newsletter, we discussed the financial burdens pharmaceutical and biotech firms face due to the Patent and Trademark Office's (PTO) policy of restriction practice -- the restriction of a patent application to prosecution of a single claimed invention per filing fee. Now we look at ways potential patentees can economically work with these restrictions.
Health and Human Services Secretary Tommy G. Thompson announced on Feb. 26 that a task force had been created to advise and assist HHS in determining whether and how drug importation into the United States could be conducted safely. The Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) directed the HHS to lead a comprehensive study to be completed by December 2004, gauging both the positive and negative effects that can be expected on the health of American patients, on medical costs and on the development of new medicines if pharmaceutical products are imported into the United States from countries with lower drug prices.
The latest rulings of interest to your practice.
As most pharmaceutical and medical device products liability cases are based on state law claims, diversity jurisdiction may be the only way to obtain a federal forum. Plaintiffs often join non-diverse defendants, such as local doctors, hospitals, pharmacies, employees and/or sales representatives, in an attempt to defeat diversity jurisdiction and prevent removal of cases to federal court. Defendants -- who generally prefer to proceed in federal court -- may be able to remove such cases for fraudulent joinder using some of the following arguments.
The latest from the Agency that you need to know.
On Jan. 9, 2003, the U.S. Supreme Court granted certiorari to decide whether a fair use defense to trademark infringement can trump a finding of likely confusion. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 328 F.3d 1061 (9th Cir. 2003), cert. granted, 124 S. Ct. 981 (2004). The decision to grant certiorari in this case is especially interesting in light of other recent cases also from the Ninth Circuit in which certiorari was denied.
Intellectual property disputes typically have been resolved through litigation rather than arbitration. Litigators have seen arbitration as a dispute resolution method geared at matters of private contract. Because intellectual property's very existence has been a product of public policies supporting invention, branding and creativity, the courts have seemed to be the more appropriate locale to handle these disagreements. In the last 20 years, however, arbitration has received increasing attention as an acceptable method of resolving intellectual property disputes.
Trade secret plaintiffs sometimes couch their claims under other, alternative titles, such as "common law misappropriation," "unfair competition," or "breach of confidence." The tactic is often a deliberate ploy to avoid complying with state Uniform Trade Secrets Act (UTSA) statutes and case law governing trade secret litigation — a body of law that favors former employees in many respects.
Highlights of the latest intellectual property news and cases from around the country.
Intellectual property is an asset class and patents, prominent members of that class, are call options on the economic value of the covered technology. Because patent value can be substantial, and because the values of companies can be significantly impacted by the value of IP assets, the intersection of finance and patent law is increasingly common. In particular, here are four vignettes in which they intersect.
