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On June 6, 2003, the Court of Appeals for the Federal Circuit seemingly breathed new life into research tool patents when it held that the use of patented peptides for drug discovery was not exempt from infringement under the "safe harbor" provision of 35 U.S.C. '271(e)(1). <i>Integra Lifesciences, Ltd. v. Merck KGaA,</i> 331 F.3d 860 (Fed. Cir. 2003). In an earlier case, <i>Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc.,</i> No. 95 Civ. 8833, 2001 WL 1512597 (S.D.N.Y 2001), a district court had ruled that the use of patented intermediates for drug screening was non-infringing, thereby implicating that the use of other research tool patents for drug discovery was likewise sheltered from infringement liability under '271(e)(1).
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Recent cases of importance to your practice.
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One of the fundamental policies of the Bankruptcy Code is to provide an equal distribution to all creditors of a debtor's estate. There are a variety of tools under the Bankruptcy Code to accomplish these goals. One such power is the statutory limitation of a landlord's rejection damage claim under section 502(b)(6).
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<b><i>Part One of a Two-Part Article</i></b> With corporate fraud and bankruptcy filings on the rise, creditors are increasingly looking to related entities, corporate shareholders, directors and officers to pay their claims when the corporation goes belly-up. Unfortunately, bankruptcy courts have made it virtually impossible for creditors to maintain individual alter ego claims against the debtor's shareholders and affiliates. As a result, crafting an alter ego claim that will survive an attack by the bankruptcy trustee (or the bankruptcy court itself) requires finesse.
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A recent jury verdict in California threatens to break wide open the uneasy issue of aggregated insurance payments in asbestos litigation. <i>Fuller-Austin Insulation Co. v. Fireman's Fund Ins. Co., et al.</i>, No. BC 116835 (Calif. Super. Los Angeles Co.). Its ramifications, however, reach far beyond insurance coverage litigation into every asbestos-related or mass tort bankruptcy.
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When your motions for summary judgment in product liability cases are denied, your usual reaction is probably to move on and to begin focusing your case on how to win at trial. While that is usually the best approach, that doesn't mean you necessarily have to give up on the hope of winning the case on summary judgment before trial. Orders denying summary judgment are interlocutory, and so a court has the inherent power to reconsider them and change them at any time before entry of final judgment. <i>See, e.g., Freeman v. Kohl & Vick Mach. Works, Inc.</i> 673 F. 2d 196 (7th Cir. 1982). Nothing in the rules bars a party from filing a renewed motion for summary judgment and, as described below, there are times when such a motion is called for.
Destructive testing or examination of evidence in product liability cases may be a high-risk proposition. Proposing a destructive test or examination often discloses the thought processes of counsel or expert witnesses. In most cases, there probably will be only one opportunity to perform a destructive test or examination, so it must be done right the first time. The party proposing the destructive test or examination will be bound by the result, good or bad.
Highlights of the latest product liability cases from around the country.
A successful defense against a consumer's claim that she was damaged from using a medication manufactured by one of your pharmaceutical clients may hinge significantly on the testimony provided by a research scientist, a pharmacologist, or perhaps a warnings or a marketing specialist. While these witnesses have key sources of knowledge about the product, its development, testing, labeling and/or distribution, they may also bring with them fears and inadequacies that could result in the ambush of your defense.
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One way for a manufacturer to ensure it has a proper warning on its product is to "use credible industry groups and trade associations, such as American National Standards Institute, for advice and guidance on labeling." "Manufacturers Beware: Liability When Warning Labels Are Ignored or Disobeyed," Product Liability Law & Strategy, July, 2003, Pg. 1.The Web site for the American National Standards Institute (ANSI) is <i>www.ansi.org.</i> It is a private, nonprofit organization (501(c)(3)) that administers and coordinates the U.S. voluntary standardization and conformity assessment system.