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Coverage for Spoliation Claims
June 30, 2009
The most controversial and far-reaching remedy for spoliation has been its recognition as an independent tort claim for either intentional or negligent destruction of evidence.
Disgorge This: The Restitution Defense Meets the Duty to Defend
June 30, 2009
The restitution defense to insurance coverage proceeds from a simple and logical premise. If I steal money from you and am forced to return it, there is no loss for my insurer to reimburse because I never had a right to the money in the first place. Life is rarely so simple, however, and insurers have asserted the restitution defense — with varying degrees of success — in a broad range of situations, some having little connection to the original premise.
Foreign Defendants: Alternative Service via e-Mail
June 29, 2009
Federal courts are increasingly allowing litigants to serve foreign defendants via e-mail under certain circumstances.
Takeda v. Mylan: High-Cost Generic Drugs from Baseless Paragraph IV Certifications
June 29, 2009
In <i>Takeda v. Mylan</i>, the Federal Circuit revisited attorney fees in the context of an ANDA application. In doing so, the court provided additional guidance regarding factual circumstances that may support such awards and addressed several of the unanswered questions from the <i>Yamanouchi v. Danbury</i> opinion.
Kubin and Permissibility of the 'Obvious to Try' Standard
June 29, 2009
Urged by the Supreme Court's opinion in <i>KSR</i>, the Federal Circuit has addressed its precedent regarding the obvious-to-try standard, positively stating a standard implied in its previous holdings.
Patent Opinions, Willfulness and Inducement
June 29, 2009
Recent decisions have begun to fill in the gaps left by <i>In re Seagate Technology, LLC.</i> They suggest that a competent opinion is still an effective defense to a willfulness charge, and that a jury may consider a defendant's failure to obtain an opinion when determining the defendant's intent for purposes of willfulness and inducement. Also, legitimate trial defenses may be sufficient to establish that a defendant's actions at the time of infringement were not "objectively reckless.
Damage Calculations Post eBay: The Economic Considerations
June 29, 2009
This article provides an overview of how various courts have dealt with the question of post-verdict compensation in the wake of the <i>eBay Inc. v. MercExchange L.L.C.</i> verdict.
Properly Name Inventors on Patents
June 29, 2009
A patent can be held invalid for incorrect inventorship, and co-inventorship of one, even relatively insignificant, claim can entitle a co-inventor to an ownership stake in every claim of the patent. Moreover, failure to join all co-inventors/owners as plaintiffs can prevent the real party in interest from enforcing a patent. A recent decision by the Court of Appeals for the Federal Circuit, <i>Nartron Corp. v. Schukra U.S.A., Inc.</i>, is illustrative of such risks
In re Kubin: Federal Circuit Ignores Principles of Structural Obviousness in Applying 'Obvious to Try' Test
June 29, 2009
<i>In re Kubin</i>, 2009 WL 877646 (Fed. Cir. April 3, 2009), now appears to be the first case in which a defined biochemical structure was found to be obvious despite the fact that the structure was previously unknown and unpredictable.
Hoping to Write a Happy Ending On Google Books
June 29, 2009
In April, when the federal judge overseeing the settlement involving Google's online book search service gave authors four more months to opt in to, or out of, the deal, many copyright insiders were surprised. Not Allan Adler. For Adler, vice president for legal affairs at the Association of American Publishers ("AAP"), U.S. District Court judge Denny Chin's decision to delay what was a May deadline until September marked just another twist on a long, bumpy road.

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