Trademark Fair-Use Analysis Hits Snag
May 30, 2007
Few issues in trademark and advertising law can compete in importance with this: whether a competitor can use another's trademark in advertising its products or services. With the battle for consumer attention growing increasingly aggressive as the number of products and services proliferate, and the means for advertising and promoting them expanding at an even more alarming rate, the importance of brands and their recognition by consumers ' and the surrounding legal issues ' have never been more significant.
Product-By-Process Claim Construction: Conflict in Federal Circuit Precedent Remains Unresolved
May 30, 2007
Construing claims that use the process by which a product is created to define the invention ' that is, product-by-process claims ' was not made any easier by the Federal Circuit's recent decision in <i>SmithKline Beecham Corp. v. Apotex Corp.</i>, 439 F.3d 1312 (Fed. Cir. 2006). The Federal Circuit again declined to resolve the long-standing conflict between two decisions ' the 1991 decision in <i>Scripps Clinic & Res. Foun. v. Genentech Corp.</i>, 927 F.2d 1565 (Fed. Cir. 1991), which held that product-by-process claims <i>should not</i> be limited by the process steps in the claims, (<i>i.e.</i>, such claims cover an identical end-product regardless of the steps used) and the 1992 decision in <i>Atlantic Thermoplastics Co. v. Faytex Corp.</i>, 970 F.2d 834 (Fed. Cir. 1992), which held that product-by-process claims <i>should</i> be construed to only cover the end-product if produced by the specifically claimed process steps. As explained below, this state of affairs warrants that patent applicants and litigants stay tuned to the case law and adjust their respective claim drafting and analysis strategies accordingly.
Corporate Exposure Under the Alien Tort Claims Act
May 29, 2007
Despite the U.S. Supreme Court's effort to restrict and clarify the Alien Tort Claims Act ('ATCA'), the divergence between judicial interpretations of the law, and the number of ATCA lawsuits continues to grow. Some courts have construed the ATCA narrowly, as the Supreme Court urged, limiting the cases that can be brought. Others have interpreted the Act broadly, recognizing novel claims and theories of liability. Emblematic of that schism are two cases decided last year, one filed in New York involving an energy company's role in oil development in Sudan, and one in California involving Papua New Guinea mining operations. These ATCA cases and others like them are part of a rising wave of high-stakes litigation against corporations and their executive officers, and necessitate especially careful attention by in-house counsel regarding overseas operations.
The Employee Freedom of Choice Act
May 29, 2007
After years of lobbying, the Employee Free Choice Act was introduced in 2003, but did not advance. Similar legislation was proposed again in 2005, co-sponsored by Sen. Edward Kennedy (D-MA) and Rep. George Miller (D-CA). While it did not pass either the House or Senate, it attracted widespread notice by gaining the support of 44 Senators and 215 Representatives (only three short of the 218 House votes required for passage). Predictably, in early February 2007, with the new Democratic Congress now in power, Rep. Miller, in his role as Chairman of the House Education and Labor Committee, reintroduced this proposed legislation (H.R. 800) containing all three items on the labor movement's wish list.
Whistleblowing with a French Twist
May 29, 2007
Last month, we discussed the fact that whistleblowing in France is a rather unwelcome legal obligation. France's total opposition to whistleblowing has softened over time and has been accompanied by a greater understanding and appreciation of its implications. Nevertheless, strong pervasive principles of French law continue to govern this domain. We referred our readers to a recent report on Whistleblowing and Ethical Charters, which was commissioned by the French Minister of State for Employment and Professional Insertion. The Antonmatt'i-Vivien report was aimed at encouraging the analysis and clarification of this grey area of French law. We continue this month with a look at how whistleblowing is implemented in France.
The 2007 Proxy Season
May 29, 2007
On July 26, 2006, the Securities and Exchange Commission ('SEC') formally adopted new executive compensation disclosure requirements under Item 402 of Regulations S-K ('Item 402'). With the ink barely dry, the SEC on Dec. 22, 2006, modified the reporting requirements related to stock options and stock awards on the Summary Compensation Table, the Director Compensation Table and the Grants of Plan Based Award Table (the 'Item 402 Amendment'). The new rules significantly increase the required disclosure for the 2007 proxy season and ensure that there will be plenty of interesting reading for shareholders, executives and regulators.
Procurement Fraud Enforcement
May 29, 2007
Each year, the federal government spends several hundred billion dollars to obtain goods and services from corporations and other nongovernmental entities. Under the critical eye of the nation's taxpayers, the federal government has amplified its own scrutiny of the ethics and integrity of its procurement officers and those companies with which it contracts. Via new national legislation and investigative initiatives, the attention of Capitol Hill and federal law enforcement offices across the nation is keenly focused on the prevention, detection and punishment of procurement fraud. It is a brand new day ' and a potentially dark one for the unwary governmental contractor.
On the Move
May 29, 2007
Who's moving where; who's doing what.
