Exploring the Law of Embodiments After Phillips
November 28, 2006
The decision by the Federal Circuit in <i>Phillips v. AWH Corp.</i>, 415 F.3d 1303 (Fed. Cir. 2005) (en banc) in July 2005 reaffirmed and amplified many of the court's prior decisions addressing various aspects of patent claim construction. In particular, it emphasized the critical role of the specification in determining what the claim means and stated that the specification 'is the single best guide to the meaning of a disputed term.' While the specification provides a number of sign posts or guides to interpreting a claim, one of the most important considerations is whether and how the patentee may have limited the invention to certain embodiments or may have distinguished the invention from prior inventions. It is important, therefore, for both patent prosecutors and litigators to understand how the Federal Circuit has approached the issue of limiting claims in a post-<i>Phillips</i> world based on the embodiments disclosed in the specification.
Be Wary of What You Ask for: The Dangers of Improper Claim Drafting
November 28, 2006
Some inventions are easily characterized as a pure process, machine, manufacture, or composition of matter and lend themselves to a single independent claim and a simple set of dependent claims. Many inventions, however, involve two or more of the statutory categories of subject matter, and require several independent claims, often creatively drafted, with mapped sets of dependent claims for complete coverage. Can a claim that straddles the line between the statutory categories of subject matter or that does not technically distinguish the invention from other claims be found invalid as an improperly drafted claim?
Developments of Note
November 28, 2006
Recent developments in e-commerce law and in the e-commerce industry.
Case Notes
November 28, 2006
Highlights of the latest product liability cases from around the country.
Exploring the Broader Application of the Delaware Court's 'Daubert' Decision
November 28, 2006
Companies that made and sold automotive friction materials (brakes and clutches) have invoked <i>Daubert</i> (or <i>Frey</i>) in attempts to preclude plaintiffs' evidence that the asbestos, once used in such products, contributes to causing disease. <i>See Daubert v. Merrell Dow Pharmaceuticals, Inc.</i>, 509 U.S. 579, 113 S.Ct. 2786 (1993). These defendants rely upon what they characterize as undisputed epidemiological evidence, purportedly showing that there is no significant increased risk associated with exposure to friction products. Their position is that such epidemiology is conclusive and that, without contrary epidemiology showing an increased risk, plaintiffs' causation evidence cannot pass muster under <i>Daubert</i>.
States Eyeing Online Dating Industry
November 28, 2006
Several states recently began cracking down on the online dating industry by proposing new laws that would, among other things, mandate criminal background checks on all people looking for love on the Internet.
Targeting New e-Commerce Customers
November 28, 2006
Today, no one can ignore our society's commitment to provide the disabled as much access to public life as possible. From user-friendly parking spots to Braille-enabled touch pads to omnipresent curb cuts ' to cite just a few common examples ' the American ideal (if not always the practice) is clearly equal access.<br>In this holiday season, certainly that commitment extends to shopping. Major retailers, from Wal-Mart to Target to Toys R Us, all proclaim the accommodations available to the disabled at their stores in their print ads. Toys R Us even trumpets a special catalog for 'differently-abled kids' on its home page; after all, children enjoy presents ' and fantasizing about them ' whether or not they have a disability
Excluding Unreliable Expert Testimony in Fire Cases
November 28, 2006
The first part of this article discussed the difficulty entailed in determining the cause of fires, especially those involving appliances, and the evidentiary problems that arise regarding expert testimony. Under Daubert and now Federal Rule of Evidence 703, which codifies Daubert principles, federal courts over time provided rules that permit assessment of challenged fire expert testimony to determine whether it was fairly admissible. This second installment discusses the body of fire cases establishing rules for assessment of expert testimony that has now developed.
The Virtual Taxman Cometh?
November 28, 2006
In <i>South Park</i>'s 147th episode, 'Make Love, Not Warcraft,' Stan, Kyle, Cartman and Kenny dedicate weeks of their lives playing World of Warcraft, determined to defeat a rogue player who keeps killing their online characters. Just when it appears that the boys will be defeated by this online evildoer, World of Warcraft executives rush in and deliver the Sword of a Thousand Truths, a superpowerful magical weapon that allows the boys to win their battle and carry the day. <br>But, wait, was that a taxable event?
