A Consideration with Post-Issuance Practice: Intervening Rights
December 05, 2005
The day you have been waiting for has finally come. The patent application that your company believes covers key technology has issued. Your company may be, for example, a startup with its first marketable product or an established business trying to extend its presence in a niche market or enter into a new one. The patent provides your company the desired protection of the marketplace. There's just one problem. It appears that the scope of the patent may need to be altered to improve your position in the marketplace. For instance, a competitor may have successfully designed around the scope of your patent's claims. In some such instances, there may not be a pending application by which you, the patent owner, can capture the competitor, and post-issuance practice is the only mechanism. So, amending your claims, <i>eg</i>, to read on your competitor's products may seem like a sure way to capture him as an infringer and strengthen your position.
Infringement By Source Code 'Golden Master': Developments in Patent Infringement Law Concerning Extra-U.S. Sales
December 05, 2005
Until recently, U.S. software companies comfortably operated under the assumption that selling software that was copied from a "golden master" CD outside of the United States, and which was sold only to customers outside of the United States, did not infringe U.S. patents. Recent developments in the law have destroyed that comfort and made clear that infringement liability may very well lie for exactly those types of foreign sales.
A Primer for Successor Corporations on Avoiding Potential Product Liability Exposure
December 02, 2005
Among the myriad acquisitions, mergers, assets sales and other transactions that are consummated every day by companies engaged in the business of manufacturing, distributing or selling products, there is hardly a transaction imaginable that does not somehow implicate a precedent corporate entity. A corporation that "succeeds" to another company's operations may be deemed responsible for the latter's liabilities, including claims with respect to products manufactured, sold or distributed before the acquisition. The resulting liability, if visited upon a successor, may subject it to exposure far beyond anything ever contemplated at the time of the transaction ' and in amounts that far exceed the value of the deal or the worth of the entire company.
Online: Find Product Liability Articles on the Web
December 02, 2005
If you're looking for articles pertaining to product liability litigation, the Rand Institute for Civil Justice ("ICJ") has a Web site that lists and summarizes a variety of articles that are available for purchase or for free. Go to <i>www.rand.org/icj/pubs</i> and click on "Product Liability."
Supreme Court Hands Partial Victory to Supporters of Federal Pre-emption
December 02, 2005
On April 27, 2005, the U.S. Supreme Court, in a 7-to-2 decision, handed supporters of federal pre-emption a narrow victory in <i>Bates v. Dow Agrosciences LLC</i>, __U.S.__, 125 S.Ct. 1788, __L.Ed.2d__ (2005). In <i>Bates</i>, the majority's decision endorsed the principal that state law fraud and failure-to-warn claims may be pre-empted in appropriate circumstances under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or "Act"), 7 U.S.C. §136 <i>et seq</i>. The <i>Bates</i> majority held that where such state law claims impose requirements on an insecticide manufacturer that are "in addition to or different from" labeling or packaging requirements under FIFRA, the claims will be barred by FIFRA's pre-emption provision, 7 U.S.C. §136v(b).
Case Notes
December 02, 2005
Highlights of the latest product liability cases from around the country.
Practice Tip: Expert Preparation ' The Ipse Dixit Problem
December 02, 2005
Until 1997, when the Supreme Court decided <i>General Electric v. Joiner</i>, 522 U.S. 136, (1997), I had never heard of the term <i>ipse dixit</i>. Now, almost every month I read a decision in which that phrase appears. <i>Ipse</i>, in Latin, is "he himself"; <i>dixit</i>, "to say." Its dictionary meaning is "an unsupported assertion, usually by a person of standing."
