Confusion About Section 365(b)(2)(D)
December 01, 2003
It is generally understood that bankruptcy law requires debtors to cure all contractual defaults before assuming any executory contract because debtors would receive a windfall without such requirement: They could assume (and compel performance on) contracts that they had breached without paying any resulting damages claim. If such a result were permitted under the Code, failing companies would have even less incentive to continue performing on contracts pre-petition because they could presumably seek to assume those contracts in bankruptcy without penalty.
Is Used Better than New? Evaluating Trademark Use for Gray Goods, Diverted Goods and Altered Goods
December 01, 2003
Importers Inc. buys used HEAVY WEIGHT motorcycles in Japan and sells them in the United States. Heavy Weight Inc., the owner of the HEAVY WEIGHT trademark in the United States and Japan, seeks to enjoin their sale. Heavy Weight proves that the imported HEAVY WEIGHT motorcycles are materially different from their domestic counterparts because, among other things, they have smaller tires and a lower maximum speed. Although Importers Inc. includes a disclaimer at the point of sale, the court rules for Heavy Weight.
IP News
December 01, 2003
Highlights of the latest intellectual property news from around the country.
High Reversal Rate of Markman Decisions Weakens their Intended Value
December 01, 2003
In <i>Markman v. Westview Instruments, Inc.,</i> 517 U.S. 370 (1996), the Supreme Court held that patent claim construction is an issue of law to be decided exclusively by the court rather than the jury. As a result, district court judges now routinely conduct what is referred to as pretrial <i>Markman</i> hearings in order to resolve disputes about the meaning of words or phrases in patent claims. Prior to <i>Markman,</i> claim construction took place at trial and was decided by the judge or the jury with appropriate instructions from the court.
Whether to Cancel National Trademark Registrations in Favor of a CTM
December 01, 2003
Why maintain national trademark registrations in Europe? Your biggest client, the hypothetical Copsi-Cola, Inc., a U.S. beverage manufacturer, with a 95-year-old U.S. trademark registration for the popular POWERSWEET drink, a high-sugar soda, is attempting to expand its trademark rights in the European market and needs your advice. Copsi-Cola has also owned registrations in three of the 15 European Union ("EU") member countries for more than 50 years: France, Spain and Portugal. Copsi-Cola has begun market research in advance of selling its POWERSWEET drink in five more EU member countries, including the United Kingdom, Germany and the Benelux countries, and has asked you to file applications in the national trademark offices in those countries. Copsi-Cola also wants the option of using its mark in all EU member countries.
Patent Protection or <i>Per Se</i> Antitrust Violation?
December 01, 2003
As the winter months approached, a storm was brewing in the antitrust world. The U.S. Courts of Appeals for the Sixth and Eleventh circuits have split over the per se illegality of Hatch-Waxman patent-settlement agreements by which a patent-holding drug maker pays a generic drug company to delay its entry into the market. The Federal Trade Commission (FTC) has harshly criticized these agreements, and now the Supreme Court has an opportunity to calm the fury.
OK to Use 'Research Tool' Patents Offshore?
December 01, 2003
The U.S. Court of Appeals for the Federal Circuit has confirmed that there is no patent infringement liability under 35 U.S.C. 271(g)(1) for the offshore use of a "research tool" patent when only the information gained from such offshore use is introduced into the United States.
Study: Forget the 'Blockbusters'
December 01, 2003
A study whose results were reported December 8 asserts that the pharmaceutical industry's "blockbuster" approach to developing new drugs is no longer viable in today's marketplace.
Case Briefing
December 01, 2003
Recent rulings of importance to you and your practice.
Canadian Pharmaceutical Agency Wants Ban on Exports to U.S.
December 01, 2003
The Canadian National Association of Pharmacy Regulatory Authorities (NAPRA), Canada's voluntary umbrella association of provincial and territorial pharmacy licensing bodies, has asked the Canadian government to legislate against the export of drug products to the United States.
