The Role of Objective Indicia of Nonobviousness When Evaluating Whether a Patent Claim Is Obvious
By Isaac Kim and Richard Kurz – March 23, 2021
Amarin Pharma, Inc.’s certiorari petition to the Supreme Court raises the question of whether objective indicia of nonobviousness should be evaluated using a “totality of the evidence” approach or as part of a “prima facie” framework.
Not Lawyering Up?!: A Review of the CASE Act
By April D. Davenport – February 19, 2021
The act seeks to change the status quo by providing artists with a real ability to protect themselves and their creations.
The Importance of Diversity and Innovation
By Tashia Bunch – February 19, 2021
We must identify current barriers to equal access and opportunities, and provide solutions for breaking down those barriers.
What Is the Future of Legal Artificial Intelligence?
By Michael Andrew Iseri – February 19, 2021
A discourse on AI components, levels, and biases.
An IPR Challenge to Any Patent Claim May Be Lost If Not Comprehensive and Rigorous Enough
By Robert M. Asher – October 22, 2020
The Federal Circuit holds that the Patent Trial and Appeal Board may uphold patentability of a claim on a basis not raised by the patent owner.
The Last Laugh: A Case Study in Copyright of Comedy and the Virtual Identity Standard
By Matthew L. Pangle – July 14, 2020
The virtual identity standard is the correct standard to judge infringement of fact-based jokes and yields positive implications for the comedy industry.
Trade Secret Strategy Update: Data on the DTSA
By Rachel Bailey – July 14, 2020
Judges see trade secret claims sort of like torts, sort of like contracts, and sort of like intellectual property. Employment attorneys are filing these cases.
Four Privacy Law Considerations for Trademark Counsel
By Tara Aaron-Stelluto – July 14, 2020
Some data privacy laws interfere with trademark counsel’s ability to investigate infringement and enforce marks.
Eureka! Discovering Trade Secret Protection for Unpatentable Discoveries
By John A. Stone – July 14, 2020
Learn why life science and biotech companies should carefully evaluate whether, when, and how to use trade secret protection.
You Stole My Dance Moves: Copyright Lawsuits over Choreography against Creators of Fortnite
By Ross Bagley – February 18, 2020
Recent cases highlight both the current vulnerability of works that feature recognizable dance moves and the difficult threshold for those seeking to protect those dances as choreographic works under the Copyright Act.
Infringement on Instagram
By Ashley J. Heilprin – February 18, 2020
Recent paparazzi lawsuits against celebrities sharing photos on social media spark clash over celebrities’ right of publicity.
Is There a Doctor in the House?: Medical Diagnostic Patent Litigation in Critical Condition
By Karen McKenzie – February 18, 2020
Keys to patent survival as seen in more recent cases of subject matter ineligibility.
Proving Damages in an Emerging Industry: Lessons from Waymo v. Uber
By Ronald T. Coleman Jr. and Anne Horn Baroody – May 14, 2019
The case illustrates the efforts plaintiffs should undertake to tie their damages to the specific misappropriation.
Early (and Detailed) Disclosure of Trade Secrets: The Battle at the Heart of Trade Secrets Litigation
By David M. Caves – May 14, 2019
The cases are not uniform and continue to provide plenty of ammunition for both sides.
Why Litigators Should Care about Trade Secret Management
By Nicole D. Galli – May 14, 2019
More can be done ahead of time to protect the trade secrets and create better and more easily accessible evidentiary records for enforcement actions.
Political Trade Secrets: Intellectual Property Defense to Political Hacking
By Daniel Kegan – May 14, 2019
An effective DTSA litigation may not immediately reverse an election result, but it might severely weaken the conspirators.
The Secret to Trade Secrets Is Keeping Your Secrets Secret
By John A. Stone – May 14, 2019
Recent decisions from 2019 have underscored that parties seeking trade secret protection must take “reasonable measures” to maintain the confidentiality of the information in question.
Looking Ahead to 2017: Where Will Patent Venue Be Appropriate?
By Ben Hodges – February 7, 2017
District courts appear to be embracing a totality of the circumstances test.
Patent Law’s Goldilocks Rule: Anticipatory Suit Exception to the First-to-File Rule
By Aaron Frankel and Nobumasa Hiroi – February 7, 2017
Accused infringers must show that the controversy is sufficiently immediate but was not filed in anticipation of imminent litigation.
Trade Secrets Venue Considerations
By Daixi Xu and Brent Caslin – February 7, 2017
Venue selection can be vital to the outcome of a case.
The Timing for Removal of a Patent-Related Counterclaim Post-AIA
By Michael A. Oropallo and Jason C. Halpin – February 7, 2017
A defendant must be diligent in acting to remove before the 30-day window closes.
TC Heartland, the VENUE Act, and the Direction of Patent Law
By Benjamin J. Christoff – February 7, 2017
The focus should be on strengthening patent rights—the legal incentives that drive innovation.
The Important Things Have Not Changed
By Brad Lyerla – November 2, 2016
Reading, thinking, writing, and arguing about the interplay between science and law.
Using Litigation Finance to Solve for Intellectual Property Risk
By Katharine Wolanyk – November 2, 2016
Three ways lawyers are using litigation finance to spur growth and generate revenue.
The Rise of Rule 12 Motions
By Ben Hodges – November 2, 2016
Defendants can realistically hope to end a case early through motions to dismiss and motions for judgment on the pleadings.
Strategic Protection of Knowledge Assets: Wearable Tech Features
By Candice Decaire and Dario Machleidt – June 29, 2016
Are wearable tech features better protected by patent, copyright, or as mask works/trade secrets?
Making Sense of "Things" in a Programmable World
By Peter H. Hanna – June 29, 2016
Lessons from the smartphone patent wars and how they may apply to future IoT-related litigation.
Doctrinal Quandaries with 3D Printing and Intellectual Property
By Lucas S. Osborn – June 29, 2016
Patent owners will want to control the digital files, and that is where the doctrinal difficulties begin.
Shall We Dance? FDA Biosimilar Approval Process Litigation Options
By Henrik (Rik) D. Parker – March 14, 2016
The litigation options available to biologic innovators and biosimilar applicants are in flux as district courts and the Federal Circuit interpret the BPCIA.
International Conflicts over Patenting Human DNA
By Alyson L. Wooten – March 14, 2016
The High Court of Australia recently emphasized the public policy issues concerning gene patents.
Unanswered Issues in the Federal Circuit's Amgen v. Sandoz Decision
By Ronald C. Kern Jr. – March 14, 2016
Although the Federal Circuit declined to rehear the case, lower courts are beginning to address unresolved issues regarding biosimilars.
Biosimilar Litigation in the United States and South Africa
By Jonathan Stroud, Jarrad Wood, and Ronny Valdes – March 14, 2016
A comparison of pharmaceutical litigation in the United States and South Africa can teach us about the future of biosimilar litigation.
Analysis of the Five Amicus Briefs in Amgen v. Sandoz
By Christopher VanDeusen – March 14, 2016
They address whether the patent dance is mandatory and whether notice of pre-FDA-approved commercial marketing is effective.
Practice Guide to Section 285 "Exceptional Case" Findings
By John Kenneth Felter and Vincent Ling – January 11, 2016
Experienced practitioners highlight factors courts consider post-Octane in finding a case "exceptional."
Awards of Attorney Fees under the Lanham Act Post-Octane Fitness
By Michael D. Steger with Paul Cirner – January 11, 2016
District courts appear to be embracing a totality of the circumstances test.
Strategies for Preventing an Award of Attorney Fees
By Kristopher L. Reed and Samantha Picans – January 11, 2016
Minimize the risk of section 285 sanctions.
Fee-Shifting Decisions Can Trigger USPTO Ethics Investigations
By Michael E. McCabe Jr. – January 11, 2016
The cost of Octane is that any court or media report of misconduct alerts the USPTO to a potential ethics violation.
Recovery of Expert Fees Driven by More Than Octane
By Daniel W. McDonald and Linhda Nguyen – January 11, 2016
To truly make the prevailing party whole, Congress should amend the attorney fee statute to include expert fees.
E-Discovery and the Internet of Things
By Maureen O'Neill – November 3, 2015
The pervasive nature of online connectivity dramatically changes our lives, but it also brings material changes to electronic data in litigation.
Octane and Highmark: One Year Later
By Alison Haddock Hutton and S. Neil Anderson – September 3, 2015
After the standard for granting and reviewing attorney fee awards was relaxed, data show an increase in successful motions for them.
International Patent Exhaustion and Postsale Restrictions
By Joshua D. Curry – September 3, 2015
Federal Circuit en banc will soon address whether foreign sale exhausts patent owner's rights and whether limits on patented items are enforceable.
The Implications of the Supreme Court's Recent Trademark Rulings
By Richard S. Mandel – September 3, 2015
Decisions on tacking and issue preclusion may impact likelihood of confusion issues in TTAB proceedings.
The Federal Circuit's Application of Alice Corp. v. CLS Bank
By Ben Hodges – September 3, 2015
In one year, computer software inventions have been found eligible for patenting just once.
Federal Circuit Claim Construction after Teva
By Joseph L. Stanganelli, M. Eric Galvez, and Bella S. Satra – September 3, 2015
Post-Teva, if the district court adopts extrinsic evidence as part of its decision, the ruling may be preserved upon review.
Commil v. Cisco Systems: The End of Induced Infringement?
By Jonathan A. Choa – September 3, 2015
Recent decision confirmed requirement of both knowledge of the asserted patent and the infringing nature of the accused acts.
Procedural Grounds for Raising a Section 101 "Alice" Motion
By Kenneth R. Adamo, Eugene Goryunov, Greg Polins, and Rajat Khanna – June 16, 2015
These motions may be made at nearly every stage of the case, but early challenges are more likely to be successful.
Facing Section 101 Challenges in the Biological and Chemical Arts
By Leslie T. Grab and Cynthia B. Rothschild – June 16, 2015
Recent USPTO guidance and court decisions provide strategies for current and future litigants.
Supreme Court Resurrects Its Jurisprudence on Patentable Subject Matter
By Chris Mitchell – June 16, 2015
With the advent of business method patents and their increasing involvement of litigation, the exceptions to section 101 patentability are once again considered.
Combating a Petition for CBM Review on Section 101 Grounds
By Stan Schlitter – June 16, 2015
Ensure that the patent challenge is valid.
Defensive Strategies in View of the Changing Patent Eligibility Landscape
By Nate Cassell and Jennifer Giordano-Coltart – June 16, 2015
Portfolio audits and further prosecution before the USPTO may help patent owners hurdle the higher bar.
Section 101 Challenges in the Courts and at the PTAB
By Daniel E. Cummings – June 16, 2015
Data comparison reveals that patent challengers have been more successful in one arena over the other.
Trade Secrets: What's the Price of Stealing Information?
By Walter Judge – May 22, 2015
Damages for misappropriation can be full refund of disloyal ex-employee's severance pay.
Keep Your 'Friends' Close
By Helen H. Ji – May 6, 2015
Can businesses protect social media contacts as trade secrets?
Obtaining Exclusion Orders in the USITC and Injunctions in District Courts
By Bryan A. Kohm and Lauren E. Whittemore – March 30, 2015
Learn about the limits and advantages of obtaining an order or an injunction for infringement of imported products.
Trade Secret Litigation in the USITC
By Bryan Schwartz and Nicole Lai – March 30, 2015
Are there benefits for litigating in the U.S. International Trade Commission?
Domestic Industry: Reconciling Bally/Midway with USITC Practice
By James Tonthat – March 30, 2015
The decision to evaluate postcomplaint activities is consistent with Federal Circuit precedent, USITC practice, and public policy.
Mediation at the USITC
By James Tonthat – March 30, 2015
A new program provides an alternative to costly section 337 investigations.
Broadest Reasonable Interpretation at PTAB Approved in First Federal Circuit Decision
By Robert M. Asher – March 12, 2015
Challenges to issued U.S. patents have grown at an alarming rate since 2012.
How Broadly Will the Fox v. Dish Court Interpret ABC v. Aereo?
By Alison Hutton and Alice Snedeker – January 7, 2015
Should the Court's holding be limited to the type of technology at issue or expanded to include Internet streaming of copyrighted programming?
Magic, Pantomime, and Copyright: New Developments
By Mark G. Tratos and Bethany L. Rabe – January 7, 2015
Illusions involving pantomime can be protected and enforced under copyright law.
Craft a Stronger Defense by Distinguishing Parody from Satire
By Nancy A. Del Pizzo – January 7, 2015
Post-Acuff-Rose, artists will have a stronger fair use defense if their work critiques an original work (a parody) rather than merely ridicules it (satire).
Unpaid Royalties on Pre-1972 Recordings: Mony Mony!
By Michele M. Riley and Erich Kirr – January 7, 2015
In the absence of federal copyright protection, owners of pre-1972 recordings may turn to state law to collect unpaid royalties.
Filing a Copyright Complaint When the Application Is Pending
By W. George Wailes – January 7, 2015
The circuit courts are split on whether filing an application provides sufficient basis for a copyright infringement claim.
Marvel-Kirby Dispute Settles on Eve of SCOTUS Conference
By Jessica S. Nam – January 7, 2015
Legendary comic book characters deemed "works for hire."
Summary Judgment on Copyright Damages: New Guidance
By Mark G. Tratos and Bethany L. Rabe – October 16, 2014
WrestleMania XXIV sparked an unexpected match: DJ Anthony Dash vs. famed champion boxer Floyd Mayweather Jr.
Developments in Injunctive Relief in Health Care Patent Cases
By Mark Rachlin – October 16, 2014
Chief Justice Roberts's interim order injects ambiguity into the analysis of "at risk" launches.
Presumption or Proof? Establishing Irreparable Harm in Trademark Cases after eBay
By Mark S. VanderBroek and Lucas A. Westby – October 16, 2014
A lawyer litigating a plaintiff's trademark case cannot count on a presumption being applied.
Patent Trolls: Can You Sue Them for Suing or Threatening to Sue You?
By Bradley P. Nelson – October 16, 2014
Victims of abusive patent assertion tactics may have the option of turning the tables.
Statutory Damages under Lanham Act Section 35(c) Related to the Use of Counterfeit Marks
By Sharmian L. White – October 16, 2014
Subsection 1117(c) offers an alternative to proving actual damages.
Are Attorney Fees Now Easier for Patent Owners to Recover Absent Willful Infringement?
By Mark M. Supko – October 16, 2014
Supreme Court expands authorization for a district court judge to impose a fee award.
Consumer Surveys and Other Market-Based Methodologies in Patent Damages
By Shankar Iyer – October 16, 2014
Changes in demand of analyses of patent damages may force "traditional" damages experts to give way to marketing experts and economists.
Partial Institution by PTAB Violates the AIA—And There Is a Simple Solution
By Tim Wilson and John Sieman – August 4, 2014
The partial institution of a trial on only a subset of the challenged claims violates the AIA and needs to be corrected, before we need to revisit cases that have already been decided.
Harmonizing Standards for District Court and PTAB Claim Construction
By Robert M. Asher – August 4, 2014
With the emergence of new AIA post-grant proceedings, the time is right for the Federal Circuit to bring greater uniformity to claim construction.
Amending Fences: Early Failures Amending Claims in Inter Partes Review
By P. Andrew Riley and Jonathan R.K. Stroud – August 4, 2014
Despite the PTAB's denial of nearly all motions to amend, there are valuable lessons for patentees that can lead to better outcomes in the future.
The Use of Inter Partes Review Petitions in ANDA Litigation
By Matias Ferrario, Jennifer Giordano-Coltart, and Leslie Grab – August 4, 2014
A discussion of general strategies concerning the use of IPRs in the pharmaceutical context and special issues that may arise when there is a concurrent ANDA litigation proceeding.
Is That a Complaint? The Grey Area of 35 U.S.C. Sec. 315(b)
By Herbert D. Hart III, Malaika D. Tyson, and Robert F. Kappers – August 4, 2014
A look at notable decisions that provide guidance on avoiding the statutory bar of 35 U.S.C. Sec. 315(b) to filing inter partes review petitions.
Qualification for Covered Business Method Review
By Paul C. Haughey – August 4, 2014
CBM reviews are proving to be a powerful and increasingly popular method to challenge business method patents. New decisions provide more examples of the boundaries of what is considered nontechnical and financially related.
Pleading Plausible Trade-Secret Claims under Twombly and Iqbal
By Ronald T. Coleman Jr. – May 30, 2014
Plaintiffs must allege enough specific facts supporting their claims for relief in order to meet the enhanced standard.
Delaware's Judge Stark Outlines New Patent Case Management Practices
By Chad S.C. Stover – May 30, 2014
"The times they are a-changin.'"
Protecting Trade Secrets Stored in the Cloud
By Benjamin J. Bradford, Justin A. Maleson, and Michael T. Werner – March 28, 2014
Steps to take to maintain the secrecy of sensitive information.
Inside Trade-Secret Investigations at the U.S. International Trade Commission
By P. Andrew Riley – March 28, 2014
A look at the requirements and advantages of pursuing a misappropriation claim at the ITC.
On the Importance of Early Identification and Getting Specific
By Casey Mangan and Jeffrey A. Wakolbinger – March 28, 2014
A survey of recent cases underscores the need for plaintiffs to pin down the particular information alleged to be trade secrets early on.
Unraveling the Doctrine of Inevitable Disclosure
By Linda K. Stevens – March 28, 2014
When an employee's mobility can imperil trade secrets, this approach may provide an answer.
Key Defenses to an Accusation of Trade-Secret Misappropriation
By Onika K. Williams – March 28, 2014
A crash course for young lawyers.
Understanding the Economic Value of Trade Secrets
By Glenn Perdue – March 28, 2014
The monetization of this type of intellectual property lies in the proprietary competitive advantage it yields.
E Pluribus Unum: The Homogenization of Trade-Secret Law in the European Union
By David J. Gluck – March 28, 2014
The proposed directive seeks to bring the EU's law in line with that of the rest of the world's leading economies.
The Right of Publicity in Video Games Plays Hardball with the First Amendment, Part 2
By Guylyn R. Cummins – March 28, 2014
Analyzing implications of the Keller ruling.
Vermont Enacts Legislation Against Patent Trolls
By Walter E. Judge Jr. and Eric A. Poehlmann – December 23, 2013
The first-of-its-kind bill gives companies the legal ability to fight back against patent owners acting in bad faith.
The Right of Publicity in Video Games Plays Hardball with the First Amendment
By Guylyn R. Cummins – December 23, 2013
Part 1: A play-by-play of the Hart v. Electronic Arts decision.
Patent Litigation: The Role of State-Law Causes of Action
By Paul C. Van Slyke – December 23, 2013
Although traditionally a federal domain, patent litigators must be aware of the role that state law can play in their practice.
The "Silver Lining" of Other Claims in IP Litigation
By Mary Craig Calkins and Daniel H. Rylaarsdam – December 23, 2013
They might trigger insurance coverage!
Preemption Is No Secret
By John A. Stone – December 23, 2013
Exploring the preemptive effect of trade-secret legislation.
Gray Matters: Statutory Remedies for Sales of Unauthorized Parallel Goods Post-Kirtsaeng
By Michael Steger – December 23, 2013
It appears that brand owners may be moving toward Lanham Act claims.
Claim Scope Statements in U.S. Patent Office Litigation Proceedings
By Kenneth R. Adamo – October 31, 2013
As part of the AIA, Congress revised 35 U.S.C. Section 301 to allow such submissions.
When Right of Publicity and the First Amendment Collide
By Mary Ellen Roy – October 31, 2013
Does venue determine outcome?
Local Patent Rules: A Survey of District Courts
By Ben Hodges – October 31, 2013
A closer look at the different approaches followed by 26 districts.
Filing a Renewed Motion to Stay Litigation
By Erwin Cena – October 31, 2013
Issues and strategies to keep in mind when requesting a patent reexamination.
Patent Litigation in Germany
By Volkmar Henke and Rainer Böhm – May 28, 2013
A look at some of the peculiarities of the German court system that prompt patent holders to conduct their litigation there.
Rise of Remedies in Chinese Courts
By Kenneth S. Chang and Jeffrey M. Connor – May 28, 2013
Do recent changes indicate a trend toward better enforcement of patent rights in China?
Foreign Infringement in Imported Products
By Jillian A. Centanni – May 28, 2013
An analysis of the implementation of 35 U.S.C. § 271(g).
"Lawfully Made under This Title"
By Christopher A. Mitchell and Matthew J. Snider – May 28, 2013
The new, global reach of the first-sale doctrine.
Trademark Rights in a Global Economy
By Lisa M. Tittemore – March 8, 2013
Protecting and enforcing well-known and famous marks in the United States and other jurisdictions.
Unpacking the Louis Vuitton v. Warner Brothers Decision
By Andy Bart and Gianni Servodidio – March 8, 2013
The case centers on the cameo of an allegedly counterfeit Vuitton bag in the comedy, The Hangover: Part II.
Prank as Parody?
By James W. Faris – March 8, 2013
Enforcement of trademark rights against "identity correction" imposters.
Calculating Defendants' Profits
By Juli Saitz – March 8, 2013
Exploring different approaches to this inexact science.
Minding Your Manners: From Cease and Desist to Please and Thank You
By Joseph "Casey" Mangan and Geri Haight – January 4, 2013
Trademark owners and their counsel have reason to pause before firing off a hasty C&D letter to an alleged trademark infringer.
Think Twice Before Posting Online
By Jillian A. Centanni – January 4, 2013
Users concerned with maintaining their rights under copyright law should consider the consequences of posting any materials on social-networking sites.
What's the Point with Pinterest?
By Lindsay A. Victor – January 4, 2013
Pin with care to avoid potentially being held liable for copyright infringement.
You Can't Say That on Facebook . . . or Can You?
By Amy E. Davis – January 4, 2013
Approaches to enforce your rights when copyrighted works are posted without permission.
You're a YouTube Star! Now What?
By Mary Ann L. Wymore and John E. Petite – January 4, 2013
Approaches to enforce your rights when copyrighted works are posted without permission.
The Heightened Domestic-Industry Standard for NPEs
By Reza Mirzaie and Irfan A. Lateef – September 12, 2012
Nonpracticing entities must weigh the benefits of International Trade Commission relief against the risks of failing to prove the domestic-industry requirement.
Making Sense of Prometheus
By Marc Goldman and Bradford Lyerla – September 12, 2012
In the Prometheus decision, the Supreme Court explained the arguments for both a broad view and a narrow view of Section 101 of the Patent Act.
Deconstructing Inventorship: A Method to the Madness
By Paul R. Coble and Carrie C. Ruzicka – September 12, 2012
Credit for inventing a novel chemical composition requires two distinct criteria—knowledge of the chemical structure of a compound and the operative method of making it.
Scope of Waiver: Post-Seagate Trends
By Reginald J. Hill and Nangah N. Tabah – September 12, 2012
The standard for determining the scope of a waiver of attorney-client privilege is well-established. The scope of a waiver of work-product immunity, however, is more nuanced.
The Pendulum Swings: Bosch and Permanent Injunctions
By Christopher B. Lay – September 12, 2012
Courts historically have granted patent injunctions in all but extreme circumstances, but granting or denying an injunction should be determined by traditional equitable principles.
Section 101: A Defense to Assert Early (and Often)
By Charles A. Bieneman – September 12, 2012
Upon reading certain patent claims, most seasoned practitioners know potential Section 101 invalidity when they see it. So what is an accused infringer to do?
Use-Based Damage Theory Garners an Unreasonable Royalty
By Konrad Sherinian – September 12, 2012
Use-based theories can not only assess royalties, but they can lead to significantly higher dollar awards than sales-based theories or lost profits.
ICANN Struggles to Manage its Expansion of the Web
By Stephen Flug – July 30, 2012
ICANN still has a lot of work to do to fix technical malfunctions and to correct procedural oversights that look to hamper the implementation of the gTLD program.
The Broad Spectrum of Trade Secret Damages
By Glenn Perdue – April 18, 2012
The wide variety of economic facts and circumstances encountered in trade secret cases leads to the need for flexibility in the calculation of damages.
Patent Damages in the Wake of Uniloc v. Microsoft
By Shankar Iyer – April 18, 2012
Even after this federal case, significant gray areas remain in the calculation of reasonable royalty patent damages.
Showing a Disgorgement of Profits under the Lanham Act
By Oliver Alan Ruiz – April 18, 2012
Some circuits require evidence of willful infringement as a prerequisite to an award of profits, while others have decided that it is only one of many factors to be considered.
Willfulness under the America Invents Act
By Rick Sanchez – April 18, 2012
Section 298 says that the failure of an infringer to obtain the advice of counsel may not be used to prove that the accused willfully infringed a patent.
Willfulness and the Current State of Trademark Damages Law
By Jonathan A. Menkes – April 18, 2012
It is time for appellate courts to weigh in and determine whether willfulness is a requirement for the recovery of a defendant's profits.
Is Actual Confusion Required to Recover Actual Damages?
By Charlene R. Marino – April 18, 2012
A claim for actual damages can be based on all elements of injury to the business of the trademark owner, such as injury to business reputation or the mark's goodwill.
The Increased Scrutiny of Reasonable Royalty Damages Awards
By Steven R. Hansen – April 18, 2012
Because the patent holder bears the burden of proof, scrutiny may collide with the statutory mandate that patent holders receive no less than a reasonable royalty.
Inter Partes Review: The New Markman Hearing?
By Robert M. Asher – February 20, 2012
Inter partes review could be a big hit and may even replace Markman hearings as the defining moment in many patent litigations.
Joinder Limitations in the America Invents Act: Big Change?
By Chandran B. Iyer and Ryan M. Corbett – February 20, 2012
While section 299 does not change the standard for joining multiple defendants in one suit, its impact will be felt, given its prominent placement in the patent laws.
How the America Invents Act Revived the Prior-User Defense
By Jeff Mikrut – February 20, 2012
The new prior-user defense provides innovators with a clear and functional defense that will hopefully spur more innovation rather than less.
Words Method vs. Invention Method of Claim Construction
By Brad Lyerla – February 20, 2012
There are two, likely irreconcilable, methods for doing claim construction, but the case law does a poor job of recognizing them.
New Avenues for Hatch-Waxman and Biosimilar Litigation?
By Richard Pettus and David Joyal – February 20, 2012
Post-grant review proceedings have the potential to drive the earlier resolution of branded-generic company conflicts through expedited validity determinations or settlements.
Effects of the America Invents Act on Inventorship Disputes
By Janelle D. Waack – February 20, 2012
Patent-owner disputes will be addressed by civil action in a district court, whereas patent applicant disputes will be addressed by derivation proceedings before the PTAB.
An Update on Delaware Standards for Discovery Issues
By Chad S.C. Stover – December 19, 2011
Several important developments in the District of Delaware fundamentally change the procedures that litigants should expect.
First-Sale Doctrine Only Applies to Goods Made in America
By Andrew Berger – October 24, 2011
In its most recent ruling, the Second Circuit has done little to clear the cloud of uncertainty over gray-market goods.
Obtaining Preliminary Injunctions in Open-Source Cases
By S. Christian Platt, Bob B. Chen, and Kenneth Newton – September 20, 2011
Where the presumption of irreparable harm no longer applies, showing such harm and obtaining a preliminary injunction will be difficult for open-source plaintiffs.
The Impact of Recent Case Law on Copyleft Agreements
By R. Scott Rhoades and Jon Rastegar – September 20, 2011
The decisions in Wallace and Jacobsen suggest that copyleft agreements may ensure that copies and modifications to open-source software will remain open source.
Vendor Indemnification on the Open Range
By David Swetnam-Burland and Stacy O. Stitham – September 20, 2011
With up-front consideration of the potential negatives, a business can make a licensing decision regarding the merits of open-source software with open eyes.
Leveraging Open-Source Software in Patent Litigation
By Andrew Strickland and Amy Chun – September 20, 2011
By failing to consider their opponents' use of open-source licenses, accused infringers may miss opportunities to discover facts that could lead to new litigation strategies.
Open-Source Software in the Cloud
By Bradley J. Walz – September 20, 2011
The end user needs to investigate whether the platform it is licensing contains open-source software and which open-source software licenses govern the platform.
Complying with Source-Disclosure Obligations
By Edward J. Naughton – September 20, 2011
There are more than 50 open-source licenses, and many permit licensees to use or modify code without requiring the distribution of source code for the resulting work.
The Economic Incentives of Open-Source Software
By Jennifer Vanderhart – September 20, 2011
Certain terms in open-source licenses are important to maintaining those incentives and have been upheld as valid by the courts.