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Federal Circuit Negative on Best-mode Defense
The U.S. Court of Appeals for the Federal Circuit has taken an increasingly dim view of an accused infringer's attempt to invalidate the claims of a patent-in-suit by alleging that the patentee failed to satisfy the best-mode requirement.
Recent Federal Circuit decisions, such as Eli Lilly & Co. v. Barr Labs. Inc., 251 F.3d 955 (Fed. Cir. 2001), and Bayer A.G. v. Schein Pharms. Inc., 301 F.3d 1306 (Fed. Cir. 2002), have, with near uniformity, converted the best-mode analysis into a narrow, quasi-legal inquiry that focuses on the scope of the claimed invention, with careful attention to just what is claimed. The specification of all patents, including those claiming pharmaceutical inventions, must 'set forth the best mode contemplated by the inventor of carrying out his invention.' 35 U.S.C. 112, 1. As the Eli Lilly court stated, this best-mode requirement embodies a quid pro quo whereby a 'patentee must not receive the right to exclude others unless at the time of filing he has provided an adequate disclosure of the best mode.' The penalty for failure to satisfy this requirement is harsh: The patent claims covering the subject matter for which the best mode was not disclosed are rendered invalid. See Amgen Inc. v. Chugai Pharm. Co., 927 F.2d 1200, 1209 n.5 (Fed. Cir. 1991).
The claim-focused reasoning of Bayer, Eli Lilly and other recent cases suggests that the best-mode defense is, in many cases, of limited utility in countering allegations of patent infringement, particularly in the context of pharmaceutical patents.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?