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How Much Damage?
The recent decision by the U.S. Court of Appeals for the Federal Circuit in EZ Dock Inc. v. Schafer Systems Inc., 276 F.3d 1347 (Fed. Cir. 2002) may well have an impact on the development of biotechnological and pharmaceutical inventions. In EZ Dock, the Federal Circuit adopted a 13-factor 'totality of the circumstances' test to determine whether an offer to sell an invention is primarily commercial or primarily experimental, and thus whether the on-sale bar under 35 U.S.C. 102(b) should apply.
The on-sale bar prevents a patentee from obtaining and enforcing a patent if the invention was the subject of a commercial sale or offer for sale in the United States more than 1 year before the inventor or company filed a patent application on the invention. The rationale behind the bar is four-fold. First, the bar discourages the removal of inventions from the public domain after the public has come to believe the invention is freely available as a result of the sale of products embodying it. Second, the bar favors widespread disclosure of inventions. Third, the bar provides the inventor a reasonable amount of time after sales have started to decide whether the invention is worth patenting. Finally, the bar prevents the inventor from unduly extending the period of his monopoly by delaying the filing of a patent application until he fears that he might start to experience competition. King Instrument Corp. v. Otari Corp., 767 F.2d 853 (Fed. Cir. 1985).
The test for whether the on-sale bar applies was enunciated by the U.S. Supreme Court in Pfaff v. Wells Electronics Inc., 525 U.S. 55 (1998). This two-prong test focuses on whether there was a commercial offer for sale (or a sale) of the invention and, if so, whether the invention at that time was ready to be patented. The intent of the inventor to sell or not to sell (or to experiment or not to experiment) is not relevant to the determination; the test instead relies on objective factors and events that are evaluated against the patented invention on a claim-by-claim basis. See e.g., EZ Dock, 276 F.3d at 1357.
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?