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FTC Proposal Could Dramatically Affect the Patent Landscape
After conducting a study on how the U.S. patent system affects competition and innovation, the Federal Trade Commission (FTC) has suggested several legislative and judicial reforms to current U.S. patent law that might change the way we litigate patents. If implemented, these reforms could make it easier to challenge the validity of patents and could provide accused infringers with additional defenses to charges of infringement and willful infringement.
The FTC's proposal, contained in an October 2003 report titled “To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy,” seeks to lower the standard of proof for patent validity challenges. For at least the past 70 years, courts have required patent invalidity to be proven by the heightened standard of clear and convincing evidence. The FTC's proposal would lower the bar to a preponderance of the evidence standard. If adopted, such a change in the law would make it easier for patent holders to prove infringement at trial, and to have those infringement findings upheld on appeal.
The FTC also proposes relaxing the standards for proving obviousness. Obviousness is typically proven, for example, by showing that the subcomponents of the patented invention were present in the prior art, and that there existed a motivation to combine them to arrive at the invention. If a patent challenger cannot find a subcomponent in the prior art, or if the prior art does not contain an express motivation to combine the subcomponents, proving obviousness can be a much more daunting task. The FTC's proposal would eliminate that difficulty by permitting courts to consider both “inherent knowledge” and the problem-solving ability of one of ordinary skill in the art.
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.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?