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Litigating Reduction to Practice: Traps for the Unwary
Part One of a Two-Part Series
The difference between winning and losing a billion dollars in a patent case can be as seemingly insignificant as a date. But when that date is a disputed priority date for the asserted patent, it is not only potentially outcome-determinative, but also quite difficult to establish. A priority dispute often arises in patent litigation when the accused infringer asserts a prior art reference that predates the filing of the application for the patent-in-suit, but postdates the time at which work on the patented invention began. Faced with this art, the patentee has two options: fight the prior art on the patent's merits, potentially limiting the scope of the claims and impairing its infringement arguments, or 'swear behind' the reference by establishing a pre-filing priority date before the asserted reference, and thus eliminate the reference as prior art. In most cases, swearing behind the reference is the better option because it does not typically affect the substance of the claims. By swearing behind the reference, the patentee does not have to draw distinctions between the reference and the claims that can be used against it later in claim construction or in the context of a noninfringement argument. But establishing an earlier priority date can be tricky because it generally requires evidence, including corroborating documents, showing that the invention was reduced to practice before the inventor filed the patent application.
There are two circumstances in which a patentee can establish a pre-filing priority date. First, when the patentee can show that he or she was both the first to conceive of the invention and the first to reduce it to practice. 35 U.S.C. '102(g). Or second, when the patentee can show that he or she was the first to conceive and, from a time prior to the existence of the reference, was diligent in reducing the invention to practice.
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?