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Damages under the Entire Market Value and Convoyed Sales Rules
In patent infringement cases, defining the scope of the real injury to the patentee poses a challenge when the patent only covers a portion of a product or system. Courts have developed the entire market value and convoyed sales rules in an attempt to address the true economic loss to the patentee caused when the patented invention is part of a more complex product or of a larger system of goods sold together. These doctrines have been criticized for a number of years and are the targets of legislative activity. See, e.g., Patent Reform Act of 2005, H.R. 2975, 109th Cong. '6(1)(B) (2005). In the Patent Reform Act of 2005, Congress' proposed amendment to the damages section of the patent laws would have allowed patentees to recover for only 'the portion of the realizable profit that should be credited to the inventive contribution.' Although Congress did not pass the Patent Reform Act of 2005, similar legislation could eliminate confusion and some arguable overreaching found in the numerous court rulings that have attempted to address this damages problem. Until that occurs, a thorough understanding of the entire market value rule and its companion concept, convoyed sales, will allow patentees to increase their damages recovery and prepare alleged infringers to limit their liability.
Entire Market Value Rule
The Federal Circuit Court of Appeals has applied two different tests to determine whether the entire market value rule applies: the functional relationship test and the customer relationship test. First, under the functional relationship test, the entire market value rule is satisfied if the patentee can show that the components constitute a functional unit even if the components are physically separate. Rite-Hite Corp. v. Kelley, 56 F.3d 1538, 1550 (Fed. Cir. 1995). Second, under the customer relationship test, patentees may recover the value of the patentees' entire apparatus when it includes a patented component that is the basis for customer demand. Id. at 1549.
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?