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Post-Trial Re-examination
A patent always faces the threat that it could be invalidated on re-examination. Yet, for a patentee who has already sued for infringement, won a jury verdict, and obtained a judgment for damages, does a subsequent re-examination pose an equal threat to that award? What if the patent is not necessarily invalidated, but claims on which infringement was found at trial are narrowed, no longer justifying the jury's findings? Even if past damages cannot be set aside, can a re-examined patent extinguish an infringer's obligation to pay future royalties? In sum, to what extent does re-examination equip an infringer who loses in court with the additional opportunity, aside from an appeal, to escape liability.
Re-examination provides an avenue of defense to those facing liability. Both ex parte and inter partes re-examination permit a third party, who is neither the patentee nor the assignee, to petition for a patent's re-examination provided a substantial new question of patentability exists. 35 U.S.C. ” 302, 311. Congress intended the re-examination statute to empower private actors to correct patents that were erroneously issued by the PTO. H.R. Rep. No. 107-120 (2002); see also In re Swanson, 540 F.3d 1368, 1375 (Fed. Cir. 2008). Accordingly, claims cannot be enlarged through re-examination, but only invalidated or narrowed in scope. 35 U.S.C. ' 305. Persons who are therefore likely to seek re-examination include potential and existing licensees, infringers, or litigants. M.P.E.P. ' 2612.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.