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Applying Patent Teachings in Product Liability Cases
In a product liability design defect action, evidence establishing the defectiveness of a product is paramount to a plaintiff's case. Some jurisdictions require the plaintiff to bear the burden of offering evidence of a safer design (often defined as a “reasonable alternative design” or “feasible alternative design”). Similarly, plaintiffs may be required to produce evidence that a manufacturer of an allegedly defective product was on notice of the product's defect and failed to remedy the product. Often, the potential evidence, for either side, that is available through the teachings of patents is overlooked. Conducting a patent search and an investigation of the state of the patent art may yield fruitful evidence regarding the defect or relative safety of the product at issue in a product liability action. But first some background to set the environment for how patents become patents.
Background
The primary advantage of a patent is to secure to the inventor the right “to exclude others from making, using, offering for sale or selling the invention throughout the United States.” However, the patent applicant must give something to the public in return for this period of exclusivity. The patent applicant is required to disclose sufficient information in the application to support the subject invention and to justify the patent's claims. The drawings and specification of a patent application must include: 1) a specification as set forth in 35 U.S.C. ' 112; 2) a drawing as expressed in 35 U.S.C. ' 113; and 3) an oath by the applicant as expressed in 35 U.S.C. ' 115. While all of these things are required, it must be remembered throughout the remainder of this article, and any use of patents, that the U.S. patent examiner does not pass on the commercial merit or the practicality of producing the invention. The examiner is concerned with the applicant's meeting the statutory requirements for a patent rather than the likelihood of the invention's being a market success. Accordingly, the patent search needs to be conducted by someone with an understanding of the technology and the specific problem or defect at issue.
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Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
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Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.