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Features
The recent decision, <i>Fuji Kogyo Co. v. Pacific Bay Int'l, Inc.</i>, 461 F.3d 675 (6th Cir. 2006), confronts the question deliberately left unresolved in <i>TrafFix Devices, Inc. v. Marketing Displays, Inc.</i>, 532 U.S. 23 (2001), of whether a product design claimed in a prior utility patent can ever be protectable trade dress under the Lanham Act. Although setting a high bar to protectability, indeed a 'presumption' and 'heavy burden' that material claimed in a utility patent is functional and hence unprotectable once the patent term ends, the Supreme Court, of course, expressly elected not to foreclose such protection entirely. Thus, it refused the invitation of defendant TrafFix, and 'some of its amici,' to rule that 'the Patent Clause of the Constitution, Art. I '8, cl. 8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection.' 532 U.S. at 35. Without itself addressing the constitutional question of how narrowly 'limited times' means 'limited times,' <i>Fuji Kogyo</i> does nothing to ease the burden in establishing trade dress protection for once-patented subject matter; it offers as well a new (if, perhaps, less than fully developed) analytical approach for applying the <i>TrafFix</i> presumption, asking whether the claimed trade dress would have infringed the expired patents.
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Whether calculating lost profits or performing a 'reasonable royalty' analysis under the <i>Georgia-Pacific</i> factors, a damages expert in a patent case is required to consider a large variety of data ' not just data from the plaintiff or the defendant, but also data from third-party sources, such as trade industry publications or market analyst reports. The admissibility of an opinion based on third-party information, however, has been a source of conflict since 1993, when the U.S. Supreme Court decided <i>Daubert v. Merrell Dow Pharms., Inc.</i>
Features
Highlights of the latest franchising cases from around the country.
Features
Part One of this series discussed the two types of reduction to practice: constructive and actual. This installment continues the discussion of satisfying the second prong of the actual reduction to practice test.
Features
When entering into a patent license, the most time is often spent on two issues: 1) how much money, and 2) what am I getting or granting for the money. Several recent appellate court decisions remind us that attention also needs to be paid to other provisions, as they can drastically affect one's rights. This article discusses three such decisions that address declaratory judgment actions, arbitration, and termination, that collectively remind us that the devil is in the details.
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Highlights of the latest insurance cases from around the country.
Features
When an insurance policy is written for a single year, little controversy exists regarding the limits of liability. Multi-year policies, those written for more than one annual period, and stub policies, those in effect for less than a year, are, however, becoming a source of disagreement. Particularly with long-tail claims such as asbestos, chemical exposures, and welding rod litigation triggering historic policies from the 1960s and 1970s, litigation on these issues is becoming ever more important. There is no established general rule regarding the available limits for these types of policies. Rather, courts apply a case-specific analysis of the evidence and policy language to determine the parties' intent regarding the policy's limits. Based on the policy language, or lack thereof, courts have, with limited exceptions, found full aggregate limits during each annual period for multi-year policies and an additional set of limits for stub policies. Such findings are supported by policy language, general legal principles, the economics of the parties' transactions, and industry practice.
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A recent study commissioned by the Equipment Leasing and Financing Association of America ('ELFA') and produced by The Alta Group examines how U.S. businesses and other organizations acquire critical information technology ('IT') equipment and what factors influence the decision-making processes.
Features
Highlights of the latest equipment leasing news from around the country.
Features
In the past, I have written a number of articles directed at U.S. leasing professionals on what they should know about doing business in Canada. These past articles have focused on the leasing business in general as opposed to any particular sector. They discussed broad issues, such as withholding tax and regulatory concerns, but did not examine the specifics of any particular class of collateral or industry sector. During the past several months, I have received a number of inquiries from U.S. lessors in regard to the financing of motor vehicles in Canada. It became readily apparent that not only are there significant differences in law and practice affecting Canadian and U.S. lessors, there also exists a general misunderstanding of the laws of Canada. While generally, Canadian and U.S. law and practice are similar, one area in which they are divergent is motor vehicles. This article, while far from being a complete guide, provides certain guidance as to the most significant concerns.