Frank L. Bernstein
The Court of Appeals for the Federal Circuit finally has opined on the scope of waiver of privilege in patent infringement litigation when an accused infringer relies on an attorney opinion to defend against a charge of willful infringement. <i>In re EchoStar Commc'ns Corp.</i>, 2006 U.S. App. LEXIS 11162 (Fed. Cir., May 1, 2006).
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Compiled by Eric Agovino
Highlights of the latest intellectual property news from around the country.
Matthew W. Siegal
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Bruce H. Schneider
The Supreme Court has recently abolished the presumption that a patent confers 'market power' on the patent owner, ending the presumption of antitrust liability arising from the conditioning of a patent license to the purchase of unpatented articles. <i>See Illinois Tool Works v. Indep. Ink, Inc.</i>, 126 S. Ct. 1281 (2006). As discussed below, this decision will have wide-ranging implications to the field of patent licensing, where fear of antitrust liability has tended to dampen the creativity of patent license schemes.
Features
Jonathan Moskin
The right of publicity ' the right of individuals to protect the commercial uses of their names and images ' is now a familiar concept. Given the recently reported $50 million purchase of rights to Muhammad Ali's name or the $100 million acquisition of Elvis Presley's publicity rights (hardly for a song), there can be no question that the right not only can have great value, but has achieved a certain settled status. And yet, the metes and bounds of the right remain elusive at best.
Features
Howard J. Shire
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Amy Feinsilver Bersh
In a recent decision involving a trademark settlement agreement, the U.S. Court of Appeals for the Fifth Circuit in <i>Liberto v. D.F. Stauffer Biscuit Co., Inc.</i>, found that a final judgment in a trademark infringement action did not preclude a further action involving claims of trademark infringement, breach of contract, and the defense of incontestability. 441 F.3d 318 (5th Cir. 2006). The case highlights the significance of including certain important terms in a settlement agreement involving a trademark license.
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Features
Eric Agovino
Recent rulings of importance to you and your practice.
Shane Cortesi
On Feb. 21, 2006, the Supreme Court granted certiorari to review <i>MedImmune, Inc. v. Genentech</i>, 427 F.3d 958 (Fed. Cir. 2005). The question presented is: 'Does Article III's grant of jurisdiction of 'all Cases ... arising under ... the Laws of the United States,' implemented in the 'actual controversy' requirement of the Declaratory Judgment Act, 28 U.S.C. '2201(a), require a patent licensee to refuse to pay royalties and commit material breach of the license agreement before suing to declare the patent invalid, unenforceable, or not infringed?' Whether the Court affirms or reverses the Federal Circuit, which answered in the affirmative, undoubtedly will affect the balance of power between patentees and their licensees and, perhaps, the willingness of licensors to grant licenses.
