The Market Power Presumption Revisited: Court to Consider Whether Patents Confer Market Power in Tying Cases
February 02, 2006
Antitrust law has long prohibited producers with market power from engaging in tying arrangements, agreements in which the sale of a highly desired "tying" product is conditioned on the purchase of a second item. The Supreme Court has held that sellers must exert power over the marketplace to be guilty of illegal tying under the Sherman Act. Does the existence of a patent on a product create a presumption of market power? On June 20, the Supreme Court granted certiorari in <i>Illinois Tool Works Inc. v. Independent Ink, Inc.</i>, 2005 WL 770269, *1 (U.S.) (2005) to consider this question.
IP News
February 02, 2006
Highlights of the latest intellectual property news from around the country.
Damage Dilemma: Conflicting Standards for Disgorging Trademark Infringer's Profits
February 02, 2006
Is willfulness a prerequisite for recovering a defendant's profits under 35 U.S.C. §1117(a) for infringing a registered mark or for violations under Section 43(a) of the Lanham Act? Maybe. It depends on the circuit in which the case is decided, but it shouldn't. The substantive rights and remedies under the Lanham Act should be uniformly interpreted throughout the nation. This is especially so with respect to monetary remedies in view of the Trademark Amendments Act of 1999, which should have, but did not, resolve this issue.
Infringement By Source Code 'Golden Master': Developments in Patent Infringement Law Concerning Extra-U.S. Sales
January 04, 2006
Until recently, U.S. software companies comfortably operated under the assumption that selling software that was copied from a "golden master" CD outside of the United States, and which was sold only to customers outside of the United States, did not infringe U.S. patents. Recent developments in the law have destroyed that comfort and made clear that infringement liability may very well lie for exactly those types of foreign sales.
IP News
January 04, 2006
Highlights of the latest intellectual property news from around the country.
Nonphysical Differences Are Enough to Create Material Differences with Gray Market Goods
January 04, 2006
Under U.S. law, the resale of imported genuine goods bearing a valid U.S. trademark generally does not constitute trademark infringement. This is in part because, under the first sale doctrine, the trademark protections under U.S. law can be exhausted after the trademark owner's first authorized sale anywhere of the product bearing the trademark. Thus, U.S. law does not generally preclude the sale of identical genuine goods bearing a legitimate trademark even if the sale in the United States is unauthorized by the trademark owner.
If You're Confused, You Should Be: Two Federal Laws Apply to Cell Phone Messages
January 04, 2006
When it comes to sending promotional messages to wireless devices, such as through e-mail or short message service ("SMS"), there is more than one reason to be confused. First, there are two different federal laws that apply to messages that end up on wireless devices such as cell phones. The Controlling the Assault of Non-Solicited Pornography and Market Act (the "CAN-SPAM Act"), 15 U.S.C. §7701 <i>et seq.</i> and 18 U.S.C. §1037, applies if the address that is used to send the message consists of a username and a domain name. (Commonly, if the wireless device is a cell phone, the username would be the number of the cell phone and the domain name would be the domain name of the wireless carrier. If the wireless device is of some other type, the address may be formulated differently.) The applicable rule is: If the address has a domain name in it, the CAN-SPAM Act's wireless e-mail regulations apply.
