Demonstrative Evidence and Courtroom Technology: 'How Technical Should I Get, And When?'
August 26, 2003
Readers of this publication know that technological advances continue to revolutionize the practice of law and, in particular, the presentation of cases at trial. Not a day goes by without another article, essay, CLE seminar, jury poll, or billboard extolling the benefits of using technology to develop effective demonstrative evidence, and help present your case at trial. But for the lawyer facing a looming trial date, there is a threshold question that the pundits often overlook: 'How technical should I get, and when?'
IP NEWS
August 26, 2003
Highlights of the latest intellectual property news and cases from around the country.
Fraud in Procurement of Registration Concerning Use of Mark Taints Entire Trademark Application for Stents
August 26, 2003
In <i>Medinol Ltd. v. Neuro Vasx, Inc.</i> (Cancellation No. 92040535), the Trademark Trial and Appeal Board (TTAB) agreed to enter summary judgment in favor of Medinol canceling Neuro Vasx's trademark registration for NEUROVASX based on fraud on the PTO. In August 2000, Neuro Vasx, was granted a registration for the mark NEUROVASX for 'medical devices, namely neurological stents and catheters.' As a result of this registration, Medinol's application for registration of the mark NIROVASCULAR for 'medical devices, namely stents' was refused.
The Paxil Case: Composition of Matter Claims, Polymorphs and 'Follow-on' Patents
August 26, 2003
The growth of the pharmaceutical industry over the past 20 years has been driven by the R&D investment in discovering new compounds, which can be protected by composition of matter patent claims. There are notable exceptions to this rule, <i>eg,</i> an unexpected and lucrative use for an old compound, like topically-applied minoxidil for hair growth (Rogaine'). But composition of matter patent protection on the active product itself is always a primary plank in protecting a drug franchise, and increases the value of the technology significantly.
Contributory Copyright Infringement and Peer-to-Peer Networks
August 26, 2003
The second labor of Hercules was to kill the monstrous nine-headed Hydra. When Hercules struck off one of the Hydra's heads, two new ones grew forth in its place. The entertainment industry's fight against its modern menace, peer-to-peer file sharing networks, presents no lesser task. The record companies successfully shut down Napster (<i>see A&M Records, Inc. v. Napster, Inc.</i>, 114 F. Supp. 2d 896 (N.D. Cal. 2000), <i>aff'd in part, rev'd in part</i>, 239 F.3d 1004 (9th Cir. 2001)) and Aimster (<i>see In re Aimster Copyright Litig.,</i> 2002 U.S. Dist. LEXIS 17054 (N.D. Ill. 2002)) only to witness the instant emergence of Gnutella, Grokster, Kazaa, Morpheus, and similar services (as well as the re-emergence of Aimster, now known as Madster). We know, of course, that Hercules completed his second labor after figuring out that he could prevent growth of the new heads by burning the wound. However, unlike the Hydra, peer-to-peer file sharing technologies evolve quickly and swiftly adapt to changed circumstances. Thus, Hollywood's plaintiffs are likened more to Sisyphus (who was condemned to an eternity of pushing the rock up the mountain only to have it fall down again) than to Hercules. The most recent example is the decision in <i>Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.</i>, 2003 U.S. Dist. LEXIS 6994 (C.D. Cal. April 25, 2003).
Application of the Reverse Doctrine of Equivalents to Amgen v. Hoechst Marion, Inc.
August 26, 2003
In the previous issue, we discussed the principle of the Reverse Doctrine of Equivalents and provided several illustrations of cases that have addressed the same. In this issue, we apply the principle to the <i>Amgen, Inc. v. Hoechst Marion, Inc.</i> case, wherein the defendants Hoecht Marion and Transkarayotic Therapies (collectively 'TKT') were found liable for infringing several of Amgen's patents. <i>Amgen, Inc. v. Hoechst Marion, Inc.</i>, 126 F. Supp. 2d 69 (D. Mass. 2001). Although the Reverse Doctrine of Equivalents defense was not raised, this article discusses how this doctrine might have relieved TKT of liability.
Net News
August 26, 2003
Recent developments in Internet law and in the Internet industry.
Proof of Infringement Not Required To Obtain Injunction Under DMCA
August 26, 2003
The United States District Court for the District of Hawaii recently ruled in favor of Defendant Motion Picture Association of America (MPAA) and against InternetMovies.com in a case that underscores the broad powers afforded to copyright holders under the Digital Millennium Copyright Act (DMCA).
PA Law Covers Just the Fax, Not the E-Mail
August 26, 2003
Federal law that prohibits sending unsolicited advertisements to fax machines does not affect unsolicited commercial e-mail, the Pennsylvania Superior Court has ruled.
FTC Struggles To Gain Ground In War On Spam
August 26, 2003
Get rich suing spammers or your money back! If offers like that get your goat, you are not alone. Angry consumers forward about 130,000 spam messages to the Federal Trade Commission every day, Chairman Timothy Muris said at the FTC's first Spam Forum. As recently as 2001, the average was just 10,000 per day, he said. The FTC has stepped up its enforcement efforts in the past year. For instance, it announced the fourth in a series of joint federal-state sweeps directed at Internet fraud, including deceptive spam. But there is widespread agreement among experts that existing legal tools are insufficient for the task.
