The Value of 'Research Tool' Patents in View of <i>Integra v. Merck</i>
August 01, 2003
On June 6, 2003, the Court of Appeals for the Federal Circuit seemingly breathed new life into research tool patents when it held that the use of patented peptides for drug discovery was not exempt from infringement under the "safe harbor" provision of 35 U.S.C. '271(e)(1). <i>Integra Lifesciences, Ltd. v. Merck KGaA,</i> 331 F.3d 860 (Fed. Cir. 2003). In an earlier case, <i>Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc.,</i> No. 95 Civ. 8833, 2001 WL 1512597 (S.D.N.Y 2001), a district court had ruled that the use of patented intermediates for drug screening was non-infringing, thereby implicating that the use of other research tool patents for drug discovery was likewise sheltered from infringement liability under '271(e)(1).
Bankruptcy: What Happens to the Royalty Payments?
August 01, 2003
In a decision interpreting for the first time certain provisions in the Bankruptcy Code, the Third Circuit Court of Appeals concluded that royalty payments belonged to the estate of the bankrupt debtor/licensor rather than to the new owner by assignment of the underlying intellectual property covered by the licenses. <i>In re CellNet Data Systems, Inc.,</i> 327 F.3d 242 (3d Cir. 2003). The Third Circuit held that the debtor/licensor was permitted to sever the right to receive the remaining royalty payments due on the license from the transfer of the underlying intellectual property rights.
IP News
August 01, 2003
Highlights of the latest intellectual property news and cases from around the country.
Debtor Has Right to File Bankruptcy to Limit Landlord's Claims
August 01, 2003
One of the fundamental policies of the Bankruptcy Code is to provide an equal distribution to all creditors of a debtor's estate. There are a variety of tools under the Bankruptcy Code to accomplish these goals. One such power is the statutory limitation of a landlord's rejection damage claim under section 502(b)(6).
'Personal' Alter Ego Claims in Bankruptcy
August 01, 2003
<b><i>Part One of a Two-Part Article</i></b> With corporate fraud and bankruptcy filings on the rise, creditors are increasingly looking to related entities, corporate shareholders, directors and officers to pay their claims when the corporation goes belly-up. Unfortunately, bankruptcy courts have made it virtually impossible for creditors to maintain individual alter ego claims against the debtor's shareholders and affiliates. As a result, crafting an alter ego claim that will survive an attack by the bankruptcy trustee (or the bankruptcy court itself) requires finesse.
A New Dimension to Asbestos-Related Bankruptcies?
August 01, 2003
A recent jury verdict in California threatens to break wide open the uneasy issue of aggregated insurance payments in asbestos litigation. <i>Fuller-Austin Insulation Co. v. Fireman's Fund Ins. Co., et al.</i>, No. BC 116835 (Calif. Super. Los Angeles Co.). Its ramifications, however, reach far beyond insurance coverage litigation into every asbestos-related or mass tort bankruptcy.
Practice Tip: Consider Filing a Renewed Motion for Summary Judgment
August 01, 2003
When your motions for summary judgment in product liability cases are denied, your usual reaction is probably to move on and to begin focusing your case on how to win at trial. While that is usually the best approach, that doesn't mean you necessarily have to give up on the hope of winning the case on summary judgment before trial. Orders denying summary judgment are interlocutory, and so a court has the inherent power to reconsider them and change them at any time before entry of final judgment. <i>See, e.g., Freeman v. Kohl & Vick Mach. Works, Inc.</i> 673 F. 2d 196 (7th Cir. 1982). Nothing in the rules bars a party from filing a renewed motion for summary judgment and, as described below, there are times when such a motion is called for.
When It's OK to Demolish the Evidence: Tactics for Destructive Examination and Testing
August 01, 2003
Destructive testing or examination of evidence in product liability cases may be a high-risk proposition. Proposing a destructive test or examination often discloses the thought processes of counsel or expert witnesses. In most cases, there probably will be only one opportunity to perform a destructive test or examination, so it must be done right the first time. The party proposing the destructive test or examination will be bound by the result, good or bad.
