Patent Infringement Damages: Riding The Wine Railway Can Be Expensive
May 01, 2003
When the plaintiff in a patent litigation contends that it has never made or sold the product protected by its patent, alarm bells should start clanging in the ears of defense counsel. For the odds are that the plaintiff is angling to take advantage of a little-used aspect of the law of patent damages that can lead to a windfall recovery for patent infringement. It is the <i>Wine Railway</i> exception to the well-known "notice" provision of the patent statute. Created by the Supreme Court in <i>Wine Railway Appliance Co. v. Enterprise Railway Equipment Co.</i>, 297 U.S. 387 (1936), the exception can lead to catastrophic and unforeseen patent damage awards. Such damages are unforeseen (and, some would argue, unfair and undeserved) because they arise without any notice of infringement, actual or constructive.
Service With A Smile: Cutting Client Services Means Cutting Profits
May 01, 2003
Faced with the most difficult economic conditions in years, many law firms are looking for ways to maintain a competitive edge ' without negatively impacting cost structures. Investing in client service is a strategy that reaps both long- and short-term benefits.
The Attorney, Unemployed
May 01, 2003
Ask Lee Feldshon, a 33-year-old entertainment lawyer who lives in New York. He graduated from Columbia University Law School in 1994, worked at New York's White & Case and several other well-established law firms in the 1990s, then landed a job as director of legal affairs for Madison Square Garden in 2001. He got laid off in 2002.
Understanding The Rights and Obligations Of Your Military Reservist Employees Part 1 of 2
May 01, 2003
With the recent conflict in Iraq and the country's ongoing focus on homeland security, many employers find themselves confronting for the first time a significant body of employment rights and obligations imposed by the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA). As of April 1, 2003, the Department of Labor estimated that 220,000 reservists and National Guard members were on active duty, and that roughly 280,000 reservists and Guard members had been called up since September 11, 2001, surpassing the total number called to active duty for the first Persian Gulf War.
Is Your Firm Using Pirated Software?
May 01, 2003
Recently, in selected metropolitan areas, law firms and their clients, began receiving letters from the Business Software Alliance (BSA), an industry watchdog group that cracks down on the illegal use of the world's software. The letter warned its recipients of the risks and implications of pirating software. It may have been dismissed as a veiled threat by some, while others were left scratching their heads, asking, "Can anything really happen to us from pirating software?"
U.S. Likely to Adopt Post-Grant Oppositions
May 01, 2003
Adoption of post-grant oppositions appeared to be a shoe in at the combined meeting of the Interference Committees of the ABA, AIPLA and IPO held on April 14, 2003. Elimination of the 35 USC 135(b)(2) "clock" for interferences also appeared likely.
Standing to Assert a U.S. Patent: Do Infringement Actions Belong Solely to the 'Patentee'?
May 01, 2003
Who can sue on a U.S. patent? The answer is not always as clear-cut as one may think. A patent plaintiff or other party seeking to enforce rights in a U.S. patent portfolio will thus wish to ensure before commencing any such action that he enjoys sufficient legal standing with respect to the patents in his portfolio. Otherwise, a challenge to the plaintiff's legal standing may lead to unexpected chagrin for the would-be asserter of the patent and unlooked-for advantage on the part of the alleged infringer against whom the patent was to be asserted.
Foreseeability as a Bar to Proof of Patent Infringement
May 01, 2003
The doctrine of equivalents is a rule of equity adopted more than 150 years ago by the U.S. Supreme Court. Prosecution history estoppel is a rule of equity that controls access to the doctrine. In May 2002, the Court was called upon to revisit the doctrine and the estoppel rule in <i>Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd.</i> Ultimately the Court reaffirmed the doctrine and expanded the estoppel rule, but not without inciting heated debate over the Court's rationale — especially since it included a new and controversial foreseeability test in its analysis for estoppel.
