Despite the Supreme Court’s recent Commil USA, LLC v. Cisco Systems, Inc. decision, invalidity opinions of counsel remain an important tool for mitigating patent infringement risk. Under Commil, invalidity opinions cannot be used to show that an accused infringer lacked the requisite intent to induce—i.e., the scienter element—under 35 USC § 271(b). But companies will continue to use the opinions to memorialize early-stage validity analyses as part of a broader strategy of assessing potential patent infringement risk.
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As a transactional lawyer, what are the key things that you should focus on in due diligence to determine whether the trade secret your client is considering acquiring is treasure or trash? Anyone can read the various state trade-secret statutes. This article’s purpose is to go beyond the skeletal description contained in the statutes and flesh out the statutory definition with a litigator’s experience regarding what the arbitrators and juries are likely to protect as trade secrets. Accordingly, here are the first five things from a litigator’s perspective that a transactional lawyer should examine when they are conducting trade secret due diligence.
Last year Congress tried to pass a bill aimed at curbing abusive patent litigation initiated by so-called “patent trolls,” or non-practicing entities (NPEs), but the bill died in the Senate when it was dropped from the Senate’s agenda as it was nearing a vote, even though the bill had passed in the House and President Obama had indicated he would sign it. This year, the push for legislation has been revived and bills have been introduced in both the House of Representative and the Senate.
Patent holders bringing infringement suits sometimes unnecessarily assert that a competitor infringes an unreasonable number of patent claims. Courts have the authority and discretion to reasonably limit the number of asserted claims in order to combat potential abuse. When that reduction should occur is less certain.
When a C corporation sells all of its assets and distributes the proceeds to its shareholders, the corporation first pays tax on the gain on the sale, and then the shareholders pay a second level of tax on the receipt of the proceeds. However, when an S corporation sells its assets, there is generally only one level of tax on the sale. That tax is imposed at the shareholder level based on the shareholder’s pro-rata share of the gain realized by the corporation on the sale. This single tax result is roughly equivalent to the tax treatment the shareholders would experience on a sale of their stock. Because buyers often prefer to purchase assets rather than stock, this favorable single tax treatment is a significant benefit to S corporation shareholders.
By J. Marc Ward
What goes on when crafting an acquisition agreement to purchase a company? Or to say it differently, why do lawyers insist on one phrase or word over another? “Legalese” has its place.
Brokered deposits can be an efficient, inexpensive source of needed liquidity to fund growth, but they do come with regulatory strings attached. Because regulators view brokered deposits as a potentially volatile liquidity source that may lead to overly aggressive growth if not used properly, restrictions are placed on their use.
The District of Minnesota is one of the busiest courts in the nation. The District also carries a greater than average load of patent cases. The Senior Status Judges in the District take a full case load, but do not handle patent cases.
When should a company facing charges of patent infringement be required to recall the accused products? A recent District of Minnesota decision noted the absence of controlling authority on that question, but ordered a recall nonetheless.
District of Minnesota Holds that Mayo, Myriad, and Alice Apply to Dog-Eat-Dog World of Canine Genetic Testing
On March 31 in Genetic Veterinary Sciences, Inc., d/b/a Paw Print Genetics v. Canine EIC Genetics, LLC, No. 14-CV-1598 (JRT/JJK), Judge John R. Tunheim addressed the question of whether veterinarians can obtain patents for identifying genetic markers of canine disease. Not surprisingly, the court held that the Supreme Court’s recent decisions regarding unpatentable subject matter (Mayo Collaborative Servs. v. Prometheus Labs; Ass’n for Molecular Pathology v. Myriad Genetics, Inc.; and Alice Corp. Pty. Ltd. v. CLS Bank Int’l) apply equally to all forms of medicine, even if the patient is a dog. Because the patent claims simply identified a natural law, Judge Tunheim found them invalid.