Publications
The general counsel of AJAX Corporation is on the phone. AJAX has just been sued for breach of contract and associated was a distant state court renowned for its hostility to outsiders, fondness for hometown plaintiffs, and enthusiasm for heart-stopping punitive damage verdicts. Not surprisingly, the plaintiff wants a jury trial and a modest seven- […]
This issue is the first from Jack Dunham as our new editor-in-chief. He has decided to use his column on occasion for substantive commentary on a single issue. His column, in this issue, addresses arbitration, a subject on which he is exceptionally well versed and has written a number of articles. In particular, Mr. Dunham […]
As most of you probably know, most product liability claims in the U.S. are based on the doctrine of strict liability. This doctrine holds sellers of defective and unreasonably dangerousproducts responsible for injuries caused by those products, even without a showing of negligence. These products have included everything from food, furniture, and kitchen appliances to […]
On September 1, 2005, Representative Lamar Smith introduced a “coalition Print” version of a patent reform bill (Substitute bill H. R. 2795) into Congress. That bill included a post-grant opposition procedure not later than nine months after grant. On April 5, 2006, Representative Howard Berman introduced the “Patents Depend on Quality Act of 2006” (H.R. […]
Anticipating change and building integrity Hedge funds have been making headlines in major newspapers lately, and it is not all good news. Nor is it the first time in recent memory that the media has flocked to stories of hedge fund fraud, huge losses, lagging investor confidence, and possible increases in regulation or disclosure. The […]
“Justice, Justice Shalt Thou Pursue.” (Deuteronomy 16.20) This was the theme of an address by Seth P. Waxman, the former solicitor general of the United States, whom I had the honor to introduce at a recent event. As Waxman explained, pursuing “justice” is not to be confused with pursuing the “law.” This is not to […]
By Robert M. Langer and Thomas J. Witt1During the past twenty years, most-favored-nation (MFN) clauses have proliferated in contracts between third-party payers and health care providers throughout the country. These clauses, in their various forms, require the provider of health care services to guarantee to the third-party payer that the provider will charge to that […]
The communications industry is experiencing an unprecedented wave of mergers and acquisitions. Merging entities and their counsel are, of course, resigned to the fact that federal regulatory and antitrust enforcement agencies, as well as state public service commissions, must be consulted before most are finalized. It can, however, be unsettling, when the same merger that […]
As most lawyers know, the general rule that an appellate court will not consider an argument raised for the first time on appeal is riddled with exceptions and ambiguities. The Supreme Court made sure of that when it considered the issue and ‘[a]nnounced no general rule,’ instead leaving it ‘primarily to the discretion of the […]
While all nine statements in the Statements of Antitrust Enforcement Policy in Health Care were re-issued by the Federal Trade Commission (FTC) and the Department of Justice (DOJ) on Aug. 28, only Statement 8 on physician network joint ventures and Statement 9 on multiprovider networks were actually revised. The revisions to Statements 8 and 9 […]
For years, a debate has raged over where to draw the line between ensuring that large numbers of claimants alleging common injuries have meaningful access to the courts and protecting defendants’ substantive rights to demand proof of the elements of each plaintiff’s claim. The chief focus of this debate has been whether the courts have […]
Introduction The Antitrust Division of the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) released a revised version of their “Statements of Antitrust Enforcement Policy in Health Care” (“Guidelines”) on August 28, 1996. While all nine Statements contained in the Guidelines were reissued, only Statement 8 on physician network joint ventures […]
The Antitrust Division of the United States Department of Justice and the Federal Trade Commission Release Revised Antitrust Enforcement Guidelines The Antitrust Division of the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) released a revised version of their “Statements of Antitrust Enforcement Policy in Health Care” (“Guidelines”) on August 28, […]
Non-profit hospitals and other non-profit or charitable health care organizations may be able to claim a limited exemption from the antitrust laws for the purchase and resale of supplies for their own use under the Non-Profit Institutions Act (15 U.S.C. § 13c.). In general, the Robinson-Patman Act prohibits the contemporaneous sale in interstate commerce of […]
“The difficulty in life is the choice. The wrong way always seems the more reasonable.” George Moore [1852-1933] I. INTRODUCTION At last year’s seminar, we considered the ex parte reexamination protocol in the context of down-side risks to the patentee associated with amendments and arguments that are part-and-parcel of a reexamination proceeding. This year we […]
Having spent twenty-one years in the service of the public, and the last four years in the private practice of law, I have taken on the task, perhaps quite presumptuously, of moralizing to two constituencies my current brethren and my former brethren. I have chosen two distinct sets of problems: (A) ineffective representation by some […]
The Antitrust Division of the U.S. Department of Justice, the Federal Trade Commission, and state attorneys general, as any antitrust aficionado knows, have dramatically improved the level of communication, cooperation, and coordination among themselves in the investigation and prosecution of antitrust violations during the past decade.1 Two important examples of such coordination are the 1998 […]
Reprinted with permission from Intellectual Property Today December 1998. Introduction Prior to 1952, an inventorship error was a death sentence for an issued patent. Patents that failed to name the exact combination of persons responsible for inventing the claimed subject matter were deemed invalid as a matter of law under 35 U.S.C. § […]
Reprinted with permission from IDEA the Journal of Law and Technology. Vol.39, no.2 1999. The Division of Patent Rights Among Joint Inventors Public Policy Concerns After Ethicon v.U.S. Surgical: Dale L. Carlson & James R. Barney 1 I. INTRODUCTION “[T]he Constitution recognizes an original, preexisting, inherent right of property in the invention and authorizes Congress […]
Based upon my experience as a law clerk and on many conversations with judges about effective appellate brief writing, I can safely make the following generalization about appellate judges: When they pick up a new brief their first question is, “What is this case about?” To answer that question, the judge usually turns to the […]
I am most pleased to be serving as Association historian at the behest of President Ed Vasallo and with the support of the NYIPLA Board. There is much to recount concerning the illustrious history of this organization. Where to begin? Let’s begin with a discussion of our Association’s role in patent reform initiatives.
Monday, Jul 16, 2007 – The Supreme Court’s decision in Credit Suisse v. Billings, number 05-1157, slip op. (June 18, 2007) was the third in this term’s by now well-documented, pro-defendant quartet of antitrust cases. The opinion marked the Court’s first foray into the question of implied antitrust immunity in the face of congressional silence […]
Recent corporate scandals have resulted in increased scrutiny of corporate business practices. Congress and regulators have responded to a perceived crisis in the business community not only by changing the obligations of accountants, CEOs, CFOs, audit committees and boards of directors, but also by placing new obligations on corporate counsel.
Just two years ago, relatively only yesterday in the distinguished history of our profession, the PTO released a sweeping “21st Century Strategic Plan” that spurred public debate on many of its proposals. The proposed “Periodic Certification for Registered Practitioners” stayed under the radar, however, evoking a modicum of comment and little debate in spite of […]
Attorneys who understand the law of the case doctrine among courts of the same level can take advantage of every valid opportunity to argue the client’s position. An understanding of the basic principles of the doctrine and its inappropriate uses assists in warding off an inappropriate law of the case challenge.
In the wonderful world of patent law, the words “prosecution history estoppel” often go hand-in-hand with “doctrine of equivalents”, inasmuch as the existence of the former serves to limit the range that is available for the latter. This paper will review the interplay of these doctrines from two vantage points.
The test for an association’s standing to sue on behalf of its members has existed for thirty years, dating back to the U.S. Supreme Court’s decision in Hunt v. Washington State Apple Advertising Commission. It appears that franchisee associations have often encountered difficulty passing this test, although the reported authority on associational standing in franchise […]
This presentation on mass tort claims in the U.S. covers such topics as number of cases, amounts of judgments, recent litigation and legislative developments, anticipated future developments and a case study of fast food obesity claims.
The corporate veil covers much, but it does not cover everything. That could have been the opening line of each of two important business law decisions handed down by the Connecticut Supreme Court a week apart this past summer: Celentano v. Rocque, 282 Conn. 645 (2007), and Weber v. U.S. Sterling Securities Inc., 282 Conn. […]
Yogi Berra once observed “when you come to a fork in the road…. take it.” It seems that we may have come to a fork in the road, so to speak, as far as efforts to change the patent system are concerned. During the last few months, proposed legislation has been introduced into Congress that […]