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The top five intellectual property traps in M&A transactions

  • McDermott Will & Emery
  • -
  • USA
  • -
  • August 31 2010

In M&A transactions, many lawyers assume that intellectual property (IP) rights will automatically transfer with the purchase and that IP issues can be cured by general representations and warranties

License to “make” includes an inherent right to “have made”

  • McDermott Will & Emery
  • -
  • USA
  • -
  • June 30 2009

The U.S. Court of Appeals for the Federal Circuit recently held that a license to make a patented article includes an inherent right to have a third party make the article absent express language to the contrary

FDA confirms its view on generic drug label carve-outs

  • McDermott Will & Emery
  • -
  • USA
  • -
  • August 21 2008

The Camptosar decision clarifies questions surrounding whether and to what extent a generic drug applicant must match each of the pioneer drug’s labeled uses or whether certain uses of the pioneer drug can be carved out by the generic applicant as a result of patent or statutory exclusivity bars

Plastic breakable turkey wishbone meets minimal creativity required for originality

  • McDermott Will & Emery
  • -
  • USA
  • -
  • May 31 2010

In an appeal of what the plaintiff creator called a “classic case of David and Goliath,” a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed that the plaintiff’s copyright in the design of a plastic breakable turkey wishbone was valid, as it met the minimal amount of creativity required to constitute an “original” work of authorship

“Thin” copyright for arrangement and coordination of common architectural elements won't cut it

  • McDermott Will & Emery
  • -
  • USA
  • -
  • January 30 2009

Addressing for issue of similarity of copyrighted architectural plans, the U.S. Court of Appeals for the Eleventh Circuit held that no reasonable observer could find that two plans in dispute were substantially similar

Inventorship claim to laser vision correction technology barred by laches

  • McDermott Will & Emery
  • -
  • USA
  • -
  • August 31 2008

The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s grant of summary judgment that a claim of inventorship was barred by laches and that state law claims of unjust enrichment and fraud were barred by the applicable statute of limitations

Patent assignment recorded at USPTO creates a rebuttable presumption of a valid assignment

  • McDermott Will & Emery
  • -
  • USA
  • -
  • April 28 2010

Addressing the burdens of proof associated with a standing challenge based on the validity of an assignment, the U.S. Court of Appeals for the Federal Circuit upheld the U.S. International Trade Commission’s (USITC’s) determination that the recordation of a patent assignment at the U.S. Patent and Trademark Office (USPTO) created a rebuttable presumption of a valid assignment which shifted the burden to rebut that presumption to the party challenging standing

Court rejects copyright protection for computer program found lacking originality

  • McDermott Will & Emery
  • -
  • USA
  • -
  • May 30 2007

A recent decision from the United States District Court for the Eastern District of Kentucky provides important guidance about the amount of creativity required to support copyright in a computer program and the nature of fair use in the context of interoperability

Trademark owner’s ability to stop repackaging of authentic goods remains limited

  • McDermott Will & Emery
  • -
  • USA
  • -
  • February 29 2008

Addressing the reach of the Supreme Court’s landmark Coty decision, the Fifth Circuit upheld a grant of summary judgment to defendants who repackaged plaintiff’s products with a disclaimer, holding that there was no issue of material fact and that the packages “cannot cause confusion.”

Teachings incorporated by reference for anticipation purposes need not be individually named

  • McDermott Will & Emery
  • -
  • USA
  • -
  • September 28 2009

Finding that material not explicitly contained in the single, prior art document may still be considered for purposes of anticipation if incorporated by reference into the document, the U.S. Court of Appeals for the Federal Circuit reversed and remanded a district court’s summary judgment that patents were not invalid for anticipation