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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


A dismissal for lack of standing should generally be without prejudice
  • McDermott Will & Emery
  • USA
  • July 27 2009

Addressing yet another standing dispute, the U.S. Court of Appeals for the Federal Circuit overturned a dismissal for lack of standing with prejudice, noting the general rule that a dismissal on that basis should ordinarily be without prejudice


Bayer patent is KSR-ed as “obvious to try”
  • McDermott Will & Emery
  • USA
  • August 31 2009

Affirming the district court ruling invalidating Bayer’s patent covering the birth-control drug Yasmin on the basis of obviousness, a divided panel of the U.S. Court of Appeals for the Federal Circuit held that claims to a “microized” (in terms of particle size) drug formulations was an obvious way to try to increase the exposed surface, notwithstanding prior art that said it couldn’t be done


“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


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


Two-way test for obviousness type double patenting narrowly applied
  • McDermott Will & Emery
  • USA
  • June 30 2009

The U.S. Court of Appeals for the Federal Circuit determined that the two-way test for obviousness-type double patenting is applicable when the claims could have been presented in an earlier application in the family


Adidas wins US case against two and four stripe
  • McDermott Will & Emery
  • USA
  • September 10 2008

Less than a month after the European Court of Justice (ECJ) ruling in Adidas v Marca Mode 2008 C-10207, Adidas has won a U.S.$305 million payout in the United States from Collective Brands in a lawsuit seven years in the making


No declaratory judgment for unregistered copyright
  • McDermott Will & Emery
  • USA
  • October 31 2008

Addressing issues of subject matter jurisdiction in a copyright-based declaratory judgment action, the U.S. Court of Appeals for the Eleventh Circuit found a lack of subject matter jurisdiction where there was no registered copyright in dispute


Preamble language presumed to provide context, not impose limitations
  • McDermott Will & Emery
  • USA
  • May 31 2008

Addressing the rules of claim construction pertaining to preambles and preferred embodiments, the U.S. Court of Appeals for the Federal Circuit vacated the district court’s summary judgment of non-infringement