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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


When is a design around a mere “colorable variation”? An injunction order ambiguous? (Stay tuned)
  • McDermott Will & Emery
  • USA
  • May 31 2010

Heralding a busy en banc season for Judge Rader’s first year as chief judge, the U.S. Court of Appeals for the Federal Circuit has issued its second en banc order in less than a month, this time vacating its panel decision in TiVo v. EchoStar, and taking up Judge Rader’s dissent on the issue of when a contempt holding, as applied to a design-around by an enjoined party, is appropriate


Clear and unmistakable disavowal of claim scope required for prosecution history estoppel
  • McDermott Will & Emery
  • USA
  • December 28 2007

Overturning a district court’s finding of prosecution history estoppel, the U.S. Court of Appeals for the Federal Circuit held that an allegedly disclaiming statement made during prosecution was not a “clear and unmistakable” disclaimer to one skilled in the art


Parent company denied recovery for lost profits of subsidiary
  • McDermott Will & Emery
  • USA
  • June 30 2008

The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s grant of summary judgment in the damages phase of 18-year-old litigation, denying recovery for lost profits


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


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


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


Hold on to your jeansdistrict court oppositions not limited to issues presented to TTAB
  • McDermott Will & Emery
  • USA
  • May 31 2008

The U.S. Court of Appeals for the D.C. Circuit has now ruled that a trademark opposition under 21(b) of the Lanham Act need not be limited to the issues presented before the Trademark Trial and Appeal Board (TTAB


Tracking prosecution history to a narrow claim construction
  • McDermott Will & Emery
  • USA
  • September 28 2009

Citing the prosecution disclaimer from the patentee’s assertions of its “simple” invention to overcome obviousness rejections, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s claim construction, which included a negative claim limitation that disposed of the plaintiff’s case