Law Firm News

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Law Firm News

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Bracewell & Giuliani LLP

The Legal 500 Ranks Bracewell & Giuliani's Corporate and Finance Practices, Attorneys
The Legal 500 US-Volume I (Corporate and Finance) ranked Bracewell & Giuliani LLP in the top tier for its mergers and acquisitions expertise and among the leading law firms for its work in credit and syndicated transactions. Eleven lawyers in the firm's New York and Houston offices were also individually recognized in each of those two practice areas.

The Corporate and Finance, the first of four guides covering the U.S. legal market, is The Legal 500's premiere volume in America. For nearly 20 years, The Legal 500 has been providing independent commentary on law firms in more than 80 different countries/jurisdictions.

11-29-2006

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Weil, Gotshal & Manges, LLP

Weil Gotshal Advises HM Rivergroup PLC in One of the Largest Transactions in Irish Corporate History
International law firm, Weil, Gotshal & Manges, has advised HM Rivergroup PLC in relation to the acquisition of Houghton Mifflin Holding Company, Inc. and Riverdeep Holdings Limited in a combined $5 billion transaction, one of the largest cross-border acquisitions by an Irish company. This transaction brings together one of the most established and successful educational book publishers in the United States with the premier publisher of electronic courseware for the U.S. K-12 market. We are delighted to have acted for HM Rivergroup in this transaction, having been introduced by Credit Suisse to Riverdeep Holdings Limited and its controlling shareholder, Barry O'Callaghan, in 2005. Weil Gotshal has since worked with Riverdeep on several assignments.

The Weil Gotshal London team was led by corporate partners Jeremy Dickens and Ian Hamilton with assistance from associates Aparna Ravi, Yomi Ademola and Kristen McFetridge. Antitrust advice was provided by associate Joseph Rafferty. Tax advice was provided by partner Sarah Priestley, assisted by senior associate Jane Scobie. Of Counsel Joanne Etherton provided advice on employee benefits, assisted by associates Peter Van Keulen and Marcus Fink.

The Weil Gotshal New York team included antitrust partner Fiona Schaeffer while tax advice was provided by partner Helyn Goldstein and associate Meg Brown. Partner Elaine Stangland and associates Lavesh Samtani and Noah Kressler provided banking advice. Capital markets advice was provided by partner Todd Chandler and associates Heather Emmel, Richard Fine, Erika Weinberg, Temi Ofuya and Rozanna Tesler. IP issues were handled by partner Elizabeth Weiswasser and associate Rehka Ramani, with partner Michael Kam advising on employee benefits, assisted by associate Anna Grant.

The Weil Gotshal Washington DC team, who gave advice on tax and environmental issues, included partner David Bower, partner Annemargaret Connolly and associate Mary Lake.

11-29-2006

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McGuireWoods LLP

Business.gov – A Tool for All Businesses to Meet Federal Compliance Requirements
A recently launched Federal Government Website, Business.gov, provides businesses a one-stop resource that links to and researches the Websites of Federal Government agencies that regulate or serve businesses for compliance information or resources. Business.gov makes it easier to find information on rules and regulations regarding various issues that present challenges for businesses.

Business.gov is the official business link to the Federal Government. It is managed by the U.S. Small Business Administration (SBA) in partnership with 21 other Federal agencies. This partnership, known as Business Gateway, is a Presidential E-Government initiative that provides a single access point to Government services and information to help the nation’s businesses with their operations.

Although designed for small and mid-sized businesses, Business.gov is a valuable research tool for all businesses. For those cases in which Business.gov does not have the answer or the answer is unclear, McGuireWoods has lawyers ready to assist you on the full range of Federal and State rules and regulations.

11-29-2006

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McGuireWoods LLP

Senator-elect Jim Webb Selects Paul Reagan for Chief of Staff Slot
U. S. Senator-elect Jim Webb has chosen Paul Reagan to be his Chief of Staff. Reagan is currently a Senior Vice President at McGuireWoods Consulting LLC, the public affairs subsidiary of McGuireWoods LLP.

Reagan came to McGuireWoods Consulting after serving as Communications Director for Governor Mark Warner. At McGuireWoods Consulting he has provided strategic communications counseling to clients around the country.

“Paul Reagan joins a long line of members of the McGuireWoods family who have been selected for prominent positions in public service,” said Robert L. Burrus, Jr., Chairman of McGuireWoods LLP. “His deep appreciation for the public policy issues facing Virginia and our nation, and his keen understanding of the Virginia political scene make him an inspired choice for this important position. We congratulate him and wish him well.

11-29-2006

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McGuireWoods LLP

U.S. Supreme Court Concerned with “Teaching-Suggestion-Motivation” Test for Determining Obviousness of Patents
The flow of patents depends on the level of obviousness. The standard of obviousness is the primary gate keeping determinant for the grant of patents, and is by far the most common ground for the challenge of patent validity. Since Graham, there has been only a handful of obviousness challenges at the Supreme Court, most recently nearly 30 years ago in Sakraida v. Ag Pro, Inc., 425 U.S. 273 (1976). No patent has been sustained in any of these post-Graham obviousness challenges. KSR also represents the first time since Graham that the Court considers the fundamental standard of obviousness under the patent law.

The most recent Terms of the Court have seen Supreme Court grant of certiorari in more patent cases since 1965, with results generally unfavorable to the patentee. The electronics and manufacturing industries have charged that the Federal Circuit’s standards for patentability, validity, and enforcement are too liberal. If this trend continues, it is likely that the Court will reverse KSR and remand for consideration of obviousness under a more stringent standard, most probably based on the seminal case of Graham v. John Deere, decided some 13 years after section 103 was codified into the patent laws.

By way of background, the patent statute provides that a patent shall not be granted “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.”

In practice, an objective test for obviousness to determine whether or not an invention is patentable (or, if issued, whether it is valid) has been difficult to formulate and even more difficult to apply for the U.S. Patent and Trademark Office (PTO) which grants patents, and for the courts where the issued patents are litigated. Yet, despite the difficulty in formulating and applying a test, the issue of obviousness is central to almost all patent applications prosecuted in the PTO, and the issue is raised as a defense in almost all patent litigation.

In Graham v. John Deere, the Court considered the language of the statute and held that obviousness is an issue of law, and that a proper 103 analysis must consider: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the pertinent art resolved; and (4) “against this background, the obviousness or non-obviousness of the subject matter is determined.” The Court went on to state that certain so-called “secondary considerations” such as commercial success, long-felt but unresolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.

The Court of Appeals for the Federal Circuit, formed in 1982 to secure some consistency in patent jurisprudence, has generally given lip service to the Graham test, but has made some additional requirements and modification from the original Graham decision.

First, while the Federal Circuit has acknowledged that obviousness is a legal determination, it has recognized there are factual issues involved that can be determined by the jury. Second, the Federal Circuit has mandated that the “secondary considerations” (per Graham) must be considered if they are present, and held that these “secondary considerations” are often the most important factors in determining obviousness. Third, and most important to the KSR appeal, the Federal Circuit has developed a so-called “teaching-suggestion-motivation” test that it has held must be applied in making an obviousness determination.

Specifically, under Federal Circuit jurisprudence, there must be some teaching or suggestion or motivation in the prior art itself to combine multiple references and to make the claimed invention. This “teaching-suggestion-motivation” test was born as a result of the Federal Circuit’s concern that the PTO or patent challengers could simply take a look at the invention and then, through hindsight, assemble the claimed invention by picking and choosing disparate elements from the prior art.

The invention at question in KSR was an automobile gas pedal that had electronic circuitry. The prior art gas pedals were mechanically driven. The Federal Circuit, in a non-precedential opinion that applied the “teaching-suggestion-motivation” test, had held that the patent was not invalid under 103.

During oral argument, almost all justices expressed dissatisfaction and concern with the “teaching-suggestion-motivation” test. Chief Justice Roberts called the test “Federal Circuit jargon,” while Justice Scalia called it “gobbledygook,” “irrational” and “three imponderable nouns.” Justice Breyer and Chief Justice Roberts were particularly troubled by the “motivation” prong of the test which neither justice understood.

Members of the Court seemed concerned that the PTO and the courts have rigidly applied the “teaching- suggestion-motivation” test, but failed to take into consideration mere common sense in assessing motivation, requiring instead that one find the motivation in the prior art itself. For example, Justice Breyer indicated that once Ford Motor Company decided to use electronics in its automobiles, there was a clear motivation for an inventor to develop a gas pedal that used electronic circuitry rather than mechanical feed.

However, the Court did not appear ready to completely abandon the test; only to relegate it as a possible “nonexclusive” factor that could be considered in the appropriate circumstance. Justice Ginsburg, Justice Kennedy, and Justice Stevens, for example, appeared to indicate that the test could be useful or valuable if it were not the exclusive test for obviousness. Further, the accused infringer was unable, when asked repeatedly by Justice Kennedy, to describe what a proper test for obviousness should be.

On a broader level, and consistent with the Court’s ruling in other recent patent cases, at least some justices expressed concern that there were too many issued patents of questionable validity. Justice Breyer questioned whether the Federal Circuit had gone too far in validating patents and had “never seen a patent they didn’t like . . .” Justice Alito appeared to indicate that application of the “teaching-suggestion-motivation” test had given rise to questionable patents such as that for the garbage bags that resemble pumpkins. Nonetheless, the Court seemed cognizant that a wholesale upheaval of the standard for obviousness could have dire effects. Justice Souter queried whether a radical change in the law would precipitate 100,000 new law suits being “filed tomorrow.”

Despite reluctance for a complete overhaul of the obviousness inquiry in patent cases, it seemed clear that a majority of the justices believed this particular invention is invalid for obviousness. The likely outcome of the KSR case is a reversal and remand to the Federal Circuit in which the Court supports the continuation of the “teaching-suggestion-motivation” test. But unlike the current test where a patent challenger must establish a teaching or suggestion or motivation to reach the claimed invention, under a modified test, this would only be one factor the trial judge could consider in appropriate circumstances.

It is unlikely the Court will make major changes in the patent law of the Federal Circuit, as it recognizes there would be great upheaval as to the more than 20-year practice of the PTO in granting patents, and the federal courts in litigation of patents. Huge numbers – perhaps several hundred thousand – would suddenly be of questionable validity under a lowered standard to challenge patent validity

11-29-2006

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McGuireWoods LLP

McGuireWoods Partner Named a “Leader in the Law”
Anne Marie Whittemore, a partner at McGuireWoods LLP, has been named one of Virginia’s “Leaders in the Law” for 2006 by Virginia Lawyers Weekly. The publication established the award this year to honor the lawyers who are setting the standard for other lawyers.

Only 15 people were chosen as inaugural recipients. The criteria for selection included activities in the previous 12 months that demonstrated outstanding contributions and achievements through the practice of law, leadership in improving the justice system and significant service to the judiciary, the legal community and the community at large.

Whittemore most recently chaired the Commission on Virginia Courts in the 21st Century, which was established to make recommendations for the future of the Virginia court system consistent with the goal "to benefit all, to exclude none."

“Ms. Whittemore’s background certainly suggested that she would be the ideal chairman of the commission,” says Alan Cooper, editor of Virginia Lawyers Weekly. “The charm, grace and intellectual rigor she displayed during its work only reinforced the wisdom of her selection.”

Known nationally for her practice in complex commercial litigation, Whittemore has broad experience in complex commercial litigation at the trial and appellate levels, including general corporate, securities, environmental and constitutional litigation. She is a member of the American College of Trial Lawyers, and has served as president of the Richmond Bar Association.

11-29-2006

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Robinson & Cole LLP

Robinson & Cole Land Use and Zoning Lawyer on Speaks at Florida Redevelopment Association Annual Meeting
R&C Land Use attorney Robert J. Sitkowski recently spoke at the annual meeting of the Florida Redevelopment Association in Miami. His presentation was part of a panel entitled "Promoting Affordable Housing Using Carrots and Sticks," where he was joined by the developer of Biscayne Landing and a housing policy economist from the National Association of Home Builders.

11-29-2006

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