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Powell Goldstein LLP

High Court Ruling May Boost Patent Litigation; Case Eases Standard for Legal Challenges to Existing Patents - Chuck Warner Quoted
Although the full impact of a U.S. Supreme Court decision exposing patents to broader legal challenges won't be clear for years, holders of existing patents may have a tougher time defending them in court, legal experts say.

At the same time, future patents issued in accordance with the high court's ruling in KSR International Co. vs. Teleflex Inc. would meet stricter criteria and thus be less likely to be voided, patent litigation experts note.

One thing that does seem certain is that last week's ruling, which scaled back patent protections, will have little if any immediate impact on the patent infringement insurance market. The market is a very small one that underwriters have shunned as they've suffered losses in recent years.

The case involved a dispute over a gas pedal that was produced by Canadian manufacturer KSR of Ridgetown, Ontario. The pedal combined two elements-the pedal itself and an electronic sensor. Limerick, Pa.-based Teleflex sued KSR, claiming the device infringed on a patent it held for a pedal equipped with a sensor. KSR countered that merging the two components was ``obvious'' and therefore not subject to patent infringement litigation.

A federal court in Michigan agreed with KSR, but the U.S. Court of Appeals for the Federal Circuit, which has sole jurisdiction over patent issues, disagreed and upheld Teleflex's claim. KSR appealed to the Supreme Court, which held in a technologically detailed opinion that the appeals court had applied too rigid a standard in upholding Teleflex's suit.

"As progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws,'' wrote Associate Justice Anthony Kennedy for the unanimous court. "Were it otherwise, patents might stifle, rather than promote, the progress of useful arts.''

"KSR provided convincing evidence that mounting a modular sensor on a fixed pivot of the Asano pedal was a design step well within the grasp of a person of ordinary skill in the relevant art,'' he added.

Reacting to the ruling, Cynthia E. Kernick, a patent attorney who was not involved in the case said: "KSR addresses patents that are combination patents. The question is: Was it obvious to put them together? If it's obvious, it's not patentable.'' Ms. Kernick is a partner in Reed Smith L.L.P.'s Pittsburgh office.

"The standard now is very broad,'' said Ms. Kernick. She said the impact of the decision will take time to sort out. "It's an over time issue-in the near run, the first year or 18 months-there's still going to be a lot of sparring. There are a lot of cases in the pipeline.''

"This is pretty bad actually for the patent owners,'' said Michael Fein, a partner at Cozen O'Connor P.C. in Philadelphia. "It's really weakening patents.''

But what could be bad news for existing patent holders might be good news for those whose applications win approval under the Supreme Court's new guidance, said another patent attorney.

"Initially, the risk of a defendant in a patent litigation lawsuit may decrease slightly because current patents may be easier to invalidate and fewer pending patent applications may be allowed to become patents,'' said Chuck Warner, a partner in the Atlanta office of Powell Goldstein L.L.P. "In the long term, however, the risk of a defendant in a patent litigation lawsuit may increase slightly as those patents'' which are issued may be stronger.

Although the decision is "very interesting,'' it "probably will not have a great impact on the market for intellectual property insurance,'' including patent infringement coverage, said Robert W. Fletcher, president of Louisville, Ky.-based Intellectual Property Insurance Services Corp., a managing general agent that represents one of the few markets for patent infringement coverage.

Mr. Fletcher said only about 10% of all patents issued are commercially feasible, and only 3% to 4% are actually marketable. "There's an awful lot of defensive patenting going on,'' he said.

George Stewart, another partner in Reed Smith's Pittsburgh office, said the decision should have an impact on the patent insurance marketplace eventually.

"I think that with the enhanced availability of this defense, you are going to see a decline in the number of patent infringement claims that are filed, and thus less in the way of underwriting loss experience over time,'' Mr. Stewart said. "One would think that one would see a corresponding decrease in the costs of premiums charged for policies that defend against claims would drop.''

There's no short-term impact for the patent infringement insurance marketplace "because there isn't one,'' said Chad Milton, senior vp and national practice leader-media liability and intellectual property in Marsh Inc.'s Kansas City, Mo., office. "There is virtually no patent marketplace because of historical losses,'' he said.

Limits are low and tend to be attractive only to smaller companies, he said. The decision could, however, ``help create one.''

"There are some bits and pieces'' of coverage available, noted John Brosnan, senior vp and director-media and intellectual property practice for Aon Corp. in Chicago. "It's certainly a very limited marketplace. I'm not anticipating that the decision's going to have any immediate impact on the current insurance offerings.''

And risk managers seeking patent infringement coverage under commercial general liability policies could be in for a disappointment, Marsh's Mr. Milton said.

"The new versions of the CGL make clear that all intellectual property is excluded except for copyright infringement in advertising,'' he said. "Under new policies the CGL underwriters have made it clear there is no coverage for patent infringement,'' although "under older policies, it is ambiguous,'' he said.

KSR International Co. vs. Teleflex Inc. U.S Supreme Court. No. 04-1350. Decided April 30, 2007.

05-07-2007

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Morrison & Foerster, LLP

Structured Products Magazine Again Names Morrison & Foerster Law Firm of the Year for Its Leading Role in the Market
For the second year in a row, Morrison & Foerster has been recognized for its leadership in complex financial products and named “Law Firm of the Year, Americas” by Structured Products magazine.

The firm was singled out for its development of innovative financial products, hybrid securities and structured notes. “With more than 1,200 lawyers, Morrison & Foerster is one of the biggest law firms in the world, and it continues to play a leading role in the growth of the North American structured products market,” noted the editors.

The award was presented on May 3rd in Miami.

“To be recognized for our expertise by one of the leading publications in the field is truly an honor and acknowledges the success our Capital Markets and Tax practices have enjoyed over the past several years,” said Morrison & Foerster Chair Keith Wetmore.

Working with its clients, the firm has introduced several new structured products, including transactions incorporating credit default swaps that reference notes linked to hedge fund interests; structured notes linked to equities, indices and other reference assets, such as commodities and commodity indices; embedded credit default swaps that reference traded credit default swap indexes; hybrid securities, including Tier 1/D basket products; DRD and other hybrid securities; and a variety of new derivatives products.

“We’re thrilled to once again be selected as law firm of the year by Structured Products magazine,” said Morrison & Foerster's James R. Tanenbaum, who heads the Capital Markets practice. “Once again, this award reflects the creativity of our clients and the market’s recognition of their ingenuity.”

Structured Products, published by Incisive Media Ltd., is a monthly magazine dedicated to the wholesale market for derivatives-based investment products. It covers the fast-growing market for guaranteed equity products, structured notes, index products, alternative investments and funds of funds. It crosses equity, fixed income, commodity-linked and other sectors.

05-07-2007

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McDermott Will & Emery

New York Office Welcomes Trial Partner
Andrew B. Kratenstein has joined the New York office of McDermott Will & Emery as a partner in its Trial Department. Mr. Kratenstein's commercial litigation practice is focused on securities, contract and patent disputes.

Mr. Kratenstein's experience includes representing an investment bank in approximately 40 cases arising out of the bankruptcy of a major energy company; representing companies in tender offer litigation; defending a major technology company against patent infringement claims and litigating First Amendment claims on behalf of a prominent law school faculty.

"Andrew is very talented, and he will quickly become an asset to our office, as well as across the Firm," commented Peter J. Sacripanti, head of the Firm's New York office.

Before beginning his practice, Mr. Kratenstein served as a law clerk for the Honorable Richard W. Roberts of the U.S. District Court for the District of Columbia.

"Andrew is a great addition to our team," commented Jeffrey Stone, head of the Firm's Trial Department. "His array of dispute experience is a good fit with our practice and his know-how will be useful to several of our practice groups."

Mr. Kratenstein served as an intern in the U.S. Attorney’s Office Drug and Organized Crime Task Force during law school. He was also an editor for the Harvard Journal on Legislation. He earned his J.D., cum laude, from Harvard Law School, and his B.A., Phi Beta Kappa, from Cornell University. Mr. Kratenstein is admitted to practice in New York, the Southern District of New York and the Eastern District of New York.

05-07-2007

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Loeb & Loeb, LLP

Loeb & Loeb Represents Brookfield in its Lease of One World Financial Center Space
Loeb & Loeb LLP’s real estate team led by Partner and Chair Raymond Sanseverino represented its client Brookfield Financial Properties, in its lease of 57,439 square feet of space at One World Financial Center to X.L. America, Inc. The deal closed on May 2, 2007. The new lease extends X.L.’s existing lease, of 11,019 square feet of space, for a total of 68,458 square feet at One World Financial Center.

As a result of this transaction, One World Financial Center, which is located in lower Manhattan in Battery Park City, is now 100% leased.

Brookfield Properties is an office property corporation that owns, develops and operates premier assets in the downtown core of high-growth North American cities, including New York, Boston, Washington, D.C., Los Angeles, Houston, Toronto and Calgary. Brookfield trades under the ticker symbol BPO on both the New York and Toronto Stock Exchanges. For more information, visit their website at www.brookfield.com. X.L. America Inc. is part of XL Capital Ltd. which through its wholly owned subsidiaries provides insurance and reinsurance coverages and financial products worldwide. For more information, visit their website at www.xlcapital.com.

Sanseverino has worked with Brookfield Financial Properties since 1998. He is Chair of the firm’s New York Real Estate Department and its Commercial Real Estate Leasing Practice Group. Loeb & Loeb’s bicoastal real estate team of more than 20 attorneys handles all manner of real estate transactions.

05-07-2007

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Jackson & Campbell, P.C.

J&C Director M. Elizabeth Medaglia Assumes Position in the Executive Office of the President
Jackson & Campbell is proud to announce that M. Elizabeth Medaglia, Director and former Chair of the Firm’s Liability Insurance Coverage Practice Group is leaving for a position in the Bush Administration. After being at the Firm for nearly 25 years, on May 14 Liz assumes the position of General Counsel, Office of Administration, Executive Office of the President. At the Executive Office of the President, Liz will join another former J&C Director, Alan R. Swendiman, Special Assistant to the President and Director of the Office of Administration, Executive Office of the President.

Liz joined Jackson & Campbell in 1982, after practicing with the government for ten years as Assistant United States Attorney for the District of Columbia, and as Associate and then Acting Solicitor of the Federal Labor Relations Authority. At J&C, her practice consisted primarily of representing liability insurers in major coverage disputes relating to environmental, toxic tort, healthcare, product liability, advertising injury, e-commerce, intellectual property, and construction claims.

Everyone at Jackson & Campbell thanks Liz for her contributions to the Firm, as well as to the legal and civic community; and wishes her success at the Executive Office of the President.

05-07-2007

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Howrey, LLP

Authorized Generics: Economic Analysis Shows Substantial and Lasting Price Reductions
Howrey LLP and CapAnalysis have released an economic study confirming that authorized generics result in substantial and lasting price reductions for consumers. Innovator drug companies introduce authorized generics at low prices in competition with the traditional or incumbent generic drug manufacturers. The study of the price impact of authorized generics was led by Howrey antitrust partner Mike Cowie and CapAnalysis economist Oliver Grawe, both of whom formerly served at the Federal Trade Commission (FTC).

The Howrey LLP and CapAnalysis economic study, supported by the Pharmaceutical Research and Manufacturers of America (PhRMA), substantiates an earlier study by IMS demonstrating that authorized generics lead to lower prices for consumers. The IMS study showed that, when an authorized generic was available during the 180-day marketing exclusivity period, prices dropped by about 16 percentage points compared to prices with generic drug exclusivity (i.e., when no authorized generic was available).

The Howrey LLP and CapAnalysis study refutes a paper commissioned by the Generic Pharmaceutical Association (GPhA). Howrey LLP and CapAnalysis found that the GPhA study departs from well-established economic principles used by FTC economists and other economists to measure the price effect of competition between competing drug manufacturers. The paper published by GPhA relies on inaccurate and incomplete data. The retail-level data that the authors rely on is poorly suited for analyzing pricing decisions made by competing drug manufacturers and does not measure prices paid by consumers. The authors of the GPhA study chose to rely on retail-level data that is incomplete – it excludes over 35 percent of prescription drug outlet sales and in particular the outlets in which consumers benefit most from the added price competition brought about by authorized generics.

Copies of the Howrey LLP and CapAnalysis Economic Study can be obtained using the link located at the bottom of this page.

05-07-2007

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Edwards & Angell, L.L.P.

Fifty Edwards Angell Palmer & Dodge attorneys named Best Lawyers in America
Throughout the year, numerous EAPD attorneys are listed in various legal directories. Because of its meticulous research methodologies and impartiality, The Best Lawyers in America has become one of the most prestigious legal directories today. Survey responses submitted by thousands of the country’s top lawyers are used to determine inclusion in this directory.

This year, fifty of our lawyers were listed in the 2007 publication of The Best Lawyers in America. Of these fifty attorneys, six were listed for the first time; eighteen have been listed for at least ten years; and five have been listed for at least twenty years.

05-07-2007

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