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Posts from June 2006.
Posted in General

The U.S. Court of Appeals for the Fourth Circuit has issued a favorable decision regarding the ability of a life insurance trust to acquire an insurance policy on the life of the grantor of the trust.

The slow, but steady, demise of the presumption of market power by patent holders in the world of antitrust has reached its inevitable end. In an 8-0 decision issued in March 2006, the U.S. Supreme Court eliminated the judicial presumption that holders of patents have the necessary market power to restrain competition through the use of tying arrangements.

Lead is a highly toxic metal that can cause adverse health effects in humans, especially children, ranging from cognitive impairment and learning disabilities to seizures and even death. For many years, lead was used in the manufacture of household paint. The U.S. Consumer Product Safety Commission banned the residential use of lead-based paint in 1978. However, more than an estimated 38 million homes in the U.S. that were built before that date still contain some lead-based paint. In fact, two-thirds of all homes built before 1960 are estimated to currently contain lead-based paint.

Posted in Litigation

To pay or not to pay– that is the question for patent licensees in the wake of a case recently granted review by the U.S. Supreme Court. In MedImmune, Inc. v. Genentech, Inc., a patent licensee suing to invalidate the patent was kicked out of court. The reason, according to the lower courts, was there was no “actual controversy” as required by the federal Declaratory Judgment Act and Article III of the U.S. Constitution for a federal court to hear the case, given that the licensee had never stopped paying royalties under the license from the patent holder. The high court will decide for patent licensees everywhere whether in order to challenge a patent in federal court, they must stop paying royalties, and as MedImmune put it, “risk crippling infringement judgments, with possible consequences of injunction, treble damages and attorneys’ fees.”

Texaco Inc. and Shell Oil Co. collaborated in a joint venture, Equilon Enterprises, to refine and sell gasoline in the western U.S. under the two companies’ original brand names. After Equilon set a single price for both brands, service station owners, using the name of Texaco and Shell Oil, brought suit against Texaco and Shell Oil alleging that, by unifying gas prices under the two brands, the companies had violated the per se rule against price fixing long recognized under the Sherman Act. Granting summary judgment, the District Court determined that the rule of reason, rather than a per se rule, governs the claim, and that, by eschewing rule of reason analysis, the service station owners had failed to raise a triable issue of fact. The Ninth Circuit reversed, characterizing the position of Texaco and Shell as a request for an exception to the per se price-fixing prohibition, and rejecting that request.

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that its final guidance on Internet applicants will apply to hiring decisions made by federal contractors on or after February 6, 2006. This is the first written standard defining “Internet applicant” in the context of enforcing the equal employment opportunity and affirmative action requirements for federal contractors under Executive Order 11246. Covered employers should note that the definition of Internet Applicant applies to any applicant who submits an “expression of interest” for a position where electronic data technologies are used to fill that particular position. In other words, if an employer uses electronic technologies in the recruiting process for a position, an applicant who submits a traditional expression of interest such as a paper resume is still considered an Internet Applicant. Conversely, if no electronic technologies are used in the recruiting process, the existing non-Internet rules for tracking applicants applies.

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