News & Analysis as of

Extrinsic Evidence

Corning v. PPC Broadband: Technological Context Informs Claim Construction; Preambles Do Not

by Brinks Gilson & Lione on

In a recent PTAB ruling, Corning Gilbert, Inc. v. PPC Broadband, Inc., No. IPR2013-00342, Paper 57 (PTAB Oct. 12, 2016),[1] the PTAB reversed itself on remand from the Federal Circuit. The Corning series of decisions is...more

News from Abroad: Canada's Federal Court Questions No File Wrapper Estoppel on Claim Construction

The Supreme Court of Canada in Free World Trust v Électro Santé Inc, 2000 SCC 66 rejected the use of extrinsic documents such as file wrappers (patent prosecution histories) for claim construction, on the basis that allowing...more

Construing Markush Group Claims

by Foley & Lardner LLP on

In Multilayer Stretch Cling Film v. Berry Plastics, the Federal Circuit provided a detailed discussion of the construction of claims that use Markush group language. The decision emphasizes the closed nature of the...more

Wisconsin Supreme Court Reaffirms Four-Corners Rule for Insurers’ Duty to Defend

by Foley & Lardner LLP on

An insurer’s decision whether to defend a lawsuit against its insured can be a critical issue involving tens of thousands, if not millions, of dollars for Wisconsin companies who are sued. The Wisconsin Supreme Court recently...more

Colorado Supreme Court Limits Use of Extrinsic Evidence and Reasonable Expectations Doctrine

by Cozen O'Connor on

On Monday, the Colorado Supreme Court issued its decision in American Family Mut. Ins. Co. v. Hansen, No. 14SC99 (Colo. June 20, 2016), holding that extrinsic evidence can only be used to interpret ambiguous policy language,...more

Canons of Claim Construction to the Rescue

In Ruckus Wireless, Inc. v. Innovative Wireless Solutions, LLC, [2015-1425, 2015-1438] (May 31, 2016), the Federal Circuit affirmed the district court’s claim construction and resulting judgment of non-infringement. At...more

Consistent Usage and Disclaimer in Intrinsic Record Trump Anything in Extrinsic Record

In David Netzer Consulting Engineer LLC, v. Shell Oil Company, [2015-2086] (May 27, 2016), the Federal Circuit affirmed summary judgment of non-infringement of U.S. Patent 6,677,496 on a process for the coproduction of...more

Intellectual Property Newsletter - January/February 2016

by King & Spalding on

2015 U.S. Trademark Developments Every Food and Beverage Lawyer Should Know - In 2015, U.S. courts provided trademark practitioners with several issues to discuss and debate. Identified and summarized below are the...more

Another Post-Tackett Ruling Denying Retiree Health Benefits

A district court in West Virginia recently held that retirees were not entitled to lifetime health benefits under the clear and unambiguous language of the relevant collective bargaining agreements. Shortly after Constellium...more

What are the Rules on Indefiniteness of a Patent Specification under 35 USC § 112?

While the question was answered by the Supreme Court in Nautilus, Inc. v. Biosig Instruments, 134 S. Ct. 2120 (2014), the Federal Circuit, in The Dow Chemical Company v. Nova Chemicals Corporation (Canada), (2014-1431,...more

White & Case ECB News – Issue 2, 2015: Understanding Your "Boilerplate"

by White & Case LLP on

Whilst most people associate boilerplates with mundane provisions in the back of award agreements and stock incentive plans, their importance to employers in providing security and flexibility when setting up plans should not...more

Court Holds Extrinsic Evidence Was Inadmissible

by Allen Matkins on

As generally understood, the parol evidence rule prohibits the introduction of extrinsic evidence to alter, vary or add to the terms of an integrated agreement. “Parol” is derived from the French word, “parole” meaning...more

Tenth Circuit: Legal Characterization of Facts in Underlying Complaint Insufficient to Trigger the Duty to Defend

by Wilson Elser on

On July 30, 2015, the Tenth Circuit affirmed that an insurer that issued a commercial general liability policy with an auto exclusion for bodily injury arising out of the loading and unloading of an auto did not have a duty...more

Teva Review Standard Controls Lighting Ballast on Remand - Lighting Ballast Control LLC v. Philips Electronics North America Corp.

by McDermott Will & Emery on

In yet another post-Teva claim construction case (see discussion of Teva v. Sandoz, Shire Development v. Watson Pharmaceuticals, Kaneka Corp. v. Xiamen Kingdomway Grp. and TomTom, Inc. v. Adolph cases (this edition) the U.S....more

Real World: An Update from Dechert's London Finance and Real Estate Group - July 2015: Enforcement of Restrictive Covenants Under...

by Dechert LLP on

Under a building scheme, where restrictive covenants are imposed on the original plot owners within a development for the mutual benefit of the plots, subsequent owners may enforce those covenants against each other. In...more

Now is the time to reevaluate commercial sales contracts that incorporate other documents by reference

by McAfee & Taft on

Legal documents of all kinds – everything from wills and trusts to commercial sales agreements – often reference other documents. This “incorporation by reference” comes with certain risks. Historically, courts looked beyond...more

New Jersey State Court Rules Damage Caused by Superstorm Sandy Not Subject to Flood Sublimit

In a decisive victory for policyholders, Judge Thomas Vena of the Essex County Superior Court in New Jersey ruled that significant damages incurred by Public Service Enterprise Group Inc. (“PSEG”) as a result of storm surge...more

Supreme Court's Decision in Teva Does Not Require Federal Circuit to Review Immaterial or Improper Fact-Finding under a Clear...

After an appeal to the Federal Circuit, Defendant Arthrex, Inc. ("Arthrex") filed a motion to reopen the judgment under FRCP 60(b). Arthrex premised its motion on the argument that the judgment should be reopened in light of...more

Federal Circuit’s Initial Reaction to Teva

by Brooks Kushman P.C. on

In the nearly three months since the U.S. Supreme Court ruled that subsidiary factual findings in claim construction proceedings must be reviewed for clear error, the U.S. Court of Appeals for the Federal Circuit has decided...more

Intellectual Property Legal News: Volume 2, Number 1

by Dickinson Wright on

TEVA PHARMACEUTICALS: IS IT TIME TO RETHINK HOW YOU WILL ARGUE CLAIM CONSTRUCTION? The United States Supreme Court decided in Teva Pharmaceuticals USA Inc. v. Sandoz Inc. that the Federal Circuit must review all...more

The Supreme Court's New Standard of Appellate Review for Claim Construction

by White & Case LLP on

On January 20, 2015, the United States Supreme Court redefined the standard of appellate review for claim construction. In Teva Pharm. USA, Inc. v. Sandoz, Inc., the Supreme Court vacated well-established Federal Circuit...more

Practice Considerations Post Teva v. Sandoz

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., No. 13-854, slip op. 574 U.S. __ (2015), the U.S. Supreme Court ruled that underlying factual issues resolved while formally construing a disputed patent claim term at the...more

Employee Benefits Developments - January 2015

by Hodgson Russ LLP on

IRS Publishes FAQs Regarding Rollovers of After-Tax Contributions. In the December 2014 issue of Employee Benefits Developments, we reported on IRS Notice 2014-54, which allows participants to direct and allocate after-tax...more

Peeking Around Four Corners: Wisconsin Insurers Have Found a Way to Use Extrinsic Evidence to Excuse the Defense of Pending Claims

by Carlton Fields on

It is a truism that a liability insurer’s duty to defend is extremely broad—especially in states that apply the “four corners rule.” Under that rule, the insurer has a duty to defend whenever the underlying complaint alleges...more

Contra Proferentem in New York: A Last Resort for Resolving Ambiguity in Coverage Disputes

by Robinson & Cole LLP on

In insurance litigation, insureds often argue that, if a provision in an insurance policy is found to be ambiguous, that ambiguity should be resolved in favor of the insured, and against the insurer that drafted the contract,...more

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