Arizona Supreme Court Limits Preemptive Sweep of Arizona’s Trade Secrets Act

The Arizona Supreme Court decided yesterday in Orca Communications Unlimited v. Noder that Arizona’s version of the Uniform Trade Secrets Act, A.R.S. § 44-401 et seq., does not preempt common law tort claims for misappropriation of confidential information that does not rise to the level of a statutory “trade secret.” The majority of jurisdictions deciding the preemption issue have held that the uniform act preempts such claims.  See, e.g., Mortgage Specialists, Inc. v. Davey, 904 A.2d 652, 664 (N.H. 2006) (interpreting New Hampshire Uniform Trade Secrets Act). But the Arizona Supreme Court observed that the Legislature had not adopted the uniform act’s uniformity   Read More »

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Federal Circuit Expressly Allows Trial Courts to Stay Damages Until After an Appeal in a Patent Infringement Case

Patent litigation tends to be protracted and expensive. In the past, such litigation has continued to a conclusion before any appeal was taken to the Court of Appeals for the Federal Circuit.  In some instances, a ruling that the trial court made early in the case on claim construction, or a ruling on liability, might be reversed on appeal, and the case would have to be remanded back to the trial court to repeat the trial on damages and other issues that depended upon the earlier ruling that was reversed on appeal. On June 14, 2013, the Federal Circuit issued   Read More »

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Supreme Court Declines to Issue Broad Guidance on Self-Replicating Articles

On May 13, 2013, the Supreme Court of the United States issued a unanimous opinion affirming the Southern District of Indiana and Federal Circuit in Bowman v. Monsanto Co., holding that the exhaustion doctrine did not permit a farmer to harvest soybeans with patented genetic resistance to pesticides for seed. The opinion did not, however, contain broader guidance for application of the exhaustion doctrine in the context of other self-replicating patented articles. The facts before the Court were straightforward: Monsanto invented a generic modification for soybean plants that makes them resistant to the active ingredient in many herbicides (such as   Read More »

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Significant Changes in Patent Litigation May Be on the Horizon

The Federal Circuit recently decided to have the entire court consider en banc whether the court should overrule its longstanding rule that patent claim construction is a purely legal question which is reviewed de novo on appeal. This development may foreshadow significant changes in patent litigation practice. A brief historical discussion will highlight the potential impact if the Federal Circuit changes the de novo standard of review for questions of patent claim construction. In 1996, the Supreme Court held that the construction of patent claims, including terms of art within the claims, was exclusively within the province of the court   Read More »

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Supreme Court Addresses Covenants Not To Sue In Already, LLC v. Nike, Inc.

On January 9, 2013, in Already LLC v. Nike, Inc., No. 11-982, 2013 WL 85300 (U.S. Jan. 9, 2013), the U.S. Supreme Court held that a broadly-crafted covenant not to enforce a trademark against a competitor’s existing products and any future “colorable imitations” moots the competitor’s counterclaim to have the trademark declared invalid. Noting that Nike, Inc.’s (“Nike’s”) covenant not to sue was unconditional and irrevocable, covered not only current and previous shoe designs but also any future “colorable imitations,” and extended to Already, LLC (“Already”), its distributors, and its customers, the Court ruled that the covenant was sufficiently broad   Read More »

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