November and December

Once upon a time, courts granted injunctions against infringers as a matter of right. With the Supreme Court’s landmark decision in eBay Inc. v. MercExchange LLC, many commentators predicted the demise of permanent injunctions. But has the Court’s decision really amounted to the wholesale loss of this valuable right? The weight of cases after eBay suggests that this fear has amounted to more of a fairy tale than an actual nightmare.

The Supreme Court’s 2006 decision in the eBay case has caused courts to look more closely before issuing injunctions in patent cases. After eBay, sometimes there is a finding of infringement, but the court does not find sufficient facts to support the issuance of an injunction. What happens then with respect to post-verdict sales by the infringer? Many courts have been awarding controversial “ongoing royalties,” and the procedures being used in determining them have been challenged.

Sending an Internet service provider a document subpoena for e-mails sent or received by your opponent might seem reasonable, but an embarrassing, costly, and successful motion to quash might be the result. The Stored Communications Act may legally prevent the ISP from disclosing the contents of any e-mails that it possesses. How can one use the existing rules of discovery to avoid this trap?

Many businesses are often unfamiliar with the particulars of the common interest privilege and hesitant to rely upon it. Fortunately, courts have recently examined and fleshed out the contours of the common interest privilege. Companies should thus now be able to engage in collaborative business ventures knowing whether or not the privilege will protect their communications from disclosure.

Against the backdrop of dramatically increased government spending designed to address the country’s financial crisis, Congress has made amendments to the federal False Claims Act that lower the barriers to successful FCA claims by whistle-blowers and the government. Moreover, Congress and the executive branch have heightened their focus on government oversight and enforcement relating to fraud and abuse in government-funded contracts and programs.