Indiana Continuing Legal Education Forum – ICLEF

By Jill Starbuck, Pellegrino & Associates

Patents prove extremely valuable for pharmaceutical companies. In fact, without a patent, Pfizer likely would not have enjoyed billions in revenue for Lipitor. (The Lipitor patent was the most profitable patent in the world to date.) Patents provide exclusive rights for a fixed period to the inventor or the inventor’s assignee, giving inventors the ability to exclude others from the market. As a result, drug companies can charge a premium to make up for the time and money spent on researching and developing a new drug. These companies can also receive up to treble damages for infringement when a competitor is found willfully infringing.

However, patents have expiration dates. Thus, the pharmaceutical industry continues to face challenges as patents for lucrative brand name drugs expire. These expirations force the industry to find innovative ways to remain competitive. But the pharmaceutical industry’s troubles do not end there. Along with patent expirations, patent rejections make business complicated for pharmaceutical companies. Unfortunately, these rejections continue to make headlines. For instance, India recently rejected a patent application for the Novartis cancer drug Glivec, and the United States ruled the AstraZeneca asthma drug Pulmicort Respules patent invalid.

Rejected patents have a significant financial and strategic impact on patent owners. Patents are expensive to acquire, costing thousands of dollars to prosecute, and these costs rise dramatically if an application includes foreign jurisdictions. Therefore, when a patent is rejected, an applicant loses money invested on legal and patent-related fees in pursuing the patent. Also, when a patent is rejected, the owner (pharmaceutical company) faces fierce competition from companies that specialize in making and selling generic drugs at a cheaper rate than the original versions. Generic drug makers can easily make generic versions since patents disclose specifics regarding the innovation (drug). Therefore, generic drug makers essentially have the formula in front of them. Rejected patents make it easier for generic drug companies to get to the market faster because they don’t have to wait for a patent to expire.

Compared to expired patents, rejected patents cause a much larger blow to pharma companies. While expired patents create challenges of their own, companies at least enjoy the benefits of those patents for a certain length of time. Therefore, they can try to prepare themselves for the consequences of an approaching expiration date. For rejected patents, pharma companies immediately lose invaluable time, money, and competitive advantages. However, countries that reject patents may suffer future consequences themselves. For instance, pharmaceutical companies may not be willing to offer drugs in the future or invest in resources on research and development in those countries. This can create a disadvantage for those countries and their citizens when innovation becomes nonexistent. Without innovation, these countries won’t have the ability to provide better medication or combat specific diseases, which decreases the overall quality of life for the citizens of those countries.

Without patents, drug companies cannot maintain a sustainable competitive advantage over other companies, and they have no incentive to develop breakthrough treatments. Thus, they may be less likely to invest in major R&D projects that could make the difference for individuals suffering from medical conditions that have limited or no treatment currently available. Patents are key to providing companies with the appropriate rights when developing new and revolutionary treatments and technology.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Case: Phillip J. Troyer v. Tracy L. Troyer
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD:
Trial court erred when its final Decree retroactively modified child support obligations of its provisional order without any petition to modify the provisional order on file.

FACTS AND PROCEDURAL HISTORY:
Father and Mother married in 1993, and had Child in 2000. In May of 2011, Mother filed a petition for dissolution of marriage. Two months later, the trial court entered its Provisional Order setting forth various rights and obligations of the parties, including that Father pay child support to Mother of $53 per week and that Mother provide health insurance coverage for Child. Neither party subsequently filed any petition to modify these provisional obligations.

In June, 2012, following nearly four days of final hearings, the trial court issued its Decree. The Decree increased Father’s child support obligation to $155 per week, retroactive to approximately 5 months before the Decree was issued. The Decree also modified the “six percent rule” obligations related to Child’s uninsured and deductible medical expenses, also retroactive to the same date. Father appealed.

The Indiana Court of Appeals reviewed Ind. Code 31-15-4-14, which provides that a provisional order terminates by operation of law upon the entry of a final decree. Indiana statute further provides that, “[t]he terms of a provisional order may be revoked or modified before the final decree on a showing of the facts appropriate to revocation or modification.” Ind. Code 31-15-4-15. Given that neither of the parties requested a modification of the provisional order – much less offered a showing of facts in support of doing so – it was error for the trial court to modify the provisional order retroactively.

The matter was remanded to the trial court to amend its Decree accordingly.

To view the text of this opinion in its entirety, click here: Phillip J. Troyer v. Tracy L. Troyer

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The Indiana Family Law Update is a free service provided by Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

By Jill Starbuck, Pellegrino & Associates

For many investors, buying stocks seems like a science of its own. So many elements have to be considered when deciding which stocks to invest in. Some of the common elements that investors consider include a company’s earnings and dividends, the type of products offered, the state of the current market, and the price-to-book ratio. For instance, is a new product or an essential one the best investment? Is there a recession or is the market rising? Does a long-term or a short-term investment make sense? After deciding which stocks to purchase, the investor’s task is not over. Investors should analyze how the market is doing to view which products and services are consistently thriving. Based on the results, investors should re-evaluate their investments occasionally to see if they’d still purchase a particular stock after some time has lapsed. In other words, does the investment still make sense years after the initial purchase?

One important element that investors may not realize is the state of a company’s patent portfolio. Companies with large patent portfolios tend to thrive better in the market than their competitors. Patents give companies the ability to stop competitors from selling similar inventions in the market. They also give companies the ability to price products higher than their competitors, positioning them favorably in the market. Furthermore, patents protect them in the event of a lawsuit and can arm them when necessary to stop others from infringing on their products. Patents are also important for start-up companies that are looking for investors to fund their ideas. Since start-up companies are new to the market, investors like to know what they paying for. Therefore, it is ideal for start-up companies to invest in patent valuations so they can provide some indication to investors of what a patent is worth.

While understanding the size of a patent portfolio is important, it is also important for investors to analyze those portfolios to gain insight on individual patents. For instance, are the patents close to expiring? If so, this can put pressure on a company’s market stance. The life of a patent doesn’t last forever, which means that a company will have to compensate when a patent is close to expiration. How will the company make up for the expiration? Does the company have new inventions in place to make up for the expiration? For instance, Pfizer and Lilly stocks plummeted when patents expired for Lipitor, Zyprexa, and other drugs. This left the door wide open for generic counterparts to take the place of those drugs at a lower price. While Pfizer and Lilly have rebounded, they’ve had to compensate in other ways – like cost cutting. They still had to pay a price. Investors must take such instances into consideration to protect their investments.

As you can see, investors can learn a lot about the potential success of a company in the market based on its patent portfolio. Patent portfolios give tremendous insight into a company’s marketability, future potential, and ability to compete. With an increased focus on intellectual property, patents are becoming increasingly important to any successful business. Even big name companies like Google, Apple, and others have purchased large amounts of patents in the last few years to strengthen their portfolios and market position. Therefore, when investors analyze a company’s patent portfolio, they have a good grasp on where they stand with their investments.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

The information provided on this blog is provided for informational purposes only and should not be used as a substitute for professional advice. ICLEF assumes no liability for the content of this blog.

Dear Bell:

I am a famous actress, who would like to keep my identity confidential. Over the past week, my husband was arrested for DUI in Atlanta. While he was being arrested, I was angry and I hung my head out of the car window and told the police officer some things I am ashamed of. Specifically, I told the officer that he was going to be on national news, that I didn’t believe he was a real police officer and that he was about to “find out who I am.” He told me to “sit on (my) butt and be quiet.”  I should have listened.

Is there anything you can say to make me feel better?

Sincerely,

Anonymous Actress in Atlanta

Dear Ms. Witherspoon:

Don’t be ashamed. Judges across the country do this all the time.

For example, in In re Richardson, 760 So.2d 932 (Fla. 2000), a Florida judge, after his arrest for attempting to solicit an undercover police officer for sexual favors, repeatedly told the officer that he was a judge and that his campaign had been run by the president of the local police association. In the Matter of Collester, 599 A.2d 1275 (N.J. 1992), a New Jersey judge, during his arrest for DUI, lied to the police officer and told him he was on his way to the courthouse for an emergency. In yet another traffic stop of a judge, the Illinois Supreme Court Chief Justice avoided a speeding ticket by producing judicial identification credentials instead of a driver’s license. Similar to you, the Chief Justice asked the police officer “Don’t you know who I am?” In re Heiple, No. 97-CC-1 (Cts. Commn of Illinois, Apr. 30, 1997).

In re Cofield, is a case that should make you feel better. In that case, a Connecticut judge, while driving under the influence, struck a parked state police cruiser, while the state trooper was in the vehicle. The judge had a blood alcohol level of .16%. During her arrest processing, the judge called the arresting officer an “a**hole” and threatened to “kick [his] ass.” She called a female police officer “little girl” and referred to the arresting officer and the female officer as “Ken and Barbie.” All the while, she insisted on being addressed as “Judge.” See In re Cofield, Memorandum of Decision (Connecticut Judicial Review Council February 27, 2009)

So at least you didn’t crash into the cop, threaten to physically harm him or mock him by giving him the name of a fluffy, preppy, soulless kid’s doll.  Feel better yet? These judges all got disciplined and their livelihoods were affected. You, on the other hand, will still make millions of dollars making movies. If they haven’t kicked Robert Downing, Jr. out of the club yet, you will be fine. Now do you feel better?

So here is what we can take from all of this:

1. Police officers don’t care who celebrities are, who judges are and they really won’t care who life coaches are.  In Indianapolis, we unfortunately had to learn again this weekend that they don’t care who police officers are either.

2. If you are ever in this situation again, sit on your butt and be quiet – even if it is your spouse on the receiving end of handcuffs.

3. But if you have an uncontrollable urge to speak, simply state “Mr. (or Ms.) Officer, I won’t bother to tell you who I am because you are all powerful and in charge. I will just sit on my butt and be quiet.” And then whisper to yourself very quietly: “And I may have my lawyer complain about your conduct sometime down the road.  Thank you for time and consideration.”

Hope this helps.

Sincerely,

Bell
Amateur Life Coach

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Dear Bell:

That’s it. I am out of here. They can take this job and shove it. I have worked at this firm for 5 years and I still can’t get any R-E-S-P-E-C-T. 

Now that I have made reference to the music of both Johnny Paycheck and Aretha Franklin in one paragraph, can you tell me which clients I can take with me?

Sincerely,

Resigning in Roachdale

Dear Ms. Resigning:

A client has the ultimate right to select the counsel of his or her choice. Therefore, the real question isn’t which clients you can take, but which clients can you solicit before you leave.

Under Rule 7.3, you can solicit professional employment from a prospective client if you have a prior professional relationship with the client. In most cases, this will mean that you can solicit the clients with whom you have had direct contact. If you did not have direct contact with the client, but worked on the case, you will likely not have had sufficient contact to allow you to directly solicit the client.

Listen. “Breaking Up is Hard to Do.” (That was a reference to the music of Neil Sedaka.) For more info about lawyer breakups, please refer to the ABA’s Formal Opinion 99-414 entitled “Ethical Obligations When a Lawyer Changes Firms.” 

Hope this helps.

Sincerely,

Bell
Amateur Life Coach

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James focuses his practice in the areas of criminal defense, attorneys discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. As of January 2013, he began serving as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN