The Clients’ Waiver of Their Rights Under Regulation BI of the Securities and Exchange Commission

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses the Securities and Exchange Commission (SEC)’s Regulation Best Interest (BI), which imposes on broker-dealers a commitment to act in the best interests of their clients. Specifically, Frankel addresses the SEC’s treatment of client waivers of the Regulation BI, which goes even further than general fiduciary law to prohibit any waiver of the broker-dealer’s conflicting interests.

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Arctic Cat Inc. v. Bombardier Recreational Products, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1080

Opinion Date: February 19, 2020

Judge: Alan David Lourie

Areas of Law: Intellectual Property, Patents

Arctic’s patents, directed to personal watercraft (PWC) steering systems, issued in 2004 and 2003, after Arctic stopped selling PWCs. In 2002, Arctic entered into a license agreement with Honda that expressly stated that Honda had no marking obligations. Honda began making and selling unmarked PWCs. Arctic asserted that Honda stopped selling unmarked products in 2013. Bombardier claimed that Honda continued to sell PWCs under the Arctic license until 2018. In 2014, Arctic sued Bombardier for infringement. The court held that Bombardier bore the burden of proving that Honda’s PWCs practiced the asserted claims and denied Bombardier’s motion to limit potential damages because of Honda’s sales of unmarked products. A jury awarded Arctic a royalty to begin in 2008 and found that Bombardier had willfully infringed the asserted claims. The Federal Circuit affirmed as to willfulness but vacated in part. Once an alleged infringer identifies products that it believes are unmarked patented articles subject to the 35 U.S.C. 287 notice requirements, the patentee bears the burden of proving that the products do not practice the claimed invention. On remand, Arctic conceded that it could not show that the Honda PWCs do not practice the asserted claims. The Federal Circuit affirmed summary judgment in favor of Bombardier. Section 287 continues to limit damages after a patentee or licensee ceases sales of unmarked products; willful infringement does not establish actual notice under section 287.