Introduction to Intellectual Property Litigation
The importance of intellectual property and the prominent role it plays in providing its owner with competitive advantages in the marketplace invariably compel an owner to vigilantly enforce its intellectual property rights.
U.S. Patent, Trademark and Copyright disputes are litigated for the most part in Federal Court. And while U.S. Intellectual Property laws themselves are decidedly pro-plaintiff, the Federal Court legal system and the rules and procedures applicable to Intellectual Property litigation are complex, formal, rigid, and unforgiving. Add to that the costs involved in Federal Court litigation, and it is certainly an arena where, if one is to confidently tread, one must be represented by ably prepared and experienced counsel.
An Intellectual Property owner that brings an action to enforce its Intellectual Property against Infringers can expect the following:
Injunctive Relief
As an intellectual property owner whose work is being infringed, you have the ability to seek immediate injunctive relief to stop the alleged infringement while the underlying infringement lawsuit progresses. This is a common approach as infringement litigation typically takes years to resolve and if infringement were allowed to continue during this time, the I.P. owner would continue to suffer damages.
A court will grant such temporary or preliminary injunctive relief upon a showing by the I.P. owner that it is being damaged and will continue to be damaged by the defendant’s actions absent an injunction and that the I.P. owner is likely to ultimately prevail in the underlying infringement trial. Any such preliminary injunctive relief would be made permanent upon Plaintiff prevailing in the underlying infringement lawsuit.
If a temporary or preliminary injunction is issued, the Court may require that the plaintiff post a bond with the court in an amount to offset any damages that the defendant may experience by the injunction if ultimately the defendant is found not to be infringing. It is also possible to request -and for the court to order- that no bond be posted.
Litigation Timeline
Intellectual Property litigation has various phases. In the initial, pre-litigation phase, your counsel is required to conduct sufficient investigation of your claims to reasonably ensure that the allegations and causes of action that you will be asserting in your infringement complaint have a reasonable basis in law and fact.
After the filing of the Complaint and Defendant’s Answer, the Court will issue a scheduling order that will set forth the trial date as well as various deadlines for the litigants to provide required pre-trial disclosures, conduct pre-trail discovery, employ experts and provide expert witness reports, and the deadlines to file various available pre-trial motions.
The Court’s scheduling order is generally hard to change. A trial date will likely be scheduled between 18-24 months from the date of the filing of your Complaint. A Court’s calendar is a busy one and a Judge is just not in a position to agree to any request to change the scheduling order even if both parties wish to do so. Therefore, the deadlines set forth in it are considered just that.
Accordingly, it is important during litigation, especially as a plaintiff, to not waste any time prosecuting your case. You must immediately begin conducting discovery to gather the evidence you will need to prove your case. It is common during litigation that discovery disputes arise and if you are forced to seek discovery orders from the Court, you will be faced with time consuming motion practice that eats away at the time you have available to prepare your case for trial. That 18-24 month timeline at first seems to provide plenty of cushion, but as with time in general, it goes by faster than you think. Best to get a quick and early start. Such a tactic also places the defendant on notice that you are confident in your case and that you will be diligently prosecuting it.
Expert Witnesses
Expert witnesses are common in Intellectual Property infringement litigation. An expert is a witness hired by a party to provide an opinion on an aspect of the litigation that a party has a burden to prove. An expert witness is different from a fact witness because an expert does not have any first hand knowledge about any percipient facts in the case. Instead, a qualified expert will be allowed to testify to matters pertaining to certain elements of liability and/or damages that a plaintiff is required to establish.
For example, a Plaintiff in a trademark infringement case will hire an expert to conduct a sample survey comparing plaintiff’s and defendant’ marks and using the results to provide his/her opinion as to how and why the defendant’s mark is confusingly similar to plaintiff’s trademark. Similarly, in a copyright infringement case, an expert will be hired to deconstruct and analyze how defendant’s song contains note patterns, chord structures, and other similarly arranged musical elements that are used in Plaintiff’s song. Experts may also be used to provide a calculation of and an opinion on the proper measure and amount of damages that a plaintiff has suffered as a result of infringement.
Settlement and Trial
As with most litigation, most intellectual property lawsuits settle before trial. Courts, by virtue of their scheduling orders, onerous discovery motion procedures, and pre-trial mediation requirements, strongly encourage parties to reach settlements and compromises. Also, costs and fees associated with conducting protracted litigation are a burden to both sides. This certainly has an effect on a party’s willingness to settle.
While early settlement is sometimes possible, if a defendant is a large company and well funded, it is unlikely. Typically, a large defendant will litigate a case against a smaller plaintiff until late in discovery and after the strength of the case – from a standpoint of what a plaintiff will be able to prove- becomes clear. A defendant will very often wait until dispositive summary judgment motions against the plaintiff have been exhausted before making any serious settlement offers.
What this means is that a plaintiff must be prepared to aggressively and tenaciously litigate a case with the genuine intent that it will take the case to trial. With the added attitude that if they are able to settle the case prior to trial on favorable terms, all the better.
If a case goes to trial, both parties can expect the judge to move things along quickly. As such, key to a successful trial is: trial preparation; witness preparation; and a strong command of pre-trial motions, post-trial motions, and the rules of evidence. In other words, as set forth above: one must be represented by ably prepared and experienced counsel.
If you feel your intellectual property rights have been infringed, Contact Us to discuss how we can help.