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Intellectual Property Litigation
In a perfect world, your work would be over once you secured the rights to your intellectual property. Unfortunately, as Jomini said, "As long as there is man, there will be war." As long as there are competitors, there will be accusations of infringement and lawsuits. As soon as you discover that someone may be violating your intellectual property rights, you should seek assistance from intellectual property counsel. Rights can be lost if you do not act quickly. By meeting with counsel, you can determine whether it is imperative to take immediate action. Further, intellectual property counsel can assist you in making sure that your actions help, not harm, your case.
The "overture" to most intellectual property confrontations lies in the cease and desist letter. This is a letter informing your competitor that it is violating your rights and demanding that it stop the offending activity. Such a letter is best drafted and signed by intellectual property counsel. Further, intellectual property counsel can ensure that the cease and desist letter is the appropriate action to take at that time. Prior to sending any cease and desist letter, the accusing party needs to investigate the accused party's activities to ensure that the accused party does not have rights superior to that of the accusing party. For example, the accusing party would find it uncomfortable to learn after sending a trademark cease and desist letter that the accused party actually began using the trademark long before the accusing party.
The cease and desist letter must be written with the recognition that it will be one of the most critical documents in any litigation. Therefore, it is important that it be written correctly and professionally. In certain cases, a cease and desist letter may allow the accused party to file what is known as a declaratory judgment action against its accuser in the accused party's home state, which may be inconvenient for the accuser. Many acts of intellectual property infringement end with the cease and desist letter.
Upon receiving a cease and desist letter, the accused party should immediately contact its intellectual property counsel. The cease and desist letter usually has a date by which a response is required. The time before that deadline can be used to investigate the allegations or, potentially, to file a declaratory judgment action in a court convenient to the accused party. Further, the time can used by the accused party to determine whether it makes good business sense simply to stop the accused conduct, whether the conduct is wrong or not.
The "first act" of the intellectual property lawsuit is the filing of the complaint. The accusing party or plaintiff needs to meets with counsel to make sure that the plaintiff has grounds to file suit. While it is very easy to file a lawsuit, extrication is very difficult. Therefore, the plaintiff needs to make certain that the suit is winnable. Proper investigation prior to filing suit will save money and stress later.
After being served with a complaint, a defendant should immediately seek intellectual property counsel. Defendants usually have twenty to thirty days to respond to the complaint. This time should be spent performing fact finding to determine the merits of the case and to determine whether settlement makes sense. Also, the defendant needs time with counsel to consider other strategies, for example, whether a counterclaim or motion to dismiss is appropriate. Valuable time and opportunities are lost when a defendant sits on a complaint.
Once the complaint and answer have been filed and served, the battle is joined. Investigation must be done and the facts of the case need to be marshaled.
The "second act" of litigation is discovery. This is the part of the litigation wherein the parties pose written questions, called interrogatories, to one another, seek documents, and take depositions. This stage of litigation can be very expensive and very educational. It also requires the investment of a considerable amount of time by the employees of the parties. The second act usually culminates in motions for summary judgment, in which one or both of the parties ask the court to enter a judgment based on the facts of the case which are uncontested.
The "third act" is the trial itself, that thing that makes legal movies interesting unless you are a party to the trial. The trial is where the judge and/or the jury decides the case. In at least 93% of lawsuits, either the parties or the court terminate the litigation before trial.
The "final act" is the appeal. Generally, a court of appeals will reverse a judgment only if the law was incorrectly applied in the lower court.
Any party contemplating litigation should remember that a suit requires a large investment of time and effort, as well as money. Instead of developing new products or selling existing ones, corporate officers and employees spend their time preparing the litigation and finding facts. Therefore, before someone goes to the intellectual property litigation play, that someone should be prepared for the consequences of watching all of the acts unfold. |
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If you have questions about intellectual property law,
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