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Surveys in Patent Infringement Litigation: The Next Frontier
Most experienced intellectual property attorneys understand the significant role surveys play in trademark infringement and other Lanham Act cases, but relatively few are likely to have considered the use of such research in patent infringement matters. That could soon change in light of the recent admission of a survey into evidence in Applera Corporation, et al. v. MJ Research, Inc., et al., No. 3:98cv1201 (D. Conn. Aug. 26, 2005). The survey evidence, which showed that 96% of the defendant's customers used its products to perform a patented process, was admitted as evidence in support of a claim of inducement to infringe. The court admitted the survey into evidence over various objections by the defendant, who had argued that the inducement claim could not be proven without the survey.
Although the survey evidence in Applera v. MJ Research was admitted as relevant to a determination of liability, the potential exists for surveys to provide evidence relevant to the determination of damages as well. Surveys could potentially provide relevant evidence on numerous aspects of patent damages assessment. For example, market demand, user preferences for the patented features, and the attractiveness of alternatives are all areas in which surveys could provide useful information in the formation of an expert opinion on patent damages.
Courts have already begun to consider the potential role of such surveys in patent infringement cases. In Advanced Medical Optics, Inc. v. Alcon, Inc. et al., C.A. No. 03-1095 (D. Del. Dec. 16, 2005), the court refused to allow testimony from a medical expert about the preferences of other surgeons because the expert had not conducted a survey about those preferences. In that same matter, the court precluded survey-related testimony because the survey did not ask respondents sufficiently precise questions about the patented feature. The fact that the court both supported the need for a survey to support certain testimony and articulated standards for what would constitute an appropriate or adequate survey indicates that the potential exists for the use of well-constructed surveys to assess damages in patent infringement litigation.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?