Raising the Stakes in Copyright Litigation: The Availability of Punitive Damages
December 30, 2004
The threat of enhanced damages, particularly in the hands of a jury, can have a considerable effect influencing the strategic conduct of litigation. Assuming some merit to a claim — at least sufficient to withstand summary judgment — the possibility of a verdict doubled or trebled or otherwise multiplied to deter or punish perceived willful, malicious conduct, perhaps representing many times the plaintiff's actual damages or the defendants' profits, can indeed be something of a gun to the head. To some plaintiffs seeking to vindicate a perceived wrong, the prospect of punitive damages can, of course also be something akin to the brass ring, adding extra incentive spurring pursuit of a verdict to the very end, even in a case that might otherwise settle.
Effectively Using Partial Summary Judgment Motions in Patent Cases
December 30, 2004
While not fully disposing of a case, partial summary judgment motions — even when denied — may effectively limit the scope of issues for trial. Knowing how the contours of the applicable federal rule, namely, Federal Rule of Civil Procedure 56, apply in the patent arena can be especially advantageous in complex patent matters involving multiple legal and factual issues. There are two particularly worthwhile topics for patent cases: first, the extent to which the courts differ over what is appropriate for decision upon a motion for partial summary judgment; and second, the requirements for "establishing" facts for the purposes of trial, even when a partial summary judgment motion is denied.
Enhancing Your Firm's Web Presence
December 27, 2004
Your law firm's Web site design has remained static for years. While it may be functional, it's not generating the traffic you originally envisioned, it's not interactive and the overall design is looking a tad dated. You may also not have anyone in-house who can devote the requisite time and effort needed to make the firm's site a productive new business and practice development 24/7/365 marketing tool. <br>Many law firms still don't understand that a poorly designed Web site can damage the firm's credibility and impair its image. So what's the solution? Seek the services of a Web-crafting firm that will not just be a vendor, but a Web partner and architectural strategist.
The Strategy Toolbox
December 02, 2004
Researchers and technology managers may not deal with IP every day like IP professionals do, but they are still exposed to all sorts of patent strategy tools, especially when they are attempting to develop a patent strategy for a business. The advertisements for these tools typically imply that life would be so much simpler if only they used the vendor's latest and greatest tool. Many of these tools are very useful; however, most tools also have limitations. Having a framework from which to evaluate these tools is therefore helpful to researchers and managers.
Five Reasons to Do a Trademark Audit
November 30, 2004
While a company's brands are among its most critical and valuable business assets, too little attention is usually devoted to identifying, developing, protecting and exploiting those assets. Gaps in trademark asset protection are often not discovered until a company seeks to enforce or is forced to defend its brands and encounters obstacles that could have been avoided.
IP News
November 30, 2004
Highlights of the latest intellectual property news and cases from around the country.
Tips for Effective Patent Application Drafting and Patent Prosecution
November 30, 2004
By now, patent attorneys who do a fair amount of patent application drafting and patent prosecution should be well versed in the fairly recent PTO rule changes dealing with various aspects of patent prosecution. Rather than discuss those rule changes, this article discusses 10 tips for better patent application drafting and patent prosecution. The first two tips deal with patent application drafting, the next four tips deal with prosecution of a patent application, the next three tips deal with things to do after receiving a notice of allowance, and the last tip deals with all stages of patent prosecution.
Tangential Equivalents: Recent Case Confirms There Is Life After Festo
November 30, 2004
On Oct. 4, 2004, the Federal Circuit rendered its opinion in <i>Insituform Techs., Inc. v. Cat Contracting, Inc.</i> ("<i>Insituform IV</i>"), 385 F.3d 1360 (Fed. Cir. 2004). This opinion is the first post-<i>Festo</i> Federal Circuit opinion that finds a successful rebuttal of the <i>Festo</i> presumption (<i>eg</i>, the presumption of the surrender of infringement under the doctrine of equivalents due to prosecution history estoppel) based on the "tangential relationship" prong of <i>Festo</i>. This case seems to set a fairly low bar for the rebuttal of the presumption. This is a significant development given the Federal Circuit's apparent desire to restrict the doctrine of equivalents (as reflected in its initial <i>Festo</i> ruling that was reversed by the Supreme Court, as well as by the tenor of the post-reversal <i>Festo</i> opinion).
Taxing the Patent Laws
November 30, 2004
This past October, Rep. Howard Berman (D. Calif.) introduced the Patent Quality Assistance Act of 2004 (H.R. 5299, the "PQA Act"). The PQA Act seeks to implement many of the recommendations of the much-publicized FTC (October 2003) and National Research Council (April 2004) reports. The bill has been referred to the Judiciary Committee, which is not expected to act on it before the end of the 108th Congress. Rep. Berman introduced the bill at the end of this Congress, however, "with the intent of framing the debate going into the 109th Congress." 150 Cong. Rec. 1935.
