Patent Litigation

A patent can be infringed either literally or under the doctrine of equivalents. First as a matter of law, a court must construe and interpret a patent's claims to establish their meaning and scope.  In literal infringement, the accused infringing device or process must contain every limitation of the asserted claim.  Each claim of a patent is considered separately and not all claims of a patent need to be infringed to establish infringement.  Under the doctrine of equivalents, if a device performs substantially the same overall function in substantially the same way to obtain substantially the same result as the claimed invention, the infringement may be found even if the device does not literally infringe each element of a patent claim.  The difference between literal infringement and the doctrine of equivalents is that an accused device that does not literally infringe a claim may be found to infringe if there are only "insubstantial differences" between the claimed element and the equivalent element.  The statute of limitations in patent infringement actions is six years and applies only to actions for damages.  Damages available for patent infringement include lost profits, established royalty or reasonable royalty and in some cases attorneys' fees and treble damages.

Trademark Litigation

The test for trademark infringement is whether the accused infringing mark is likely to cause confusion, or cause mistake, or to deceive.   The analysis of likelihood of confusion is more than just a side by side comparison of the trademarks.  Rather the trademarks must be considered in the context in which the goods are sold, including the ordinary care that a consumer uses in purchasing particular types of goods.  Actual confusion or deception of purchasers is not essential to trademark infringement.  The owner of a federally registered trademark has the option of its actual damages for the infringement, or seeking an accounting of an infringer's profits.  Actual damages includes the loss of sales due to actual confusion, damage to the trademark owner's business good will, loss of income resulting from a reduction in the price of goods due to infringing competition, expenses, and loss of reasonable royalty that would have accrued from licensing the trademark.  In some cases, such as intentional or deliberate infringement, attorneys' fees are recoverable as damages.

Copyright protection exists regardless of whether the copyright is registered.  However, a copyright registration is a prerequisite for filing a copyright infringement action based on a work of US origin.  Registration is also a prerequisite to recovery of statutory damages and attorney's fees in an infringement action.  Registration further provides prima facie evidence  of ownership and validity of the copyright.  A copyright does not grant the right to exclude others from use of an idea.  Copyright protects only a particular embodiment of an idea.  Therefore, if someone independently creates something that is similar, or  even identical to, the copyrighted work, no infringement exists.  Copyright infringement requires actual copying.  A copyright owner is entitled to preliminary and permanent injunctions to stop an infringement.  The court also may order the destruction of the infringing articles, as well as the plates, molds, masters, negatives, etc. used to make the infringing articles.  A copyright owner is entitled to recover any actual damages as well as any profits made by the copyright infringer.  The copyright statute also allows statutory damages, which are determined by the court, and are limited to between $500 and $20,000 unless the infringement was willful.  For willful infringement the court may award up to $100,000 in statutory damages.  The copyright owner must select between actual and statutory damages and cannot collect both.  Attorney's fees may also be recoverable as part of costs in a copyright  infringement litigation.