Intellectual Property Litigation   Philosophy and Services Vascoe Valdes LLP litigators have substantial experience in trying disputes involving intellectual property and technology rights. Our litigation and dispute practice includes trials, appeals and alternative dispute resolution proceedings, as well as matters before the U.S. Patent and Trademark Office. Our litigators also have extensive experience in obtaining and defending against the issuance of temporary restraining orders and preliminary injunctions, a specialized practice that frequently arises in intellectual property disputes. While we are prepared to litigate any dispute, our first priority is our clients short and long-term business objectives. When a dispute arises, we move quickly to analyze the merits of the dispute, the alternative mechanisms and scenarios for resolving the dispute, as well as the costs associated with each scenario. Our clients benefit from this early analysis and can better determine whether it is in their best interest to litigate the dispute or settle the dispute in a manner that better satisfies the business objectives of our clients. In addition to litigation, our litigation attorneys, and other members of Vascoe Valdes LLP, work with our clients to develop long-term strategies for exploiting and protecting their intellectual property and technology assets. These strategies may include: audits to identify, inventory and protect IP assets; campaigns to license IP assets; campaigns to acquire IP assets from third-parties; and enforcement strategies, which often include litigation on some level.   Preventing A Lawsuit Prevention is always preferable to a lawsuit. Whether you are a plaintiff or a defendant, intellectual property lawsuits can cost hundreds of thousands of dollars and divert your company resources away from their most productive use. At Vascoe Valdes LLP, we recognize that cost considerations are important in determining whether to sue and whether to defend a lawsuit. Our attorneys are highly skilled at identifying potential risks and solving problems before they result in an expensive lawsuit. Here are just some of the ways Vascoe Valdes LLP can help your company prevent unnecessary litigation: Intellectual Property Audits: Vascoe Valdes LLP can help your company identify its intellectual property and assess the most cost-effective ways to protect and manage your valuable IP assets. Risk Assessment: Vascoe Valdes LLP can quickly review your company marketing, advertising, manufacturing, and distribution methods to identify business practices that present a high risk of generating an intellectual property lawsuit. New Products and Services: Before you invest millions in a new product or service, Vascoe Valdes LLP can help your company reduce the risk of infringing the patents, copyrights, and trade secrets of competitors. Insurance Audit: Does your insurance policy cover intellectual property lawsuits? Vascoe Valdes LLP can help your company assess its insurance coverage and negotiate favorable contract provisions with carriers that will help cover the costs of defending an intellectual property lawsuit. Trademark Clearance and Registration: Obtaining a federal trademark registration provides valuable procedural advantages should your company ever become involved in a trademark dispute. Your company can save thousands of dollars by involving an Vascoe Valdes LLP attorney in the process of selecting and protecting its trademarks right from the beginning. Advertising Clearance: Many trademark disputes result from the improper use of competitors names and trademarks. Vascoe Valdes LLP can assist your company by reviewing major advertising campaigns to reduce the risk of a conflict and to ensure the continued strength and vitality of your company own marks. Internet Domain Names: Cyber-pirates and competitors often register domain names that include the trademarks of others. Vascoe Valdes LLP has extensive experience in helping its clients acquire the rights to these domain names without the need for expensive litigation. Early Copyright Registrations: Like trademark registrations, registering your company copyrighted works can provide valuable procedural advantages during litigation. These advantages can significantly reduce the cost of litigation by prompting infringers to settle during the early stages of the case. Vascoe Valdes LLP can guide your company through the process of obtaining a copyright registration. Work-for-Hire Agreements: Did you know that copyrights vest automatically in the author of a work? This rule can create serious problems with former employees and independent contractors who may claim rights to your company original materials. Vascoe Valdes LLP can help by drafting agreements that protect your company rights. Trade Secret Protection: Is your company taking adequate steps to maintain the confidentiality of its commercially sensitive information? Does your company have procedures to ensure that new employees are not bringing confidential information with them that might create a dispute with a competitor? Vascoe Valdes LLP can help you develop confidentiality and screening procedures that will significantly reduce the risk of ever becoming involved in trade secret litigation. Employee Training and Education: Intellectual property issues come up every business day, and not just upper management must deal with these issues. Vascoe Valdes LLP frequently assists clients with developing training and education programs that allow employees to identify intellectual property problems before they become a lawsuit.   Should We File? Given the costs and uncertainties associated with intellectual property litigation, the decision to file a lawsuit should not be taken lightly. A potential plaintiff should take the time to develop its litigation objectives and address numerous pre-filing issues. Litigation Objectives: In setting litigation objectives, it is necessary to understand and articulate what is at stake. For example, any potential plaintiff should address the following type of issues: Is the technology, trademark, or copyright the company crown jewel, or does it provide little competitive advantage? Who are the likely defendants? Do they have the resources to vigorously defend the action? Do the potential defendants have any counterclaims they may assert? Is there any potential to cross-license the defendant intellectual property? Is there any advantage to partnering with the potential defendant? Ultimately, a plaintiff objectives may include the following: Defending and dominating the market; Showing the market and competitors that it will protect its intellectual property; Establishing a licensing program; and Recovering monetary damages. Inevitably, these objectives will change and evolve during the course of litigation, but it is important that they are developed and articulated at the outset of the case. The plaintiff objectives will guide litigation counsel approach to effectively and efficiently attaining the stated objectives. Pre-Filing Considerations: Intellectual property litigation also raises a myriad of issues that must be addressed prior to filing suit, including: Deciding which intellectual property rights to assert; Being positive that your patent/trademark/copyright is valid; Being comfortable that infringement is apparent; Analyzing possible defenses; Analyzing possible counterclaims; Identifying and retaining the most impressive and well-respected experts in the field; Deciding whether to send a cease and desist letter before filing the complaint; Deciding where to file the lawsuit; and Selecting trial counsel (trial lawyers with intellectual property litigation experience, the ability to simplify and persuasively present complex issues, a familiarity with the court and judges, in-house litigation support resources, a willingness to manage costs, and an ability to partner with the client). While the analysis and review of these issues will vary greatly depending on the case, each of these points must be discussed prior to filing the lawsuit. If your company is faced with the prospect of intellectual property litigation, the lawyers at Vascoe Valdes LLP would be happy to meet with you to begin working through these complex issues.   What If We Are Sued Or Threatened With Litigation? Intellectual property litigation is unique. The cost, increased potential for early injunctive relief, prospect of litigating the case in a far-away forum, and the demand for large damage awards make it imperative for a company to develop a successful response strategy at an early stage. When a lawsuit has only been threatened, a company should consider the following: Does your company have insurance that might cover the costs of defense? In what jurisdictions might the threatened lawsuit be brought? Should a declaratory judgment action be filed to secure a more convenient forum? Does the potential plaintiff have the financial resources to prosecute an intellectual property infringement action? Are there any intellectual property rights owned by your company that might be asserted against the potential plaintiff? When the lawsuit has already been filed, time becomes even more critical. Your company should immediately contact experienced intellectual property litigation counsel to discuss the following issues: Where was the complaint filed? Can the lawsuit be transferred to a more convenient forum? Does the Court have personal jurisdiction over your company? Is the plaintiff seeking immediate injunctive relief? Is the plaintiff seeking damages? Is the accused product or trademark critical to your company’s success? What is known about the plaintiff? Are there any other defendants named in the lawsuit? Are there any counterclaims (breach of contract, antitrust, counter-infringement) your company can assert? After the initial time crunch, the decision-makers must take the time to formulate a litigation strategy that will best meet your company’s unique needs. Consideration of the following issues will help determine the most appropriate response: What is the potential motivation of the plaintiff or goal in filing the lawsuit? Is a negotiated settlement likely given the plaintiff apparent litigation objectives? Are there changes that can be made to the accused product or trademark that reduce the risk of infringement? Are there former employees who have critical information regarding the plaintiff allegations? Based on the answer to these and other questions, trial counsel can help your company develop a litigation strategy focused on obtaining the best outcome in the most efficient manner possible.   Cost Considerations Intellectual property lawsuits are exceedingly expensive. By way of example, statistics published by the American Intellectual Property Law Association show a growing acceptance by federal courts of attorneys fee awards that exceed $1,000,000. This figure, however, does not even come close to the total cost of an intellectual property lawsuit. Both sides often must retain industry, technical, and damages experts, and an unsuccessful defendant can face damage awards that will strain the resources of even the largest companies. Even more importantly, intellectual property lawsuits place a severe strain on a company most valuable resource its employees. The litigation will force your employees to spend thousands of hours gathering information and documents, meeting with attorneys to develop facts and plan strategy, and preparing to testify at depositions and trial. Vascoe Valdes LLP understands these costs and helps clients develop a clear litigation objective - an objective that helps in assessing the risks and benefits of litigation and maximizes the chance of obtaining a successful outcome.   The Structure Of A Lawsuit Complaint The complaint is the first shot fired in a lawsuit. It contains the plaintiff explanation of what the defendant did and why it entitles the plaintiff to relief under the law. Answer The rules of procedure only give the defendant a limited amount of time (20 days from the date of service) to file an answer. In the answer, the defendant presents its side of the story, as well as any affirmative defenses or counterclaims against the plaintiff. On occasion, the defendant will file motions challenging the courts jurisdiction or the legal sufficiency of the complaint prior to answering. Case Development and Discovery The length of a lawsuit depends on the number of parties involved, the complexity of the issues, the amount of discovery required, and the courts availability to resolve the dispute. Intellectual property lawsuits generally are more complex that other commercial litigation and can last anywhere from eighteen months to several years. The discovery process provides parties with the opportunity to develop the facts and explore the opposition case. Several tools are available, including informal witness interviews, interrogatories (written questions posed to the other side), document requests, requests for admission (written requests that the opposing party admit or deny a fact), and depositions. The complexity of intellectual property litigation makes expert testimony crucial. Early in the case, a party and its counsel must identify and retain well-respected experts in the relevant fields. The expert will work closely with trial counsel to develop and prepare a case. Often the experts ability to clearly explain complex issues to the jury will make or break a case. Motions Practice During discovery and prior to trial, either or both parties may file any number of motions with the Court. Simple motions often address procedural, discovery, or evidentiary issues. More complex motions, like motions for summary judgment, ask the Court to dispose of all or a portion of the opposition case before trial. Trial The trial is the opportunity to present each side of the case. If the trial is to a jury, the judge and/or the parties question prospective jurors regarding their opinions and biases in the selection process called voir dire. Each party then presents its view of the case in an opening statement. The plaintiff presents its evidence first. It may call fact witnesses to testify, offer documents and exhibits that support its position, and use experts to explain complex issues. The defendant then has the opportunity to do the same. After the evidence has been presented, both parties summarize their arguments in closing arguments. The judge then instructs the jury on the relevant legal principles and the jury deliberates until it reaches a decision. Either party may challenge the verdict through a motion for judgment as a matter or law or for a new trial. Appeal If one party is unsatisfied with the result at trial, it may file an appeal. Generally, appellate courts only review errors of law committed at trial. Both parties submit briefs to the court detailing their arguments and the court may hold oral argument. An appeal can extend the litigation process from one to two years after trial.   Alternatives To Litigation Creative Settlement Alternatives. The vast majority of civil lawsuits settle before reaching trial. Therefore, at the outset of any litigation, it generally is wise to consider whether settlement is feasible in light of your litigation objectives. Vascoe Valdes LLP attorneys pride themselves on thinking outside of the box to identify creative settlement opportunities that increase the value for all parties involved. Arbitration. Arbitration is an adversarial process where the parties choose a neutral third party to resolve the dispute. The process generally is less expensive and less formal than a trial. Arbitration can be binding (neither party can appeal the arbitrator decision) or non-binding and often results from an agreement between the parties. Mediation. Mediation is similar to arbitration in that a neutral third party is involved. Unlike an arbitrator, however, a mediator does not render a decision on the merits. The mediator often meets with each party separately to discuss their respective positions and then assists the parties in reaching a settlement.