Intellectual Property Litigation – Part II: Understanding Patent LawNovember 30, 2011
The cost of intellectual property (IP) litigation can be astronomical, and continues to increase each year. In certain cases, the high stakes of IP litigation can pose a very real threat to the survival of a company.
The possibility of being shut down by a competitor is a perennial danger to businesses, especially small companies, who cannot afford to spend millions of dollars defending a patent suit. High-tech startups are even more vulnerable: they often have very low cash or profits, making them even less able to defend a patent lawsuit. And because they use newer technology, they are also more likely to infringe patents. It is virtually impossible to be aware of all the patents that are out there, or that are about to emerge, or that have just been filed (and that are secret for 18 months after filing).
Patent litigation is the prime example of the growing likelihood and expense of IP litigation.
A patent is a form of IP consisting of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention. Patents provide rights for up to 20 years for inventions in three broad categories:
- Utility patents protect useful processes, machines, articles of manufacture, and compositions of matter. Some examples: fiber optics, computer hardware, medications.
- Design patents guard the unauthorized use of new, original, and ornamental designs for articles of manufacture. The look of an athletic shoe, a bicycle helmet, the Star Wars characters are all protected by design patents.
- Plant patents are the way we protect invented or discovered asexually reproduced plant varieties. Hybrid tea roses, Silver Queen corn, Better Boy tomatoes are all types of plant patents.
The procedure for granting patents, the requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims defining the invention which must meet the relevant patentability requirements such as novelty and non-obviousness.
IP litigation is serious business for all businesses, which is why it is a Hornberger & Brewer specialty. We’ve represented clients in complex disputes involving patents, trade secrets, trademarks, copyrights, unfair competition and antitrust issues.
For the business client, our commercial litigation experience is an invaluable asset. Let our trial lawyers at Hornberger & Brewer fight your business and commercial litigation battles.
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