Coping Without the Presumption: The Presumption of Irreparable Harm in Copyright Infringement Actions Is Alive, But You Should Assume That It Is Dead
By Wade B. Gentz
Commentators have long lamented the existence of the irreparable harm presumption in copyright infringement preliminary injunction cases. The Supreme Court’s eBay and Winter decisions seemed to eliminate the presumption, but some courts have continued to apply it. A copyright litigator must, therefore, be prepared to argue both that the presumption lives and that irreparable harm has, in fact, occurred. read more...
Recovery of Attorneys’ Fees in Trademark and Unfair Competition Litigation
By Theodore H. Davis Jr.
The availability of attorneys’ fees can greatly affect the economics of particular cases and the behavior of litigants. However, the possibility of such an award in trademark and unfair competition litigation should be regarded as just that—a possibility. Even the most compelling facts may not lead to full reimbursement. Litigants regarding this category of monetary relief as a certainty do so at their peril. read more...
Weaponizing Headstart Injunctions in the Battle Between the Clear and Clever Thinker
By Chris Scott Graham
Clear Thinkers invest time and resources in developing innovations to enhance business and technology. Clever Thinkers shortcut time and capital investment by using trade secrets wrongfully obtained from Clear Thinkers. One remedy is the “headstart injunction.” The author discusses its potential importance to counsel for Clear and Clever Thinkers alike. read more...
The Economics of Reasonable Royalty Damages in Patent Litigation: Lucent v. Gateway
By George W. Jordan III and James D. Woods
Lucent may be the Federal Circuit’s response to patent reform proponents who blame high royalty damage awards on the Georgia-Pacific factors and the entire market value rule. The court applied the factors to vacate a $358 million damage award as lacking in sound economic proof. The message: apply the Georgia- Pacific framework more rigorously and reconsider efforts to change the rule. read more...
False Patent Marking: The Forest Group Bull’s-Eye
By Timothy G. Ackermann
Do your clients know what false patent marking is? Maybe. Do your clients worry about false patent marking? Probably not. But after Forest Group, your clients should at least reevaluate whether they can reasonably believe that their products are properly marked. Otherwise, they risk marking themselves with a very expensive bull’s-eye. read more...
Patent Damages: What Reforms Are Still Needed?
By Gregory K. Leonard and Mario A. Lopez
On one side of the great damages debate are high-tech companies developing multiple technologies involving thousands of patents. On the other are pharmaceutical and manufacturing companies whose products are covered by only a few patents. Applying the same set of sound economic principles can lead to the “right” answer for both. read more...
Permanent Injunctions and Pluralistic Competition
By Clement S. Roberts
In the real world, competition takes many forms. Firms compete, for example, for inputs (such as talent and materials) even when their outputs are not competitive. Many companies’ outputs compete within limited market segments though their products are not substitutes. The pluralistic nature of competition may support arguments that can make a difference in particular cases and result in a richer, more nuanced doctrine overall. read more...
IP Value as a Basis of Economic Recovery
By Glenn W. Perdue.
This article considers asset value as a basis of recovery and illustrates how many of the concepts and approaches used in determining value overlap with those used in other forms of damage analysis. Different valuation methods are explained and applied to case studies and examples. read more...
Recovering IP Defense Expenses from Insurers
By David A. Gauntlett
When an insurer breaches its duty to defend a suit against its insured, the insured must retain independent defense counsel. But how can the insured then recover its defense expenses from the insurer? The author explains. read more...
By John A. Lingl
Recent Developments in IP Law
By John C. Gatz
From the Hill
by Hayden W. Gregory
Meeting of the Minds
By Colin B. Harris and Andrew M. Ollis
I2P Group News
By Samson Helfgott
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