Vol. 2 No. 5 May/June. 2010:

Guardrail to Guardrail:
Statutory Damage Awards in Copyright Infringement Litigation

By R. Buck McKinney

Seeking statutory damages under the Copyright Act is a bit like losing control of your car—you can find yourself careening guardrail to guardrail. Awards range from $750 to $150,000 per work infringed and may be multiplied hundreds of times. Factor in the right to a jury trial to understand more about the potential for inconsistencies in award amounts. This article outlines the current methodologies for, and increasingly heated debate over, assessment of statutory damages for copyright infringement.

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The following articles from Vol.2 No.5 May/June. 2010
are available to Section members.

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...

Product Review
Westlaw® Patents
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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