Litigation

Our attorneys regularly prosecute and defend patent infringement cases, appearing in federal district courts throughout the country. Where appropriate, our patent litigation strategy includes administrative proceedings before the International Trade Commission or Patent Trial and Appeal Board of the U.S. Patent Office. Based on our diverse patent litigation and patent prosecution experience, our attorneys are well-versed in the substantive and procedural nuances of a patent case, allowing us to develop detailed litigation strategies in a complex dispute arena. But we don’t get mired in the technicalities. Instead, we pursue patent litigation with a business-minded approach, beginning with a clear understanding of our clients’ litigation objectives and business goals. We then apply our skills, experience, and creativity to resolve our clients’ patent challenges.

Patent owners possess the unique right to exclude others from practicing a patented invention. Anyone who makes, uses, sells, or offers to sell a patented invention in the United States, without permission, infringes the patent and may be liable to the patent owner. Our trial lawyers work with plaintiffs and defendants in patent litigation throughout the country.

Procedure
Federal Courts have exclusive jurisdiction in any case relating to patents. A patent infringement action can be filed in any district in the United States where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business. A defendant is deemed to reside in any judicial district in which he is subject to personal jurisdiction for patent cases.

Appeals from decisions of the federal district courts are taken to the Court of Appeals for the Federal Circuit. The Federal Circuit has jurisdiction over an appeal from a final decision of a district court in any action regarding patents. The United States Supreme Court is the court of final appeal on patent matters.

In any federal action, the plaintiff must have standing to prosecute the action, which means that an individual or entity must have a sufficient stake in the controversy. Only the patentee has the right and standing to prosecute an infringement action in his own name. A patentee for these purposes includes successors in title, i.e., an assignee. A party that is not the patentee, such as a licensee, may still have standing to sue for infringement if that party has a legally protected interest in the patent. Unlike the patentee, however, that party may not sue in its own name alone, but must joint the patent owner in an action brought against an accused infringer.

Infringement
Establishing patent infringement requires a two-step inquiry. First, the district court must construe the asserted patent claims. Next, the fact-finder must determine whether the accused product or process contains or practices each limitation of the patent claims.

To obtain a judgment against a patent infringer, the patent holder must prove infringement by a preponderance of the evidence. There are two types of infringement: (1) direct infringement, where the defendant made, used, sold, or offered to sell the claimed invention; and (2) indirect infringement, where the defendant contributed to the infringement or induced another to infringe.

Defenses to Infringement
Defendants in patent infringement lawsuits have two broad categories of available defenses: statutory defenses and equitable defenses. Statutory defenses include noninfringement and invalidity. Equitable defenses include inequitable conduct, misuse, equitable estoppel, and laches.

Remedies and Damages
When a valid and enforceable patent has been infringed, the patent holder may be entitled to certain remedies, such as damages, an injunction, and attorneys’ fees. Damages can include lost profits or a reasonable royalty.

A reasonable royalty is an amount that a person desiring to manufacture and sell a patented article would be willing to pay as a royalty to the patent owner. Several methods have been used to determine reasonable royalties. One option is to look at an established royalty, evidenced by several past license agreements. If the evidence of past licensing activity is not consistent with the case before the court, the reasonable royalty is usually based on a hypothetical negotiated license between two parties. The court could also use the analytical approach, which takes into account historical accounting information. This approach estimates the royalty by subtracting the normal profit margin of a business from the expected profit margin to find the appropriate royalty rate. A final approach is the investment return analysis. This approach determines the royalty rate that will provide an investment-quality return on the hypothetical licensee’s assets that are contributed to the licensing relationship and the licensee’s profit from the license.

Lost profits is a measure of damages that accounts for the profits a patent holder lost as a result of the infringement. In order to recover lost profits, the patent owner must show a reasonable probability that, “but for” the infringement, he would have made the sales that the infringer made. In addition to the lost profits on defendant’s sales, the patent owner may claim damages for lost profits due to price reductions caused by competition from the infringer as well as increased costs associated with lower volumes of sales.

In some cases, a patent holder may be able to recover treble damages. The court may order the infringer to pay up to three times actual damages if the patent holder can show that the defendant’s infringement was willful. To determine whether infringement was willful, the judge or jury must consider a number of factors, including whether the defendant knew of the patent and either copied it or tried to design around it, whether the defendant has substantial defenses to infringement, and whether he engaged in any litigation misconduct.

Courts may also enjoin a defendant form infringing a patent in the form of a preliminary injunction and/or a permanent injunction. In determining whether to issue an injunction, a court considers the following factors: (1) likelihood of success on the merits (for preliminary injunctions); (2) whether the patent owner would suffer irreparable harm by the absence of an injunction; (3) a balancing of the parties’ relative hardships; and (4) whether the public interest would be served by an injunction.

In general, as with most litigation in the United States, each party in patent litigation bears its own attorneys’ fees and expenses. In exceptional cases, however, the court may award reasonable attorney’s fees to the prevailing party. An exceptional case is simply one that stands out from others with respect to the strength of a party’s position or the manner in which the case was litigated. District courts use their discretion to determine whether a case is exceptional on a case-by-case basis. Typically, the circumstances that justify awarding fees against the patent holder are limited to situations where the patentee asserted a patent procured by inequitable conduct or the patentee asserted its infringement claim in bad faith. The conduct that supports awarding fees against the infringer includes willful infringement, asserting defenses in bad faith, and changing designs during trial.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

Post-grant proceedings allow a party to challenge the validity of an issued patent in an expedited trial-like proceeding before the Patent Trial and Appeal Board (PTAB) of the U.S. Patent Office. Our registered patent attorneys are eligible to practice before the PTAB and have successfully represented our clients in a number of post-grant proceedings. Our firm’s diverse patent litigation and patent prosecution experience allows us to aggressively pursue our clients’ interests before the PTAB without losing sight of our clients’ broader litigation and/or prosecution goals.

Trade secrets can be highly valuable assets. Broadly speaking, any information that provides an economic edge by not being generally known is protectable as a trade secret, provided the owner takes reasonable measures to keep it secret. When a trade secret is improperly acquired, disclosed, or used, the owner may sue for trade secret misappropriation. Our trial lawyers defend and enforce trade secret misappropriation claims in state and federal court.

As patent law continues to evolve and the scope of patent protection becomes less certain with respect to certain types of technology, companies are relying more on trade-secret laws to protect valuable business information. Unlike patents, which are publically disclosed, a trade secret includes any information that derives value from its secrecy and is the subject of reasonable efforts to maintain its secrecy. We work with our clients to create effective policies for identifying and protecting trade-secret information. When necessary, we protect our clients’ trade-secret information through litigation. Sometimes, trade secrets are misused to prevent innovation and competition or to obtain critical information from a competitor through litigation. In those cases, we strive to disprove allegations of trade secret misappropriation while protecting our clients’ core business secrets.

What is a Trade Secret?
A trade secret is confidential, commercially valuable information that provides a competitive advantage. Common trade secrets are customer lists, marketing strategies, pricing information, product plans, and chemical formulas; however, trade secrets can include all forms and types of financial, business, scientific, technical, economic, or engineering information. Whether information is a trade secret is a fact-intensive inquiry that generally focuses on the type of information, the extent to which the information is known by others, the measures taken by the trade secret owner to keep the information confidential, and the information’s value to its owner and its owner’s competitors. Unlike other forms of intellectual property, trade secret protection may extend indefinitely, lasting as long as the trade secret is kept confidential and has economic value. Google’s search engine algorithm, Coca-Cola’s formula, and Kentucky Fried Chicken’s recipe are examples of well-known trade secrets.

Where are Trade Secret Cases Litigated?
Until recently, civil trade secret claims arose under state law. But in May 2016, the federal Defend Trade Secrets Act (“DTSA”) was enacted, which armed businesses with a federal cause of action for trade secret misappropriation. Even so, because the DTSA does not preempt state trade secret law, companies may pursue trade secret claims under state law, federal law, or both. The facts of each case guide this decision.

Depending on when the misappropriation occurred, claims brought solely under Texas law are governed by either Texas common law or the Texas Uniform Trade Secrets Act (“TUTSA”). Either way, if the parties are not subject to diversity jurisdiction, suits brought under Texas law may be filed in the county where the defendant resides or has its principal office, or in the county where a substantial part of the acts giving rise to the claim occurred. Claims brought under the DTSA must be filed in federal court, and (generally speaking) may only seek to remedy misappropriation that occurred on or after May 11, 2016—the date the DTSA was enacted.

What is Trade Secret Misappropriation?
Misappropriation of a trade secret may occur in many ways. One form of misappropriation occurs when a person acquires another’s trade secret through improper means, such as theft, bribery, misrepresentation, espionage, or breach of a duty to maintain the secrecy of a trade secret. Misappropriation also occurs when a person uses or discloses a trade secret he acquired by improper means. A common example of this form of misappropriation is when a departing employee discloses trade secret information of his former employer to his new employer. A trade secret can also be misappropriated when a person uses or discloses it while knowing it was acquired by improper means. A person who uses trade secret information he knows was stolen by another may be liable for misappropriation, too.

What are Some Defenses to Trade Secret Misappropriation?
Although every case is unique, common defenses include showing the information claimed to be misappropriated was developed independently, proving the information is not eligible for trade secret protection, or establishing the information was not adequately kept secret. Independent development is generally the most advantageous defense given if information was independently developed, it does not matter how the trade secret is defined because independent development is a complete defense to trade secret misappropriation. To prove the information claimed to be trade secret is not eligible for protection, however, the trade secret must be defined and the type of information, whether it is known in the industry, and whether it has commercial value because it is not known, must all be considered. The third common defense—showing the information was not adequately kept secret—not only depends on how the trade secret is defined, but also on the facts surrounding its protection, such as whether it is the subject of confidentiality agreements, password protection, or the focus of other precautions.

What Remedies are Available for Trade Secret Misappropriation?
The damages available for trade secret litigants vary depending on whether their claims are brought under state or federal law, but generally trade secret owners may recover their actual damages, reasonable royalty damages, or unjust enrichment damages. Actual damages in trade secret cases may include the trade secret owner’s lost profits, which are typically calculated as net lost profits, but may also be determined by the trade secret thief’s own profits. This is known as disgorgement. Other theories of actual damages consider the affects felt by the trade secret owner, such as price erosion due to the trade secret no longer being secret. A reasonable royalty damage model considers a hypothetical license of the trade secret, and what that license would cost. And unjust enrichment damages seek to return the benefit received by the trade secret thief to the trade secret owner. In some circumstances, enhanced damages and attorneys’ fees may be warranted.

Aside from monetary damages, trade secret owners may also halt misappropriation before the lawsuit has concluded by seeking an injunction. The limitations on injunctions vary between state and federal law, with the DTSA prohibiting injunctions that prevent a person from entering employment, place conditions on a person’s employment (unless based on evidence of threatened misappropriation), or conflict with state law prohibiting restraint on practicing lawful business, while the TUTSA contains no such limitations. Another avenue for immediate relief is the ex parte seizure provisions under the DTSA, which allow a federal court to seize property and prohibit the dissemination of the trade secret without notice to the accused trade secret thief. This procedure is only available in extraordinary circumstances, and if the seizure proves to be excessive or wrongful, the trade secret owner may be liable to the accused misappropriator for damages.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

Our firm works hard to understand our clients’ businesses and the value of their brands. We have devoted a significant portion of our practice to Lanham Act litigation, appearing in dozens of lawsuits and TTAB proceedings on behalf of retailers, franchisors, manufacturers, and more. Our institutional knowledge of the law and broad network of consulting and testifying experts enables our firm to provide efficient and effective representation in trademark and false-advertising litigation. Our experience also allows us to develop forward-thinking strategies and provide high-quality representation in proceedings before the TTAB.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

Oppositions allow parties to challenge whether a trademark application should proceed to registration, and cancellations allow parties to challenge the validity of a registered trademark, in an administrative, trial-like proceeding before the Trademark Trial and Appeal Board (TTAB) of the U.S. Trademark Office. Our experienced trademark attorneys have an in-depth knowledge of all phases of oppositions and cancellations, and we understand the nuances of practice before the TTAB. Our firm’s diverse trademark experience allows us to aggressively pursue our clients’ interests before the TTAB without losing sight of our clients’ broader business goals. We have represented a wide variety of clients in trademark matters before the TTAB, including clients selling sports equipment, vehicle accessories and parts, cosmetics, DNA analysis, food and beverages, and more.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

In today’s ultra-competitive markets, some competitors will say anything to gain an advantage. We have substantial experience identifying false or misleading advertising and developing comprehensive solutions to prevent competitive harm to our clients. Applying lessons learned from litigation, we regularly advise our clients on advertising best practices.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

Cybersquatters register commercially valuable Internet domain names that trade on the trademark rights of others, with the intention of either selling the domain name for a high price or otherwise profiting from its use. Cybersquatters may register a domain name that matches a business name or a popular trademark if that domain name is not already registered by the rightful owner. Cybersquatters may also register various misspellings of a legitimate domain name that represent common typographical errors. If a cybersquatter has registered a domain name that is diverting business away from your legitimate website, you may be able to recover the disputed domain name through an arbitration process available under the Uniform Dispute Resolution Policy (UDRP). Our attorneys have successfully handled many UDRP disputes on behalf of our clients. Other possible options for resolving domain name disputes include filing suit in federal court under the Anticybersquatting Consumer Protection Act (ACPA) or seeking protection under trademark law or unfair competition laws.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

Many commercial disputes involve complex copyright ownership and infringement issues. Our attorneys have the experience to identify subject matter eligible for copyright registration, which provides our clients with additional business and litigation protections. On the defense side, we apply our strong understanding of intellectual property law to every case, forcing purported copyright owners to prove all elements necessary to prevail on copyright infringement claims. We also advise on and litigate Digital Millennium Copyright Act (DMCA) disputes.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.

From insurers and reinsurers to policyholders, the attorneys at Harper & Bates have decades of experience resolving client matters in this highly regulated and complex industry. We represent insureds and insurers in litigation covering a wide range of subject areas, as well as insurance coverage issues. Those subject areas include product liability, professional liability and bad faith, negligence and other torts in the fields of aviation, trucking, construction, premises liability, pharmaceuticals and a wide variety of manufacturing operations. We also counsel clients on loss mitigation and dispute resolution.

For skilled advocates to defend your business, call 214-238-8400 or email info@HarperBates.com to consult with a litigation attorney today.