Blog - The Polasek Law Firm

Do I Need a Lawyer to Register a Trademark?

Jul 28, 2021 | By Ted Polasek | Read Time: 3 minutes

Do you need a lawyer to apply for a trademark registration? Well, that depends on who you are. A trademark lawyer is a legal necessity for a so-called “foreign applicant,” for example. But given the complexities of the trademark application process, hiring an attorney is also a very good idea for anyone else seeking trademark protection. Benefits of Federal Registration You can obtain common law trademark rights simply by creating a distinctive mark and using it in commerce. You can also file a state trademark application with state governments. The Secretary of State of Texas, for example, will register your trademark for five years at a time assuming all other requirements are met by your application for trademark. Federal registration, however, offers the following additional benefits: Nationwide trademark protection, instead of the mere statewide protection that state law offer and the limited trademark rights offered under common law; Easier enforcement of your trademark rights; The possibility of attaining “incontestable” status after five years of registration, which makes your trademark difficult to challenge; The right to Use the ® symbol on your products; Help from US Customs and Border Protection to prevent the importation of infringing products (if you notify them); and Access to the US federal court system. The foregoing list is not exhaustive. You can discuss other benefits federal registration may offer you with your attorney. The Attorney Requirement for “Foreign Trademark Registrants” As of August 3, 2019, a foreign trademark registrant must retain a US-licensed attorney to complete a trademark registration. A “foreign trademark applicant” is anyone who is not: A US citizen; A lawful permanent resident; or Someone (an individual or a company) who is applying for international trademark registration under the Madrid Protocol. Even if you are a foreign trademark registrant, meaning that you fall outside of the three foregoing groups, you can still file an initial trademark application without the help of a US trademark attorney. The problem is that you will not be able to respond to Office Actions or execute trademark renewals without a US attorney. These restrictions effectively prevent foreign trademark applicants from completing the registration process without the help of a US attorney. Why Is a Trademark Registration Attorney Necessary for Domestic Trademark Registrants? For domestic trademark registrants, retaining a trademark registration lawyer is a practical necessity rather than a legal one. A trademark registration attorney can help you: Identify and understand the legal issues at stake. Trademark law can be complex, and the legal issues that present themselves in a trademark application may not be at all obvious to a non-lawyer. Advise you on how to select a strong and effective trademark and evaluate the strength of the trademarks you are already using. Perform a trademark search to identify any similar marks that might prevent your mark from being registered. It is relatively easy to identify an “exact match” trademark. Identifying a “confusingly similar” trademark, however, requires the exercise of legal judgment. Draft a proper product description for your trademark. Determine which class or classes your trademark should be filed under. File your initial trademark application with the US Patent and Trademark Office (USPTO). Respond to Office Actions. Failure to respond promptly and appropriately to an Office Action can lead to rejection of your registration application. If your application is rejected, prepare and file an appeal with the Trademark Trial and Appeal Board. Keep up with deadlines. You will probably have to file a Section 8 and 15 Affidavit after five years and file a trademark renewal application after 10 years. Advise you on how to use your trademark effectively without infringing someone else’s trademark. Fight back when someone infringes your trademark rights.This may mean sending a “cease and desist” letter, negotiating a settlement, or taking the offending party to court. These complex tasks are not things you want to confront without legal experience. You can avoid future conflicts by relying on a knowledgeable trademark attorney to help you obtain appropriate trademark protection at the outset and take steps to protect your trademark moving forward. Contact a Trademark Application Attorney Today The earlier in the process you seek a trademark application lawyer, the better your odds of eventual approval will be. Contact The Polasek Law Firm for a free consultation. I have spent years helping people across the nation with their intellectual property needs. Just call 832-400-4191 or contact the firm online.

Articles

Trademark vs. Copyright—What Is the Difference?

Jun 23, 2021 | By Ted Polasek | Read Time: 3 minutes

I frequently receive calls from potential clients seeking to protect their brand or a writing, but unsure whether they need to file a trademark application or obtain a copyright registration. What is the difference between trademark and copyright law? In fact, they are distinct from one another in several different ways. In a nutshell, a trademark is a word, phrase, symbol or design that is associated with your goods or services, while a copyright is a form of protection for an original work of authorship. If you have any questions or need help registering your trademark or copyright, please call (832) 485-3580 or send us an online message. What Is a Trademark? A trademark is a word, name, symbol or device used to identify your goods and services. In most cases this representation is visual—think of McDonald’s Golden Arches, for example, or the KFC slogan “It’s finger lickin’ good.” A trademark, however, can also be a sound or even a scent. You may acquire “common law trademark” protection through your use of a trademark in commerce. However, common law rights are limited, typically only to the specific geographic location of its use in commerce. You can obtain more expansive rights by obtaining a state registration, or better yet, a federal registration. A federal registration provides you with the strongest protection. What is a Copyright? A copyright protects creative works such as novels, paintings, photographs, websites, and even computer software source code. A “copyright” attaches to a work the moment it is affixed in a tangible medium. You must register your copyright with the US Copyright Office to enforce your rights in a federal court. Trademark vs. Copyright: A Summary of the Major Differences Following are some of the primary legal differences between trademarks and copyrights: Trademark law protects your brand that distinguishes your products and services from others. A copyright protects an original work of authorship, whether or not it represents a particular business or product. Affixing a work in a tangible medium automatically generates a copyright, while actual use (or filing an “intent to use” application) in commerce generates rights under trademark law. A trademark cannot be “confusingly similar” to a prior trademark, while a copyrighted work must be “original.” A trademark endures as long as you continue to use it in commerce and file renewals as required under law, while a copyright expires after a set period (typically the life of the author plus 70 years). Although you can register both a trademark and a copyright at the federal level, the registration process is different for each one. Potential Pitfalls The process of generating, registering, and protecting trademarks and copyrights can be complex. The following are some of the most common pitfalls: Failing to perform a trademark search to make sure that your mark is not confusingly similar to another mark. Failing to properly use a trademark. Failing to monitor the market to make sure someone else is not infringing your trademark or copyright. Failing to properly identify your registered trademark or copyright. When it comes to protecting your business’s intellectual property rights, it is critical that you get it right the first time around. Contact The Polasek Law Firm Today For a free consultation, contact an experienced intellectual property attorney at The Polasek Law Firm by calling (832) 485-3580 or by contacting us online.

Articles

What Is the Process of Copyright Registration?

May 4, 2021 | By Ted Polasek | Read Time: 3 minutes

What is Copyright Registration? From the moment you create an original work, you have an exclusive intellectual property right to make copies of your work. This is known as copyright. This right exists regardless of whether you publish your work or register it with the federal government. However, there are many benefits to registering your copyright with the U.S. Copyright Office, such as: Providing evidence that your copyright is valid; Allowing you to sue for copyright infringement in federal court; Putting others on notice of your copyright; and Allowing you to collect statutory damages for copyright infringement. If you have created a new work, consider consulting an experienced copyright attorney to help you understand what is the process of copyright registration. They can help you prepare your copyright registration, advise you about copyright infringement, and help you with contracts to publish or license your work. Steps in the Copyright Registration Process If you decide to register your copyright, you will need to pay a fee depending on is you are re-registering one piece of work. The typical copyright registration cost for standard registration is $65 and if you are submitting for a piece of work that has been registered before and you are the only author, the fee is $45. You will also need to submit an application to the U.S. Copyright Office. This process involves several steps: Prepare Your Registration Materials Your copyright registration consists of three things: Your registration form, Your registration fee, and Copies of the work you want to register. Generally, you should plan to include one copy of your work if it is unpublished and two copies if it is published. Determine How You Want to Register Your Copyright You can register a copyright either by mail or online. The easiest and quickest way to register your copyright is by submitting your registration online with the U.S. Copyright Office. Online copyright registration also has cheaper filing fees than paper registration. In many cases, you will need to mail the copies of your work separately, even if you complete registration online. However, the following works may be submitted electronically: Works that are published only electronically, Unpublished works, and Architectural works. If you prefer to register your copyright by mail, you need to choose the appropriate form for the type of work you are copyrighting. The Copyright Office has different forms for visual arts, performing arts, literary works, sound recordings, and single serials. You can download the forms online or request to have them sent to you by mail. You can mail your form to: Library of Congress U.S. Copyright Office-SR101 Independence Avenue SEWashington, DC 20559-6000 If you complete your registration by mail, you need to include your fee and copies of your work in the same package as your registration form. Follow Up on Your Registration If you register online, you will receive an electronic confirmation. If you register by mail, you should consider using certified mail to confirm receipt. The U.S. Copyright Office will not send you a confirmation. It generally takes about three to nine months for the Copyright Office to process your registration. The length of time depends on whether you submit your registration and copies electronically or by mail and whether further communication is needed before the copyright can be granted. If you file online, you can check the status of your claim online. If you file a paper application, you can contact the Copyright Office to check your claim?s status after about six weeks. If the Copyright Office has questions or needs more information from you, it will reach out by mail, email, or phone. If the Copyright Office cannot grant your copyright, it will send you a letter explaining why it rejected your registration. If all goes well and your copyright is registered, the Copyright Office will send you a certificate of registration by mail. How Long Does Copyright Last? The length of time a copyright lasts depends on when it was registered and whether the author is an individual or an institution. For any copyrights registered after January 1, 1978, the following rules apply: Individual Authors If the author of a work is an individual, their copyright will last for the length of their life plus 70 years. If the work has more than one author, then the copyright will last for the length of the last surviving author?s life plus 70 years. Institutional Authors Different rules apply if the author is an institution, such as a corporation or nonprofit organization, or someone they hired to complete work on their behalf. In this circumstance, the copyright lasts either 95 years from the date of publication or 120 years from the date of creation, whichever comes first. This rule also applies to anonymous authors. Contact an Intellectual Property Lawyer Today If you have questions about copyright registration or if you have questions regarding trademarks or patents, our experienced intellectual property attorneys are here to help. Contact us today and see what Polasek Law Firm can do for you.

Trademark

How to File a Trademark Application

Mar 15, 2021 | By Ted Polasek | Read Time: 4 minutes

Your name, logo, or slogan are important parts of your business’s identity. To protect that identity—and your business’s reputation—it is important to file a trademark application form to start the process of registering your trademark. Doing so is relatively easy and can save you many legal headaches in the long run. Whether you file an application seeking registration of a trademark on your own or with an attorney’s help, here is what you need to know. If you are looking to register a trademark, fill out the application below to get the process started. You may also send us a message or call (832) 485-3580 today for a free consultation. Step 1: Trademark Clearance Search Also called a “knockout search,” we encourage you to take this step. One purpose of conducting a search is to determine whether your trademark is eligible for registration in the first place. The U.S. Patent & Trademark Office (USPTO) will not approve a trademark application for a mark that is confusingly similar to another mark. The second purpose of a search is to determine whether the use of your mark may violate the rights of someone else that is using a confusingly similar mark. Conducting a clearance search can be difficult; knowing what to search to make sure you uncover any conflicting trademark registrations takes practice and experience. As a result, many business owners opt to hire a trademark lawyer to have the search conducted for them. Step 2: Complete the Trademark Application Form The USPTO offers registrations online through its Trademark Electronic Application System (TEAS). There are two different filing options you can choose from TEAS Plus or TEAS Standard. TEAS Plus applications cost less ($250 per class compared to $350 with TEAS Standard) but come with more requirements. Despite the higher cost, many people prefer TEAS Standard because it offers more flexibility overall. Regardless of which application you choose, every trademark application requires the same basic information. This is the same information an attorney preparing a trademark application for a client would ask for: The name, address, and entity information of the owner of the trademark (usually the business entity using the mark); The name, email, and mailing address of the person with whom the USPTO should communicate about the application (usually an attorney); An image or drawing of your trademark if you are registering more than a word or phrase (for example if there is a graphic design element you need to protect); A list of the goods or services your trademark represents and the relevant international class for each; and The date when your trademark was first used in commerce. At the end of the trademark application form, you will need to complete and sign a declaration that the information you’ve provided is true and not misleading. Understanding Trademark Classes Trademark law categorizes each trademark according to the goods or services it covers. There are currently 45 distinct classes, with each covering a particular set of goods or services. For example, Class 16 covers “paper goods and printed matter” while Class 45 covers legal and other professional services. Intent to Use vs. Use-Based Applications Trademark protection is unique in that you can get it only if you are actually using your trademark. A majority of trademark applications are use-based, meaning they cover a mark that is currently in use in commerce. By contrast, an “intent to use” application covers a trademark that you plan to use in commerce in the future. A key part of the intent to use applications is the honest intent to use the mark in the future. In most cases, you won’t be allowed to file an intent to use application simply to “reserve” your trademark for future use. Step 3: Submit the Completed Trademark Application Once you’ve completed the trademark application form, signed the declaration, and paid the fee, your application is ready to submit. After doing so, you will receive a serial number allowing you to check on the status of your application. Typically, the USPTO will assign your application to an examining attorney for review within approximately three months of the submission date. Because the USPTO receives a large volume of applications, however, it may take as long as six months. Can I File a Trademark Application for Free? No, federal (and even state-level) trademark applications always come with a fee. As explained above, the exact fee may vary depending on which application type you choose. If your budget simply cannot make room for the application fee, you may be able to take advantage of common law trademark rights. Simply using your trademark in commerce builds these rights. Keep in mind, however, that your protection is much more limited without a federal registration. For example, common law trademark protection extends only to the immediate geographic area in which you use your trademark, while a federal trademark is designed to cover the entire United States. Step 4: Monitor Your Application Over the next several months, it’s important to monitor your application and respond to any communications you get from the USPTO. If the examining attorney discovers any issues with your application, you will receive an office action explaining the issue and the reason for the application denial. Step 5: Maintaining Your Mark After It Is Registered If the USPTO approves your application, it will publish your mark for 30 days and thereafter you will obtain a Registration on Principal Register, giving you full federal trademark protection. Going forward, you will have to file additional documents to renew your registration. If you originally filed an intent to use application, your mark will not mature into a Registration right away. Instead, you’ll have to submit a “Statement of Use” with evidence that you’ve started using the mark in commerce before the USPTO registers your trademark in Principal Register. Need Help Filing a Trademark Application? Registering a trademark is not as simple as it may first appear. Even after you’ve successfully registered it, failing to follow the proper […]

News

Another Patent Infringement Case Involving A Software Patent Falls Short

Mar 10, 2021 | By Ted Polasek | Read Time: < 1 minute

The Federal Circuit once again held, in Rain Computing, Inc. v. Samsung Electronics America, Inc., et. al., 2020-1646 (Fed. Cir. March 2, 2021), that a patent owner cannot rely on a general-purpose computer as a structure for performing the function recited in the claim language when the claim language is construed to be means-plus-function. Most patent litigators are well familiar with this issue as it routinely arises in software patents. The more interesting twist to this decision was the Court’s application of these principles to a means-plus-function term “nested in” a method claim. Ultimately, the Court determined that because neither the claim language nor the specification provided an algorithm to achieve the function set forth in the claim, the claim was indefinite. The take-away from this case is that regardless of whether the asserted patent infringement is based on an apparatus or method claim, accused infringers should be looking to apply means-plus-function principles to software-directed patents and patent owners need to be prepared to respond to this challenge.

Patents

Patent Infringement: What to Do and How to Respond If You’ve Been Accused

Feb 22, 2021 | By Ted Polasek | Read Time: 3 minutes

There were a total of approximately 3.1 million unexpired patents in the United States in 2020. With so many patents covering inventions of all kinds, well-meaning companies may find that they have accidentally and allegedly infringed upon someone’s patent rights. As with other types of intellectual property, patent infringement is serious business. You may have wondered what to do if accused of patent infringement. What Is Patent Infringement? A patent gives its owners certain exclusionary rights. Title 35 of the United States Code, Section 271(a) provides that patent infringement occurs when someone makes, uses, sells, offers to sell a patented invention within the United States, or imports a patented invention into the United States. Whether the accused person knows about the patent is irrelevant to a finding of infringement; however, it may affect the amount of damages awarded. If the infringement is willful the court may enhance the monetary award up to triple the damages awarded. Additionally, Section 271 provides other bases for infringement that may be applicable to your particular situation. Your patent attorney will be able to evaluate infringement claims being made under Section 271. What to Do If Accused of Patent Infringement The first notice that you may be infringing someone’s patent may be a cease-and-desist letter from the patent owner’s attorney. This letter will likely identify the patent(s) you are allegedly infringing and the basis for the infringement charge. If you receive one of these letters, take it seriously. Consult a patent attorney without delay. However, a patent owner is not required to send a cease and desist letter, so your first notice that you are being accused of patent infringement may be service of the Complaint, which is the paper filed in Federal Court that initiates a lawsuit. Again, your first step should be to consult a patent attorney that is knowledgeable in patent infringement litigation. In either event, below are additional steps to undertake: Hire a Patent Attorney Even if you have an in-house attorney or engineering or scientific staff, it is unlikely they will be familiar with the nuances of patent law. A patent attorney will be, and they can assess the situation and give guidance on how to proceed. Gather Information Your attorney will likely ask you to start collecting information about the allegedly infringing product, and the patents listed in the demand letter or complaint. All this information is crucial to analyzing the strength of the infringement claim. Review the Patent Claims with Your Attorney Every patent contains claims that set forth the invention. Each claim is made up of several limitations that describe “the invention.” These claims are the “metes and bounds” of the patent owner’s exclusionary rights. In consultation with your attorney, review the claims in the patents. In general, infringement occurs only if your product or process meets all limitations of a particular independent patent claim. Your patent lawyer will guide you through the process of construing the claims and applying the claims to your accused product or process. A patent attorney’s expertise is crucial during this step. Develop a Plan to Handle the Case Once you have reviewed the situation, it’s time to come up with a plan to defend yourself. Your patent attorney will help you build a defensive strategy. Hire a Patent Infringement Attorney If your company is accused of patent infringement, The Polasek Law Firm can help you develop a plan to defend your company. TPLF’s mission is to provide efficient, economically viable solutions to the issues facing clients. Polasek Law Firm offers years of patent litigation experience at affordable hourly rates and flexible fee arrangements to meet your needs. Contact the firm today to schedule a free consultation.

Trademark

Tips for Hiring an Affordable Trademark Lawyer

Feb 22, 2021 | By Ted Polasek | Read Time: 3 minutes

Nationwide Representation for Trademark Litigation Your brand name or logo is an important part of your business. Whether you sell goods or provide services, your brand is how customers identify you. Registering a trademark allows you to protect the association your customers have with the goods and services of your business. However, if you’ve spent any time researching how to file a trademark, you’ve probably seen that just the filing fee is going to cost a few hundred dollars. Some attorneys will charge a flat fee for filing a trademark application; others will bill by the hour. Fortunately, finding an affordable trademark attorney is easy if you know what to look for. Below, the experienced team at The Polasek Law Firm explain what a trademark is and gives tips on when and why you should hire a trademark lawyer. If you have any questions or want to speak with a member of the TPLF team, reach out today! What Is a Trademark? A trademark is any word, name, logo, slogan, or symbol used to identify the goods or services of the seller. Because trademarks are identified with an individual’s or business’s goods or services, it is important that individuals and businesses in the same or similar spaces do not use trademarks that are likely to confuse consumers. Tip #1: Figure Out How Much Help You Need There are many steps to registering a trademark, whether it is with the U.S. Patent and Trademark Office (USPTO) or with a state, such as the Texas Secretary of State. Knowing how much help you will need from an attorney is something to keep in mind when searching for an affordable trademark attorney. If you decide to consult an attorney, have the information ready. Your attorney will want to know what the mark is, who is using the mark, the date the mark was first used (if it is being used) and the date it was first used in commerce. If you are using the mark, your attorney will want a specimen of use of the mark. If you can readily provide this information to your attorney, it will streamline the preparation of the application. A trademark attorney will generally charge a separate fee for each step, depending on its complexity. The general process includes: Conducting a search for other marks that may be confusingly similar; Determining whether your mark is confusingly similar to an existing registration or pending application; Preparing and filing the trademark application; Responding to office actions, if necessary; and After registration, monitoring the trademark and filing renewal statements. How Much Does a Trademark Registration Cost? The cost of registering a trademark has two main parts: USPTO fees and attorney fees. At a minimum, filing a trademark application with the United States Patent and Trademark Office for one class of goods or services (i.e. one type of goods) costs approximately $350. When it comes to attorney fees, the exact cost will vary depending on the facts particular to your situation. Preparing and filing the application likely will cost several hundred dollars of attorney time. After the application is filed, it will be examined by the USPTO. Depending on what, if any, issues are raised by the trademark examiner will have a large impact on additional attorney time. Tip #2: Speak with Several Trademark Attorneys Many attorneys offer an initial free consultation. During this conversation, you have the opportunity to explain some basics of your situation and what legal services you need. Use this time to find out how much the attorney charges and what your specific needs will cost. It will also give you an opportunity to evaluate whether you want to work with that person. Ask yourself, was this attorney willing to take the time to discuss your matter and explain the process? Did the attorney return your inquiry/call timely? Call 832-485-3580 For a Free Consultation Today Tip #3: Consider the Attorney’s Experience How much experience they have can affect whether a trademark attorney is affordable. While more experienced attorneys are usually more expensive, this isn’t always the case. Experienced attorneys may be more efficient. It’s important to speak with any attorneys you are interested in to make sure you don’t pass up an experienced attorney with affordable rates. Hire an Affordable Trademark Lawyer Before you search “affordable trademark attorney near me,” contact The Polasek Law Firm. If you’re looking for an attorney who won’t break the bank, look no further. Reach out today or give Polasek Law Firm a call at 832-789-6031 for a free consultation.

Patents

Patent Infringement Damages Overview

Feb 18, 2021 | By Ted Polasek | Read Time: 3 minutes

As an inventor, owning a patent is one of the most rewarding things you can achieve. Successfully obtaining a patent on your invention requires significant dedication, time, and money. Unfortunately, however, individuals and entities do not always respect the protections provided by a patent. In fact, there were more than 225,000 patent cases filed in District Court in 2017 alone. If another party steals your invention and uses it without your permission, they have committed patent infringement. When this happens, not only do they take advantage of your hard work, but they can also cause actual harm to you. If someone infringes your patent, you may have a right to recover patent infringement damages. Of course, damages for patent infringement cases can vary widely from case to case depending on various factors. But if you have questions about your potential patent infringement damages and how you can maximize your claim, contact an experienced patent litigation attorney today. The Polasek Law Firm focuses exclusively on the practice of intellectual property law. Give the firm a call today to discuss your case and see what patent infringement damages you may be able to recover. Types of Damages in Patent Infringement Cases There are two primary types of damages in patent infringement cases: reasonable royalties and lost profits. A judge may award other types of damages in certain situations. However, reasonable royalties and lost profits are the most common. Reasonable Royalties A “reasonable royalty” is one type of patent infringement damages calculation. Essentially, a reasonable royalty is the fair market value associated with the use of your patent by the patent infringer. As you might expect, determining the fair market value of a particular invention might seem speculative and difficult to determine. Fortunately, there are a few different methods of calculating reasonable royalty damages in patent infringement cases. An experienced patent infringement attorney can help you understand the various calculation methods and determine which one will allow you to maximize the amount of damages in your particular case. Lost Profits A “lost profits” claim for damages, on the other hand, does not rely on the market value of the use of your patent. Rather, lost profits are calculated by determining the amount of money that the patent owner would have made if not for the infringement. Determining lost profits for purposes of a patent infringement damages calculation can also be complicated. This is often because the patent owner must be able to show a causal relationship between the infringed patent and the lost profits. Damages in a patent infringement case can be difficult to prove. However, that doesn’t mean they are not worth pursuing. In fact, a court may even permit expert testimony to assist in determining a patent infringement damages calculation. A knowledgeable patent litigation lawyer can help you gather the evidence and information you need to help prove your patent infringement damages case. Contact a Patent Infringement Attorney Today Your patent carries important legal protections for your invention. When another party disrespects those protections, you have a right to take action. Polasek Law Firm takes your intellectual property seriously. With over 25 years of experience handling intellectual property law, TPLF has the resources and experience necessary to protect and enforce your rights. For more information on your potential patent infringement damages, contact Polasek Law Firm today and see what the firm can do for you.

Articles

What Is Contingency-Fee Patent Litigation?

Oct 21, 2020 | By Ted Polasek | Read Time: 5 minutes

Contingency-fee litigation at Polasek Law Firm serves to aid clients in pursuing patent litigation that they might otherwise not be able to afford. For many small businesses and companies, patent litigation is too expensive to pursue. Contingency-fee litigation is a cost-effective means for small businesses and companies to receive skilled counsel and defend their rights in intellectual property lawsuits. A contingency fee agreement for patent litigation means you do not have to pay your lawyer for his time unless your case settles, or you prevail in court. For corporate clients, this provides a company with the opportunity to use its money to grow its business and still have the ability to enforce its intellectual property. For individuals with a claim that has strong merit but who lack the resources to litigate a patent infringement case, it provides an avenue for representation that may otherwise not be available. This type of representation does not charge an hourly rate to clients. Instead, contingency-fee patent litigation attorneys receive a percentage of the final judgment awarded to their clients. The attorney-client agreement specifies what percentage of the final judgment the attorney receives as payment. Contingency-fee patent litigation attorneys receive payment only if they win the case for their client. Therefore, like the client, your contingency-fee patent litigation attorney has an incentive to win the case. This type of representation showcases an attorney’s ability to provide effective and efficient representation. A contingency-fee patent litigation attorney assesses the merits of your case by reviewing the following questions: Is there a valid cause of action? Are there sufficient damages? Are the damages collectible from the defendant? How much attorney time and costs will it require to complete the lawsuit? After considering these factors, an attorney may take your case on a contingency-fee-basis only if the attorney believes in the likely success of the case. Benefits of a Contingency-Fee Patent Litigation Attorney Contingency-fee patent litigation offers many benefits to clients. For example, a qualified contingency-fee patent litigation attorney evaluates your case’s goals and how best to achieve those results. Lower Out-of-Pocket Costs Patent litigation lawsuits are costly and time-consuming. Most individuals and small businesses don’t have the cash flow to continue paying a firm the high costs associated with an intellectual property lawsuit. A contingency-fee patent litigation agreement does away with the worry of how to pay attorney fees upfront. However, the client generally must pay for expenses related to litigation costs, such as filing fees and travel. If your contingency-fee patent litigation attorney fails to obtain a judgment or settlement, you pay nothing as a fee to the attorney. An Incentive to Settle When Proper The nature of contingency-fee patent litigation representation incentivizes both client and attorney to act with joint interests. This incentive pushes both client and attorney to conclude the lawsuit in the most favorable manner possible. Therefore, when it makes sense to settle a case, both parties will be incentivized. Additionally, when it makes sense to pursue litigation through trial, both parties have the same goal. A contingency-fee patent litigation agreement spreads the risk of litigation to both client and attorney. Contingency-fee patent litigation pays an attorney only if their client wins their case. By contrast, the typical hourly agreement between client and attorney requires the client to assume all risks, regardless of the outcome. A contingency-fee patent litigation attorney takes these types of cases based on the probability of success. An attorney should always diligently defend their client. However, in traditional hourly agreements, an attorney may not always believe in a case’s merits. If an attorney takes your case on contingency, they are staking their own time and resources on the case. Therefore, you can trust that your case has merit and that your attorney isn?t simply racking up fees on a lost cause. Time and Cost Control Some law firms behave in a manner to maximize billable hours in a lawsuit. In contingency-fee patent litigation lawsuits, a firm has no incentive to bill unnecessary hours or costs to a client. This drives the firm to work more efficiently toward the resolution of your case. Your attorney will be incentivized to avoid expensive delays through excessive pleadings, depositions, or conferences. Areas of Intellectual Property Handled on a Contingency-Fee Basis Contingency-fee arrangements are possible in all intellectual property litigation. Consult with a contingency-fee patent litigation attorney to review the elements of your case and determine the suitability of a contingency fee agreement. Patents A patent affords the patent holder the right to exclude others from making, using, or selling an invention. Patent protection lasts twenty years. There are three different types of patents:? Design patents, which protect the ornamental design of an invention; Utility patents, which protect the use or operation of a new machine, process or system; and Plant patents, which protect new types of engineered plants. There are five criteria to meet to qualify for a patent. These include the following: The invention must cover patentable subject matter; The invention must have utility; The invention must be novel; The invention must be non-obvious; and There must be no disclosure of the invention before the patent application. Anyone who unlawfully makes, sells, or uses a product covered by a claim of an existing patent may be liable for infringement. If you believe someone has infringed your patent, a contingency-fee patent litigation attorney will review the validity of your patent and its existing claims to determine its merits. Copyrights Copyright owners have the exclusive right to reproduce, distribute, and license their copyright. If anyone infringes on this right, the author has a claim for copyright infringement. Damages for copyright infringement lawsuits include profits made by infringing the copyright and damages for past infringement. Copyright protections extend to the following: Music, literary, and artistic works; Pictures, graphics, and sculptural works; Movies; Sound recordings; Computer software; and Architectural works. Copyright protections extend only to expressions, not to ideas, methods of operations, or concepts. Copyrights generally last for the life of the author plus 70 years. Trademarks […]

Articles

The Complete Guide: Types of Patent Infringement

Jul 24, 2020 | By Ted Polasek | Read Time: 3 minutes

Having a patent gives you the right to prevent others from making, using, or selling your patented invention. If a company or individual does one of these things, the patent owner may have a cause of action for a patent infringement case. If you believe someone has infringed on your patent or if you have been accused of patent infringement, reach out to an experienced patent litigation lawyer as soon as possible. Your lawyer can evaluate the claim and provide you with legal advice. The Polasek Law Firm can provide you with that advice. Polasek Law Firm has been advising clients on patent infringement related issues for more than 25 years. Please give the firm a call – The initial consultation is at no charge. What Is a Patent? The United States Patent and Trademark Office (USPTO) grants patents to inventions that are new, useful, non-obvious, and not excluded from patent eligibility under federal law. A utility patent typically lasts for 20 years from filing of the application. What Are the Different Types of Patent Infringement? There are several types of patent infringement. Infringement can be direct or indirect, and it can be literal or under the doctrine of equivalents. Direct Infringement Direct infringement occurs when someone directly violates your patent rights. That is, they make, use, sell, offer to sell or import your patented invention. Indirect Infringement Indirect infringement occurs when someone provides support for a directly infringing activity. Indirect infringement can be through inducement or contributory infringement. Induced Infringement Induced infringement occurs when a party with knowledge of the patent encourages or influences someone else to commit acts of infringement. For example, the person might provide someone with instructions for creating the patented invention. Contributory Infringement A person commits contributory infringement when they supply components of a patented invention knowing that the components will be used to infringe a patent. For contributory infringement to exist, the component must have no substantial non-infringing uses. For example, if someone sold a product that would be useful only if combined into a patented product, that might be considered contributory infringement. Literal Infringement Literal infringement occurs when a device or process literally meets every limitation in a patent claim. If even one component is different, it cannot be considered literal infringement. Infringement Under the Doctrine of Equivalents If someone has not literally infringed a patent, there still may be infringement under the doctrine of equivalents. Equivalent infringement may occur when the corresponding pieces of the accused product or process are not substantially different from the corresponding limitation in the claim of the patent. What Is The Effect Of Willful Patent Infringement? In the case of willful infringement, a court can triple the amount of damages that it would normally award to a patent holder. Infringement is not literally willful if an infringer had a good faith belief that it was not violating the patent or that the patent was invalid. In that case, they may still be liable for infringement. What Types of Remedies Are Available for Patent Infringement? Remedies for patent infringement may include injunctive relief and damages. An injunction orders someone to stop their infringing actions. Money damages are typically awarded for patent infringement under the patent laws, a patent owner is entitled to at least a reasonable royalty. Additionally, in certain instances, a patent owner may be able to recover lost profits from an infringer. How Can The Polasek Law Firm Help You? John (Ted) Polasek has spent the past 25 years working on all types of patent infringement cases. He has experience with both enforcing patents and defending accused infringers. Ted believes in providing one-on-one personalized service for each client. Contact the Polasek Law Firm today through the online form, or give the firm a call at 832-802-6436 to schedule a free consultation. Polasek Law Firm is ready to help with your patent infringement case.

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