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What Is Contingency-Fee Patent Litigation?

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  […]

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The Complete Guide: Types of Patent Infringement

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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What Is an Intellectual Property Lawyer?

An intellectual property lawyer is a lawyer who helps people register, protect, and make money from their unique ideas. The United States prides itself on ingenuity and innovation. Accordingly, multiple protections are available to those who invent and create. Despite these protections, the IP Commission reports that pirated software, counterfeit goods, and trade secret theft cost the U.S. economy between $225 and $600 billion every year. This goes to show just how valuable intellectual property can be. Unfortunately, the ins and outs of intellectual property, or IP, law can be hard to navigate without experience. That is why you should rely on an experienced intellectual property lawyer to help you protect your ideas. How Is Intellectual Property Protected? There are four main ways to protect intellectual property in the United States. Patent A patent gives an inventor the right to prevent others from “making, using, offering for sale, or selling” an invention for a certain period of time. Utility patents last for 20 years and apply to inventions and discoveries of useful and new products or processes. Design patents, on the other hand, apply to inventions of a new ornamental design for a product and last for only 15 years. Patents are designed to allow inventors to profit from their ideas by giving them time to develop, market, and sell their invention without interference. However, patents eventually expire so as not to unduly inhibit competition and innovation. Trademark Trademarks include things like logos, company or product names, and catchphrases. They are the things that make your product or company stand out from others. A trademark can be protected even if it is not registered. However, registering your trademark gives you broader protection and puts others on notice that you own the trademark. To register a trademark, you have to actually use it or intend to use it in commerce. Additionally, the trademark must be distinctive. The more distinctive your mark, the more protection it will receive. While trademarks can last indefinitely, you need to regularly renew your registered trademarks. Copyright Copyright gives the owner the exclusive right to copy a work. It pertains mostly to creative works such as books, music, visual art, photographs, video, and other media. Rules have changed over the years regarding how long a copyright lasts. However, the current rules apply to anything created after January 1, 1978. If the author is one or more individuals, the copyright lasts for the longest surviving author?s lifetime plus 70 years. If the author is an institution or is anonymous, the copyright lasts for 95 years from the time of publication or 120 years from the time of creation, whichever comes first. Trade Secrets Trade secrets include inventions, processes, designs, compilations, etc. that have economic value to a business because of their secrecy. Trade secrets are protected by secrecy rather than registration. There is no limit on how long you can keep a trade secret as long as you take adequate steps to protect it. Even if your secret is stolen, there are laws in place that may allow you to stop others from using or profiting from your secrets. What Is an Intellectual Property Lawyer? An intellectual property lawyer can advise you on the best way to preserve your IP rights and profit from your ideas. As discussed above, there are several possible ways to protect your intellectual property, but without proper advice, it’s easy to take the wrong path. For example, let’s say you have invented a new machine that will speed up the production of widgets. In that case, there is actually more than one way to protect your invention from IP infringement. The best method for you depends on how you plan to use the invention. If you plan to market your machine to manufacturers, then you will want to file for a patent so that you maintain the exclusive right to develop and sell the machine for the length of the patent. On the other hand, if you intend to use the machine to develop widgets yourself, and it will keep the machine secret, you may be better off relying on trade secret protection rather than registering a patent. A patent will expire after 20 years, but you can keep a trade secret indefinitely.  Your IP attorney can discuss these types of questions with you and help you determine the best way to protect your ideas. Your attorney can also help you take action if someone tries to use your intellectual property illegally. They may send a letter insisting that the person stop their infringement. If the person refuses, then your attorney can file a lawsuit and seek money damages, and possibly an injunction. How Can Polasek Law Help with Your IP Needs? John (Ted) Polasek has spent the past 25 years helping clients all over the country to establish and enforce their IP rights. Ted focuses on helping inventors and companies enforce their patent, trademark, and trade secret rights or defending companies accused of violating these rights of others. Ted can also help you apply for and obtain trademarks.  He provides the type of individualized attention that you can’t find at larger firms, and he offers flexible fee arrangements to meet your personal needs. Call or contact Polasek Law today to schedule a free initial consultation and learn what Ted can do for you.

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What Does an Intellectual Property Lawyer Do?

Intellectual property lawyers focus on helping you protect and profit from your ideas and creations. Intellectual property, or IP, plays a huge role in the United States economy. According to a report by the U.S. Commerce Department in 2016, IP-intensive industries account for 38.2%, or $6 trillion, of the United States? gross domestic product (GDP) and support at least 45 million U.S. jobs. In other words, there is a lot of money at stake when it comes to intellectual property. So it is important that you take the right steps to protect yours. An experienced IP lawyer can advise you on the best way to preserve your intellectual property rights and how to use them to grow your business. If you want to learn more about what an intellectual property lawyer does, keep reading. What Does an IP Lawyer Do? An intellectual property lawyer can advise you on anything related to intellectual property. Common examples of intellectual property include: Inventions, Algorithms, Processes, Music, Client lists, Photographs and video, Books and other written material, Secret recipes or formulas, Product or company names, Unique catchphrases, and Logos. An IP lawyer can help you identify the type of protection you need for your intellectual property. They can also help you properly register your intellectual property and enforce your rights against infringement.  When Should You Consult an Intellectual Property Attorney? Any time you have a question relating to intellectual property, you can rely on an experienced IP lawyer to advise you. However, there are a few specific situations when an intellectual property attorney will be most helpful. You Want to Protect Your Intellectual Property Intellectual property protection falls into four main categories: patent, trademark, copyright, and trade secrets. Sometimes you may need more than one type of protection for your intellectual property. In other situations, you may need to choose the type of protection that makes the most sense for your needs. An IP lawyer will advise you on how to protect your intellectual property in a manner that furthers your individual goals. They can also make sure you correctly register your IP and put appropriate procedures in place to preserve your rights. You Want to Stop Someone Else from Using Your Intellectual Property If someone infringes on your intellectual property rights, it is important to take prompt action. In some cases, sleeping on your rights can weaken or bar your IP claim. Additionally, allowing IP violations to go unchallenged can cost you licensing revenue, cut into your market share, or reduce the value of your product. Your attorney may start by asking the infringer to stop using your IP. If they refuse, then your attorney can file a lawsuit and enforce your rights in court. You Want to License Your Intellectual Property One of the ways to create revenue from your intellectual property is by licensing it to others. For example, a website might pay you a fee to use a photograph you took. Or you can sell a license to use software on a limited number of devices.  Another way is to license your patent. Licensing your intellectual property can involve complicated agreements that define your rights and obligations as well as those of the licensee. Important terms may include: Limitations on how the licensee can use the IP; Whether the rights granted to the licensee are exclusive; Whether the licensee can modify or improve on the IP; The compensation that will be paid for the license;  Whether the license can be assigned;  Requirements to maintain the license; and Remedies for violating the agreement. It is important to have an attorney draft or review the terms of any licensing agreement. Your attorney can help you negotiate favorable terms and understand how the agreement will affect you. What Does an Intellectual Property Lawyer Do for You? When you hire an intellectual property lawyer at The Polasek Law Firm, you can feel confident that your IP will be protected. Attorney John (Ted) Polasek has been helping people to protect and benefit from their intellectual property for nearly 25 years. Ted understands how important responsive, hands-on service is to clients. Intellectual property can be a very personal thing, representing your individual creativity and ingenuity, and you need someone who will value your IP the way you do. Call or fill out an online form to schedule a free consultation with Ted, and learn how he can help you protect your ideas.

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US Supreme Court Allows Recovery Of Lost Foreign Profits

In WesternGeco LLC v. ION Geophysical Corp, decided today, the U.S. Supreme Court held that 35 U.S.C. Sections 271(f)(2) and 284 allow a patent owner to recover damages in the form of a reasonable royalty and lost foreign profits for patent infringement. In this case, the defendant manufactured the components in the United States, but then shipped those components (unassembled) abroad to companies for assembly and subsequent use of the assembled system. At trial, the plaintiff presented evidence that it had lost 10 contracts due to this activity. The jury awarded $12.5 million in royalties and $93.4 million in lost profits. At issue was the extraterritoriality reach of U.S. patent law. Authoring the opinion for the Court, Justice Thomas stated [t]he conduct in this case that is relevant to that focus clearly occurred in the United States, as it was IONs domestic act of supplying the components that infringed?WesternGeco?s?patents.? The Court held that the lost-profits awarded to the patent owner was a domestic application of Section 284: Taken together, [Section] 271(f)(2) and [Section] 284 allow the patent owner to recover for lost foreign profits.

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Pick Your Registered Agent Carefully

Domestic companies incorporated in the state of Texas (and other multi-judicial district states) accused of patent infringement have an additional tool in their venue arsenal. The Federal Circuit ruled last week in In re BigCommerce that a domestic company incorporated in a state having multiple judicial districts (such as Texas) resides for purposes of the patent venue statute only in the single district within that state where it maintains a principal place of business, and if it does not maintain a principal place of business in the state, in the judicial district where its registered agent is located. The decision also provides direction on what constitutes a company’s principal place of business. In this case, the defendant accused of patent infringement maintained its principal place of business in the Western District of Texas. This case originated from litigation filed in the Eastern District of Texas. This is an interesting decision because under the facts of the case it appears the Federal Circuit did not have to include the registered agent aspect in its test. Many companies retain an outside company to act as their registered agent. This part of the Court’s ruling suggests that a company incorporated under Texas law (but not having its principal place of business in Texas) that is concerned about being sued for patent infringement in Texas, such as East Texas, may be able to impact venue through its choice of its registered agent.

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Foreign Companies Are Subject to Patent Infringement Lawsuits In Any Judicial District

Subsequent to the Supreme Court’s ruling in TC Heartland, some foreign corporations were advancing the contention that the venue for patent infringement lawsuits naming them as a defendant was not proper in any court in the United States. Today, the Federal Circuit addressed that contention in In re HTC Corporation, ruling that foreign corporations are subject to suit in any judicial district. This ruling will likely give patent owners more flexibility in deciding where they file patent infringement cases against foreign companies. Whether there is any appreciable increase in patent cases filed in Delaware, the Eastern District of Virginia, the Eastern District of Texas or other particular venues remains to be seen. In the underlying case, HTC Corporation, a Taiwanese corporation, asked the District Court in Delaware to dismiss a patent infringement case filed against it, arguing that the venue was improper in Delaware. The District Court held that HTC Corp, as a foreign corporation, was subject to suit in any judicial district. The Federal Circuit looked at the patent venue statute (28 U.S.C. Sec. 1400), the general venue statute (28 U.S.C. Sec. 1391), legislative histories, and prior Supreme Court decisions, and determined there was no error in the District Court’s analysis.

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How much Detail Is Required from Patent Owners To State A Claim for Patent Infringement?

The Federal Circuit’s opinion in Disc Disease Solutions Inc. v. VGH Solutions, Inc. et. al., handed down on May 1, 2018, may very well change the specificity that patent owners and patent attorneys provide in filing a lawsuit to enforce their intellectual property rights. It suggests that, at least for simple technology, there is not much difference, if any, between the old Form 18 requirements and the Iqbal/Twombly standard. This case was an appeal of a dismissal with prejudice of the plaintiff’s case for patent infringement. The Federal Circuit determined that by specifically identifying the accused products (and attaching pictures of the products) and alleging that the accused products meet each and every element of at least one claim, the patent owner had provided fair notice of the asserted infringement.

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Fact Issues Preclude Dismissal Under Alice

The Federal Circuit recently handed down two decisions that give guidance to patent owners contemplating patent litigation in the post-Alice world. The first was Berkheimer v. HP Inc. which was decided on February 8, 2018. Berkheimer was an appeal from the Northern District of Illinois court granting summary judgment in favor of the accused infringer, in part, that claims were patent-ineligible under 35 U.S.C. Section 101. The Federal Circuit held the claims were directed to an abstract idea, and then moved on to the second part of the Alice analysis. The second part of the Alice analysis requires that patent owners, accused infringers, and courts consider the elements of each claim both individually and as an ordered combination to determine whether the additional elements transform the nature of the claim into something patent-eligible. Citing precedent, the Berkheimer Court recognized that the second step may be satisfied when the limitations of the claim involve more than the performance of well-understood, routine and conventional activities previously known to the industry. The Court then stated the question of whether a claim element or combination of elements is well-understood, routine, and conventional to a skilled artisan in the relevant field is a question of fact. Any fact, such as this one, that is pertinent to the invalidity question must be proven by clear and convincing evidence. However, the Court then proceeded to acknowledge that whether a claim recites patent-eligible subject matter is a question of law that may contain underlying factual disputes that can be decided on summary judgment. In that case, the Federal Circuit determined that the district court erred in concluding there were no underlying factual questions, stating the mere fact that something is disclosed in a piece of the prior art, for example, does not mean it was well-understood, routine, and conventional. This ruling turned on the improvements in the specification, to the extent they are captured in the claims, create a factual dispute regarding whether the invention describes well-understood, routine, and conventional activities.? On February 14, 2018, the Federal Circuit handed down its decision in Aatrix Software, Inc. v. Green Shades Software, Inc. This was an appeal of Rule 12(b)(6) ruling of the district court, and the district court’s refusal to allow the patent owner to amend its complaint. In this case, the Court stated that although patent eligibility can be determined on a 12(b)(6) motion, this is true only when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law. In that case, the Court decided the patent ineligibility was not properly decided at Rule 12(b)(6)stage and the district court erred when it denied the patent owner leave to amend the complaint with allegations that, if accepted as true, establish the claimed combination contains inventive components and improves the workings of the computer. The court’s opinion analyzing the proposed amended complaint is an interesting read.

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A Recent Opinion From The Eastern District Of Texas Addresses Numerous Alice/Section 101 Issues

In its September 24, 2018 opinion in Intellectual Ventures v. Sprint, et. al., the Eastern District of Texas Court made several rulings that touch on a number of issues that patent owners and parties defending patent infringement allegations should consider. This opinion was the result of two identical Section 101 Motions to Dismiss filed in two companion cases involving multiple asserted patents. The first issue addressed by the Court was whether the three claims that the defendant’s motion analyzed were in fact representative of all the asserted claims in the six asserted patents. Noting the brevity with which this was addressed by the defendants (in two footnotes of their motions), the Court determined that defendants failed to sufficiently demonstrate that the three claims were representative of the other claims. The Court then turned to its Alice analysis of the three claims addressed in the defendant’s motions. Here, the Court found one claim to be directed to an abstract concept and failed to contain an inventive concept. (The patent owner’s argument that it would prove an inventive concept at trial didn’t seem to gain much traction). Addressing the second claim, the Court found it directed to an abstract idea but that there was a question of fact as to whether the claim contained an inventive concept. And finally, with respect to the third claim, the Eastern District of Texas Court determined the claim was not directed to an abstract concept under Alice.

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