Patents

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

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.

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Trademark

Tips for Hiring an Affordable Trademark Lawyer

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 explains 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 our trademark legal team, call (832) 485-3580 or reach out online 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 affordable trademark lawyers 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 or 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) 485-3580 for a free consultation.

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Patents

Patent Infringement Damages Overview

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. 

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Articles

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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Articles

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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Articles

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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Articles

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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Articles

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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Articles

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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Articles

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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