The whole purpose of securing IP protection is to avoid or win in litigation against competitors. Strong patents, trademarks and copyrights provide substantial incentive for competitors to avoid appropriating innovations, brands and content. Many litigations start with an initial communication between the parties called a “cease and desist” letter. Intellectual property litigation is exclusively brought in federal court for patents and trademarks. Trademarks may be brought in federal or state courts.
Infringement of a patent consists of the unauthorized making, using, offering for sale or selling any patented invention within the United States or United States Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate Federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement.
In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the Federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims.
The Government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the Government. The Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.
Infringement or active inducement of infringement is willful when it is done deliberately and intentionally, and with knowledge of the patent. Copying of an invention, if such copying continues after the existence of the patent is made known, is evidence of willfulness. However, infringement or active inducement of infringement is not willful if it is done with a good faith belief that the patent is either invalid or not infringed. The burden is on the patent owner to show willfulness by clear and convincing evidence. Power Lift, Inc. v. Lang Tools, Inc., 227 U.S.P.Q. 435, 438 (Fed. Cir. 1985).
Trademark litigation is generally less technical than patent litigation. In addition to Lanham Act claims, federal court trademark litigation usually includes state claims for unfair competition, false advertising and the like.
Although a defendant may challenge the ownership and/or validity of a federal trademark registration at the Trademark Trial and Appeal Board (TTAB), federal courts rarely stay proceedings to wait out a TTAB decision unless that administrative body is close to rendering an order.
Copyright litigation is exclusively handled in federal court. If a copyright deposit was timely made, then the copyright registration owner can sue for statutory damages, attorney fees and court costs. These types of cases rarely make it to jury as the liability for the defendant may be substantial.