IP Litigation FAQs
These questions cover some of the most common concerns for individuals and businesses may ask about intellectual property litigation in the United States. For more detailed or specific advice, please contact us directly.
Frequently Asked IP Litigation Questions
What is intellectual property litigation?
Intellectual property litigation is the legal process of enforcing or defending rights related to patents, trademarks, copyrights, or trade secrets in court. Usually, the court system is the federal court system.
What types of intellectual property can be litigated?
Patents, trademarks (including trade dress), copyrights, trade secrets, and related contract or unfair competition claims can all be subjects of litigation.
How do I start an intellectual property lawsuit?
A lawsuit typically begins by filing a complaint in the appropriate court, serving the defendant, and following court procedures. It is recommended to hire an attorney, preferably one who is experienced with IP litigation, to represent you in the lawsuit.
Do I need to send a cease and desist letter before suing?
No, but it is often advisable as it may resolve the dispute without litigation and demonstrate good faith. Resolving the dispute without litigation is a preferred approach as the cost of litigation is unpredictable.
Can I represent myself in IP litigation?
Individuals can represent themselves, but corporations require a lawyer. Self-representation is not recommended due to the complexity of most intellectual property lawsuits.
How long does IP litigation take?
Cases can take from one year to several years to reach trial, depending on complexity and court schedules.
What remedies are available in IP litigation?
Remedies may include monetary damages, injunctions to stop infringement, and sometimes statutory damages (copyright infringement) or an accounting of profits.
Which court should I file my lawsuit in?
Federal courts usually handle patent, copyright, and trademark cases, but some disputes may be heard in state or small claims courts, depending on the claim and amount at issue. For example, federal court has exclusive jurisdiction for patent and copyright cases whereas trademarks and theft of trade secret cases may be heard in either federal or state court.
What is the statute of limitations for IP infringement claims?
Time limits vary: for example, copyright claims in the U.S. must be filed within three years of discovering the infringement whereas the statute of limitation for patent infringement is six years from the filing of a patent infringement lawsuit.
What is the likelihood of success in IP litigation?
Success depends on the strength of your IP rights, evidence of infringement, and legal arguments. Outcomes are case-specific.
How much does IP litigation cost?
Costs vary widely: patent litigation, depending on the complexity, can cost into the millions, while copyright or trademark cases may be less expensive, tens of thousands to hundreds of thousands, but still substantial.
Can I recover attorney’s fees and costs?
In some cases, courts may award attorney’s fees to the prevailing party, especially in cases of willful infringement or bad faith.
What defenses can an accused infringer raise?
Common defenses include invalidity of the IP, non-infringement, fair use (copyright), or lack of likelihood of confusion (trademark).
What should I do if I’m accused of IP infringement?
Do not respond without legal advice. Consult an IP attorney immediately to assess your rights and defenses.
Can foreign companies be sued in the U.S. for IP infringement?
Yes, if their infringing activities affect the U.S. market or involve U.S.-registered IP.
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