Intellectual Property Litigation

Intellectual property is at the very heart of many of today’s businesses and, therefore, quite often the source of unavoidable controversy.  Inherent in this intangible product of the human intellect are certain indispensable rights that need protection in order for the owner to obtain the maximum benefit from this valuable creation.  The Wilentz Intellectual Property Litigation team of practiced and versed attorneys not only carefully considers each case on its merits along with the probability of success, but also decisively scrutinizes how any proposed resolution will affect your reputation in the marketplace.  Whether encountering willful violation of your intellectual property rights, or being the target of questionable litigation claims, our attorneys will bring a focused resolve to navigating your case to a favorable resolution through development of proactive litigation strategies directed towards cost-effective, successful outcomes that often benefit from creative business resolutions.  And while it often is more desirable to settle a claim than run the potential risks of increased cost or adverse publicity that could result from taking the matter to trial, experience may dictate that the better course is to vigorously defend a claim to avoid setting an undesirable precedent or inviting additional claims.  Not only understanding each client’s case, but perhaps more importantly, the client’s business objectives is a crucial component of any litigation strategy.  At Wilentz, we believe that to do otherwise would be untenable.

Patent Infringement Litigation

Whether prosecuting or defending a patent litigation matter, effective representation requires proper investigation, analysis and strategic planning.  An early and comprehensive file history examination, claim evaluation and factual investigation are essential to determine the strengths and weaknesses of the case.  As most cases require construction of patent claim types and terms, such pre-litigation measures are the necessary prerequisites towards development of claim construction strategies that support the desired outcome.  Through proper claim development and Markman proceedings, a case may be directed towards favorable summary disposition, thereby bringing a favorable result without the necessity and expense of trial.

In patent litigation, it is especially critical that the finder of fact understand the underlying subject matter.  When trial is unavoidable, our litigation attorneys collaborate with experts who possess the technical knowledge necessary to translate and present the underlying complex technical aspects of the case to judges and juries in a simple and persuasive way.  Bringing to bear the knowledge of our inventor clients together with the appropriate, no-nonsense experts allows our team to present a cogent, understandable case that comports with the evidence and advances our clients’ business interests.

In addition to patent infringement litigation in federal courts, our attorneys consult with clients as to possible inter partes review (IPR) proceedings at the Patent Trial and Appeal Board.  IPR proceedings present a unique, viable option to challenge asserted patent claims, stay federal court litigation, and obtain favorable outcomes in a more expeditious fashion with less cost and expense than through traditional federal court litigation.  The merits and desirability of instituting parallel proceedings before the USPTO is case dependent, while defending challenges to patent claims in such proceedings requires close collaboration with the client to uphold the validity and scope of the claimed subject matter. 

Trademark, Trade Dress and Counterfeiting Litigation

Trademarks, service marks and trade dress all embody the goodwill of the business, brand and associated products, goods and services.  Rivals are allowed to compete fairly in the market, so knowing when rights have been violated, and the appropriate actions to take when such competition is not legally sanctioned, can preserve valuable good will.  When infringement occurs, diligent enforcement of owners’ rights is demanded.

Handling cases that encompass a myriad of industries and involving all types of trademark and trade dress rights, our attorneys focus on a singular goal—protecting the goodwill and brand value that our clients have worked to develop through their trademarks, service marks and trade dress.  This goal remains the same whether rights have been affirmatively violated through infringement, or whether defending against claims where there has been no infringement.  Working alongside our clients, we work hard to achieve just, workable solutions on behalf of our clients that allows them to freely operate within their markets, avoiding litigation whenever feasible and advisable.

In appropriate circumstances, early motion practice, such as an application for a preliminary injunction or temporary restraining order, is necessary to protect the client from continued irreparable harm.  The successful prosecution or defense of preliminary equitable motions can often result in effectively bring about an early resolution to the litigation in favor of our clients.  Knowing when and under what circumstances to seek such equitable relief is highly fact dependent and requires an understanding of the client’s business and the resulting harms by the infringing activities.  That is our job and our mission.

In addition to litigation in federal courts, our attorneys have successfully assisted clients in proceedings before the Trademark Trial and Appeal Board in trademark cancellation and opposition matters and in domain name disputes under the UDRP and the Anti-Cybersquatting Act for trademark and domain name owners.  Through proactive strategies on behalf of clients, our attorneys have ensured that their rights are protected and even strengthened.

Trade Secret / Software Code Misappropriation Litigation

Trade secrets are a critical form of intellectual property that are used and relied upon by virtually every business.  All businesses have valuable trade secrets that they seek to protect from their competitors--the disclosure of which would cause irreparable economic harm.  As such, a trade secret confers economic value on its owner by virtue of its secrecy.  Unlike other forms of protectable intellectual property, trade secrets are not registered or obtained through any government office or agency, as that would destroy their secrecy.

Once a trade secret is subject to public disclosure–-and the secrecy lost-–it is nearly impossible to recover as a trade secret.  Expediency is therefore of highest order.  Critical to pursuing any claim of trade secret misappropriation is the ability of legal counsel to move quickly to immediately halt further dissemination of the trade secret and prevent further irreparable harm to the trade secret owner.

Importantly, the federal Defense of Trade Secrets Act of 2016 (the “DTSA”) now provides a uniform statutory mechanism for pursuing trade secret claims in federal court.  In addition, the DTSA also allows for an ex parte seizure order–-a trade secret plaintiff would thus be able to take proactive steps to have the government seize and hold its trade secrets prior to giving any notice of the lawsuit to the defendant.

At Wilentz, we understand the immense value that trade secrets represent to our clients.  When there has been a misappropriation, our litigation attorneys have the experience to quickly obtain the necessary relief to prevent any or further harm through public disclosure, and thereby protect your valuable trade secrets, the viability of which your business may depend.

Copyright Infringement Litigation

As our society continues to digitally evolve, enforcing copyright protections becomes increasing important.  We assist clients in enforcing copyright claims and defending claims of infringement in a wide variety of areas, including computer software, as well as literary, musical, pictorial, audiovisual, sound recording and other works.  

With digital works-–whether software code, music, videos/movies and other audiovisual works, web content, or other related works-–copyright is the primary means of protection.  With easy electronic access to many digital works, however, a valuable copyright may be readily infringed. Through routine copying, or by way of sophisticated reverse engineering, the theft of copyright based works continues to steadily increase.

Fortunately, U.S. copyright law entitles content owners victimized by copyright infringement to recover actual or statutory damages.  Attorney’s fees are also available in many instances.  The availability of such legal remedies, however, may depend on whether a work has been properly registered with the U.S. Copyright Office.  In addition, injunctive relief in the form of temporary restraining orders and preliminary injunctions are also frequently available to prevent continued infringement where there is irreparable harm.  Our attorneys understand the appropriate circumstances in which to pursue potential legal and equitable remedies for copyright infringement and we work closely with our clients to prosecute and defend violations of copyright interests.

False Advertising, Unfair Competition and Related Lanham Act Litigation

If your competitor’s advertising is false or misleading, your business may have a federal claim under Section 43(a) of the Lanham Act.  Although the Lanham Act is often known as the trademark statute, it also protects businesses against the unfair competition of misleading advertising or labeling.

While the Federal Trade Commission is the government agency charged with pursuing deceptive, false and misleading advertising claims, the FTC is primarily concerned with protecting consumers.  As such, when a business is faced with false or deceptively misleading comparative advertising claims, fake endorsements or testimonials, false labeling, phony offers of “free” products, or other false, misleading or unfair advertising practices by a competitor, the business’s recourse is to initiate a private cause of action against the competitor under the Lanham Act.

Our attorneys have represented clients in a variety of unfair competition and false advertising matters arising under the Lanham Act.  We also regularly monitor actions initiated by the FTC on behalf of aggrieved consumers against businesses for similar violations and model successful agency actions, thereby increasing the likelihood of success in private Lanham Act litigation.

Knowing when specific actions rise to the level of false advertising or unfair competition requires knowledgeable, experienced counsel.  Our attorneys understand the complex intricacies of Lanham Act.

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