Patent infringement damages are those monetary rewards available to patent owners and licensees whose patented/licensed invention is used, made, or sold in an unauthorized manner. The two main forms of patent infringement damages are reasonable royalties and lost profits. Treble damages and attorneys’ fees are also available in cases of willful infringement. For more information, see our blog post, What are patent infringement damages?
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A patent protects a new and useful invention by securing the right in the patent holder to exclude others from making, using, offering for sale, selling, or importing an invention—all for a limited time. Thus, a patent protects an inventor’s exclusive right to engage in these activities pertaining to their invention. For more information, see our blog post, What Does A Patent Protect?
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A patent is a form of intellectual property that gives an inventor the right to exclude others from making, using, offering for sale, selling, or importing an invention—for a limited time. The three types of patents recognized by the United States Patent and trademark Office (USPTO) are (1) utility patents, (2) Design patents, and (3) Plant patents, all covering different types of inventive assets. For more information, see our blog post, What is a patent?
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The following are potential defenses to a copyright infringement claim:
Fair use
Independent creation
Innocence (not a defense to liability but reduces damages)
License
Authorization
Copyright misuse
Limitations
Invalid copyright
Lack of originality/scenes a faire
Common source/no infringement
Joint ownership
Lack of ownership
Unclean hands
Estoppel
Failure to register
Waiver
Abandonment
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Copyright infringement damages are the monetary rewards available to copyright owners whose protected work is used in an unauthorized manner. These damages include (1) actual damages and any additional profits of the infringer, or (2) statutory damages. Additional damages may be available in cases of willful infringement, and, where a work is registered, attorneys’ fees may be included. For more information, see our blog post, What are copyright infringement damages?
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A copyright protects an original work created by an author that has been fixed into some tangible form. Common examples include books, plays, songs, paintings, etc. Importantly, it is not the creative idea itself that a copyright protects, but rather, the tangible form in which the idea has been fixed. Further, the concept of originality is not absolute, as parodies and satire are protectable works as well. For more information about copyright protection, see our blog post, What Does A Copyright Protect?
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A copyright is a form of intellectual property that gives the creator of an original work the exclusive right to copy, distribute, adapt, display, and perform a creative work. Copyrights are automatically created when someone creates an original work of authorship that is fixed in a tangible form, thus, the idea itself is not copyrightable. For more information, see our blog post, What is a copyright?
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In order to prevail on a trademark infringement claim, one must prove two elements: (1) that one possesses a legally protectable trademark; and (2) the defendant’s use of the same or similar mark creates a likelihood of confusion as to source, affiliation, or sponsorship.
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A trademark is a word, phrase, and/or design that serves to identify the source of a product or service in the eyes of consumers. A trademark need not be registered with the U.S. Patent and Trademark Office (“USPTO”) in order to be protected, but with federal registration the owner of the mark has put others on notice that the trademark already is in use. Federal registration also provides the registrant with the exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration. In addition, a registrant has the ability to bring an action concerning the mark in federal court and can file the trademark registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
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In order to register a copyright for original content, you must complete three steps: (1) complete an application providing information such as the title, author, and date of creation; (2) pay the fee associated with registration (typically via credit/debit card or ACH transfer via Pay.gov); and (3) submit your work to the Copyright Office. You can complete these steps yourself through the registration portal of the United States Copyright Office at https://www.copyright.gov/registration/ or contact your intellectual property counsel for assistance in preparing and filing the application.
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A cease and desist letter is an informal means of enforcement used by the owner of certain intellectual property to notify an unrelated third-party that they have use of the same or similar IP that infringes upon the owner’s rights and allows that third party an opportunity to “cease and desist” all such infringement right away, in an effort to avoid more formal, and costly, enforcement tactics.
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The first step in protecting valuable intellectual property rights is to ensure you do, in fact, own such rights. Since patent, copyright, trademark and trade secret rights arise differently, you should first ensure that your use is enforceable against what you have identified as an infringing use. The next step is to determine what options are available to you and which of those options are within your budget and appetite for conflict. Enforcing IP rights can take many forms, ranging from cease and desist letters, to UDRP proceedings or arbitration, proceedings with the Trademark Trial and Appeal Board, or federal lawsuits.
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Failing to register a trademark with the United States Patent and Trademark Office (USPTO) deprives the trademark owner of various rights and benefits not available at common law, including nationwide rather than local protection, diminished burden of proof for trademark infringement, public notice of the owner’s rights in the trademark, and an easier transition in seeking foreign registrations.
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Licensing Agreements, particularly in the context of intellectual property, are written, legal contracts between two parties wherein the owner of the IP at issue gives permission to another party to use the IP. The agreement, between the licensor (the IP owner) and the licensee (the permitted party) should set forth the specific terms of the agreement between the parties, including the specific IP at issue, whether the license is exclusive or non-exclusive, terms of use, term of the agreement, what rights are retained by the licensor, and other key terms.
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The transfer or sell of IP rights generally occurs through a written assignment of ownership rights from the owner to another party. An assignment is a complete transfer of all ownership in and rights to the IP included in the assignment. A license, on the other hand, is a written agreement allowing a third party to use certain IP for a stated term and does not transfer ownership of the IP.
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“Work for hire” means that one party has expressly hired another to create original content that the parties intend will belong to the person doing the hiring. This type of agreement is valid only as to certain types of works, as specific in the Copyright Act.
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