PATENT LITIGATION:

Patents are enforced by filing a civil action for patent infringement in a federal court located in a state where the court has personal jurisdiction over the defendant. The person or company that files a civil action is known as the "plaintiff." The person or company defending a civil action is known as the "defendant." At FOXPATENT, we have represented clients both as plaintiffs and defendants. We have filed civil actions for patent infringement on the basis that a competitor was selling a product that infringed our client's utility and/or design patent. Conversely, we have defended clients who have been served with a complaint alleging that its sale of a product infringes the utility and/or design patent rights of the patent holder. We have also filed declaratory judgment actions in federal court requesting the Court to determine whether or not our client's continued sale of a product would infringement the patent rights of another party. A decision to file a declaratory judgment action typically arises when a patentee sends a cease and desist letter to our client (or their customer) alleging patent infringement and threatening to file a civil action if our client does not stop selling the product and requiring other terms, such as damages, that are wholly unreasonable and not justified. At FOXPATENT, we have battled some of the largest law firms in the United States. When negotiations fail or appear unrealistic going on the offensive is often a good litigation strategy. A defendant is typically more inclined to discuss settlement after a complaint is filed in federal court rather than before a complaint is actually filed. Also, the state where a civil action is filed is often a critical part of the litigation strategy as case law on affirmative defenses such as latches can vary and hiring local counsel is an additional expense to the client forced to incur such expenses.

Patent litigation costs (attorney fees and expenses) vary widely depending upon a number factors, including the type of patent (utility or design); the strength of the patent; and the amount of potential actual damages. Unlike utility patents, design patents are typically less expensive to litigate than utility patents as utility patents commonly have many claims that must be reviewed and litigated while a design patent has a single claim. In cases of willful patent infringement, it may be possible to obtain an award of treble damages (3x actual damages) and attorney fees. Quite often, the filing of a complaint ends the matter quickly resulting in a settlement agreement between the parties. Typically, any settlement agreement requites the parties to maintain the terms and conditions of the settlement agreement in confidence and may only be disclosed by a court order. However, a battle over infringement (what is "covered" by the claims of patent) and/or the validity of the patent can be very expensive - in excess of one million dollars ($1,000,000) if a large law firm is employed. At FOXPATENT, we handle patent litigation at an effective hourly rate that is significantly lower than large law firms thereby providing our clients with an important advantage over their competitors. The amount of attorney fees and expenses associated with patent litigation are always a critical factor when deciding when and how much money a defendant is willing to pay to settle a case or how far a plaintiff is willing to take a case. At FOXPATENT, we also accept patent infringement cases on a contingency basis ranging from 33% to 50% of any money received from a judgment or settlement. In such cases, the client may not pay for any attorney fees or costs or only out-of-pocket costs such as court filing fees and deposition costs.

TRADEMARK LITIGATION

Trademarks (registered and unregistered) are enforced by filing a civil action for trademark infringement in a federal court located in a state where the court has personal jurisdiction over the defendant. At FOXPATENT, we have filed civil actions for trademark infringement on the basis that a competitor is using a trademark in connection certain goods or services that create a likelihood of confusion as to source of origin and/or sponsorship of the goods or services with our clients use of their trademark on their goods or services. Conversely, we have defended clients who have been served with a complaint alleging that their use of a trademark infringes the trademark (registered or unregistered) of the plaintiff. We have also filed declaratory judgment actions in federal court requesting the Court to determine whether or not our clients use of a trademark infringes the trademark rights of another party.

Trademark litigation costs (attorney fees and expenses) vary widely depending upon a number factors, including: (1) whether or not trademark is registered; (2) if registered, whether the trademark registration has become incontestable; (3) the similarity of the marks; (4) the similarity of the goods; (5) the channels of trade; (6) evidence of actual confusion in the marketplace; (7) whether or not the trademark owner has diligently policed their trademark; and (8) the amount of potential actual damages. Unlike patents, actual damages in a trademark action may be difficult to prove and sometimes the only relief available is an injunction. In cases of willful infringement, a court may find the case to be exceptional and may award treble damages (3x actual damages) and attorney fees to the trademark owner. Quite often, the filing of a complaint for trademark infringement ends the matter quickly resulting in a settlement agreement between the parties. Trademark litigation cases typically settle faster than patent litigation cases because the defendant is being asked to stop using a confusingly similar mark and not to stop selling a product. In some cases, a plaintiff may be willing to pay the defendant for re-branding where the defendant has a good argument of non-infringement and/or a strong affirmative defense such as latches (the plaintiff had actual knowledge of the defendant and waited an unreasonable period of time to file the action causing the defendant prejudice. In such a case, a plaintiff does not want to risk a decision of non-infringement or even worse losing their trademark rights. Most settlement agreements requite the parties to maintain the terms and conditions of the settlement agreement in confidence and may only be disclosed by a court order. However, a battle over infringement (whether or not a likelihood of confusion exists) can be expensive and even more expensive if a large law firm is employed. At FOXPATENT, we handle trademark litigation at an effective hourly rate that is significantly lower than large law firms thereby providing our clients with an important advantage over their competitors. Like patent litigation, the attorney fees and costs associated with trademark litigation are always a critical factor when deciding when and how much money a defendant is willing to pay to settle a case or how far a plaintiff is willing to take the case.