Lawyer Monthly Magazine - August 2019 Edition

You have litigated every type of IP issue, from trademarks to copyrighting; which type of issue is the most challenging and why? The type of issue in the IP area most challenging is patent infringement findings and damages. The damages aspect is simply over-technical and unrealistic; I believe that in this instance, IP infringement damages should be handled more like negligence damages or even fraud damages. Findings of infringement appear to be more and more controlled which is thus limited by the type of business that wants to get away with theft. How would it benefit you and the client if these damages were handled more like negligence of fraud damages? As it stands now in patent infringement damages, in many ways, it is convoluted with respect to the calculations and oftentimes too complex and have nothing to do with damages that occurred to the plaintiff. This is the reason to why I state that such claims ought to be handled similar to negligence or fraud damages cases, as the calculations that are concluded here are so easy to calculate yet remain to be of great benefit for the plaintiff. Prior to IP litigation, what things ought to be ‘checked off’ your list, to ensure you are fully prepared on your client’s behalf? This can be answered simply: “everything” should be checked off your list in order to be fully prepared, but perhaps the most important is your own Markman claim interpretation before you do anything else. You must try to accurately ascertain, as much as possible, the extent of the conceivable damages, if there are any. What are the common reasons behind patent disputes leading to litigation? Common reasons behind patent disputes are always, or at least mostly, ego, irritation, revenge, which upon reflection are never good reasons. Irritation and revenge are common factors and the reasons behind a dispute especially if an alleged infringer is taking market share from something you or your company conceived, reduced and practice and protected. What can businesses do to avoid litigation? To avoid litigation you need to stay cool, don’t be resolute, don’t slam the table. You ought Super Lawyers By Guy E. Matthews, Matthews, Lawson, McCutcheon & Joseph, PLLC 73 AUG 2019 | WWW.LAWYER-MONTHLY.COM I BELIEVE THAT IN THIS INSTANCE, IP INFRINGEMENT DAMAGES SHOULD BE HANDLED MORE LIKE NEGLIGENCE DAMAGES OR EVEN FRAUD DAMAGES.