Overview
Damage awards are increasing and trial tactics are changing.
Intellectual property (IP) often determines the survival of a business. In light of global competition, shorter product life cycles, and easier access to information, patents and trademarks are now major barriers of entry for companies to differentiate a product or secure a niche in the market. Therefore the desire to protect IP—which also includes copyrights, trade secrets, and technical knowledge—continues to result in record numbers of infringement actions, with patent and trademark actions among the fastest growing filings in the court system.
The court-awarded damages from these infringement actions have increased in size and number, which has emboldened IP holders to enforce their rights assertively. Together with the use of injunctive relief, enforcement or the avoidance of IP litigation is an increasingly important success factor for a business.
Tactics in these disputes are changing. A jury, rather than a bench trial, provides a definite advantage to the plaintiff because of the increased chance of success and a greater likelihood of higher damage awards. Therefore there are more jury trials for patent and trademark cases than ever before.
The growth of patent and trademark damage awards has led to increased filings in nearly every industry. This is particularly true in industries where the tangible assets contribute less to the companies’ market capitalization. Industries such as software development, biotechnology and pharmaceutical research, nanotechnology, entertainment, semiconductor design, and general business services are expected to continue to experience increased filings in the future.
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