Emergency ReliefUnited States Mark R. Privratsky and Barbara L. Rummel Lindquist & Vennum, P.L.L.P. 80 S. 8th St., Ste. 4200, Minneapolis, MN 55402 612-371-3211 email@example.com firstname.lastname@example.org
Patents The Patent Act 35 U.S.C. §§ 1 et seq. §271, Infringement § 283, Injunctions § 284, Damages
Trademarks The Trademark (Lanham) Act 15 U.S.C. §§ 1051 et seq. § 1125, Infringement § 1116, Injunctions § 1117, Damages
Necessary Documents To Commence Action: 1. Complaint and Summons 2. Check for Filing Fee ($350.00) 3. Rule 7.1 Disclosure Statement Filing the Complaint “commences” the action. Must serve copy of Complaint within 120 days of filing.
Necessary Documents To Seek Injunction: 1. Motion for Preliminary Injunction 2. Notice of Motion 3. Memorandum in Support of Motion for Preliminary Injunction 4. Declarations / Affidavits With Exhibits In Support of Motion for Preliminary Injunction 5. Proposed Order 6. Affidavit of Service (Obtain hearing date from assigned District Court Judge’s chambers prior to filing motion papers. Scheduling is highly dependent on particular Court’s calendar and rules.)
Rule of Civil Procedure 65 65(a), Preliminary Injunctions Requires Notice to Adverse Party. Possible Consolidation of Hearing With Advanced Trial on the Merits 65(b) Temporary Restraining Order Without Notice But Requires Attorney Certification of Efforts to Achieve Notice Requires Follow-up P.I. Motion 65(c) Security (Bond) Required
Injunctive Relief Four Factors 1. Probability of Success on the Merits 2. Threat of Irreparable Harm In the Absence of Injunction 3. Balance of Harms (Plaintiff vs. Non-Moving Party) 4. Public Interest Court must balance factors to decide if equities favor court intervention to preserve the status quo pending a determination of the merits of the parties’ claims.
Patents: Particular Support Preliminary Claim Construction Scope and breadth of claims are determined as a matter of law by first examining the claims in light of the language used in the claims, the specification, and the prosecution history. Parts of File Wrapper? Inventor Testimony?
Patents: Particular Support Claim Charts Determination of whether the infringing activity falls within the scope of the properly construed claims. Probability of Success on the Merits. For each infringed claim, list elements of claims and identify where elements are contained in accused product using images and/or descriptions of accused product.
Patents: Particular Support Anticipate Defenses Invalidity. To overcome presumption of validity, must meet a “clear and convincing” standard. Prior Art? Obviousness?
Trademarks: Particular Support Trademarks • Ownership of Trademarks • Trademarks are Entitled to Protection (Registered, Common Law Use) • Defendant’s Use Is Likely to Confuse Customers • Presumption of Irreparable Harm Upon Showing Likelihood of Confusion
Hearing Oral argument to Judge. May involve live testimony. Court may issue Order from Bench or after consideration.
Success? If preliminary injunction granted, case more likely to settle. If preliminary injunction not granted, case proceeds toward future trial. Opportunity for Plaintiff to further develop evidence to support claims of infringement and damages.