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Posted: September 04, 2012

This ain’t Judge Judy

IP litigation reality bites

Peter Lemire

A bunch of studies have analyzed the effect of television on the American public. Some of these effects can be beneficial and some of these effects can be detrimental — or at least leave the public with an incorrect perception. 

The effect of the media is more than evident in the legal world. Starting with Perry Mason and then continuing with LA Law, Ali McBeal, The Practice and now, Harry’s Law, Suits and Breaking Bad, the general public has come to believe a certain perception about the American judicial system that is far removed from reality. Ever since law school, I have not been able to watch any legal television show, mainly because Hollywood’s version is so far removed from reality that I find it annoying. I guess it would be similar to an astrophysicist finding it hard to enjoy Star Wars.

The issue is this: Incorrect perceptions can cause problems for business owners that may have unrealistic expectations about the litigation process — what it can do, how long it will take, and how intrusive it can be to one’s business operations. The misperceptions not only cause frustration for a business owner, but can cause real, tangible harm. 

Contrary to popular “TV law,” cases are rarely resolved in an hour, a week or a month. Moreover, shows such as The People’s Court and Judge Judy, (which are actually televised arbitrations), belie the complexities and intrusive nature that are inherent even in simple litigations. In reality, cases take, on average, years to complete and can range in cost from the tens of thousands to millions.

In a recent trademark case we defended, the time from when the plaintiff filed the complaint and the case went to trial was more than two years – and that was considered a pretty quick resolution. For emergency situations, most of the intellectual property (IP) statutes do allow for a plaintiff to seek a preliminary injunction; however one is still talking about weeks to obtain the injunction and the likelihood of success is generally fairly low and the costs can average amount $30,000 to $50,000, not including the bond the plaintiff must post to compensate the defendant if the injunction is issued but the plaintiff fails to win the case. 

If a business owner waits until their business is being severely hurt by an infringer to inquire about their enforcement options, their business may be in jeopardy due to the time lines of federal litigation. This is particularly important in seasonal businesses where one bad season (due to confusion among trademarks or the infringement of a patent) could mean the life or death of a company. 

On the flip side, it may take a while for a defendant to get out of a case, even if there is a strong defense. Soon after the case starts, a defendant can file a motion to dismiss to dismiss claims that were either not brought properly or, given all of the allegations in the complaint if taken as true, the plaintiff still would not have a case under the law.  While motions to dismiss are a handy tool, if a plaintiff’s attorney uses care in drafting the complaint, a motion to dismiss won’t be a real option.

The next chance a defendant will get from the court to “get out” of the case will be to file a motion for summary judgment.  However, summary judgment motions are done after discovery has been conducted – usually after at least a year has gone by and the defendant has spent tens of thousands of dollars defending the case. Unfortunately, a defendant can’t just “get in front of the judge” and get them to dismiss the case. Therefore it is very important to get an attorney involved early on to attempt to avoid being sued, because once a suit is filed, it could be a very long and expensive process before there’s a real possibility of getting out of the case.

It ain’t easy being litigious, nor is it simple, cheap or swift (unlike TV law).

In federal court (where most IP cases are tried) the rules of discovery (what info you have to share with the other side) are construed liberally, meaning that the other side most likely is going to be able to do a bunch of poking around your company. There are certain protections that can be used to protect trade secret or confidential information from being turned directly over to a potential competitor’s business people, but the information will most likely still be turned over for their attorney to review.  Business owners that are looking to enforce their IP rights should expect to turn over large volumes of email and other documentary evidence, sales, advertising data and information concerning their products and their development.

The point here is not to dissuade a company from enforcing its rights through litigation, but instead to set some expectations for the business owner so that litigation may be used as an effective tool. Otherwise, a business owner is left with the perceptions they may get from watching TV, at which point the situation may be past the point where the legal system can offer the immediate relief needed for a company.

So business owners? Turn off the TV. Or watch the game, David Letterman or Fox News — anything but “TV law.”

Peter Lemire is a founding member of the intellectual property law boutique, Leyendecker & Lemire. Leyendecker & Lemire specialize in patents, trademarks and related complex civil litigation. Peter Lemire can be reached directly at 303.768.0641 or peter@coloradoiplaw.com. Visit www.coloradoiplaw.comfor further information, including Leyendecker & Lemire’s weekly blog, “Control, Protect & Leverage.” 

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