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Intellectual Property Law: Damages and Remedies
Incisive Media, Pages: 700
PART 1
RECOVERY OF MONEY DAMAGES
CHAPTER 1
Introduction to Monetary Damages
1.01 Introduction
1.02 Historical Background to Monetary Damages
1.03 General Principles of Monetary Damages
[1] Determining Whether Injuries May Be Compensated by Damages
[2] Calculating the Damages Award
CHAPTER 2
Copyright Infringement Damages
2.01 Introduction
2.02 Recovery of Monetary Damages
[1] Actual Damages Attributable to the Infringement
[2] The Infringer's Profits Attributable to the Infringement
[3] Statutory Damages
[4] Extraterritorial Damages
[5] Interaction of Copyright and Contract Damages
CHAPTER 3
Patent Infringement Damages
3.01 Introduction
3.02 Lost Profits
[1] Statutory Basis for Lost Profits Damage Awards
[2] The Standard of Proof
[3] Proving Causation
[4] The Panduit Test and Its Progeny
3.03 Quantifying Lost Profits
[1] Price Component
[2] Costs
[3] Taxes
[4] Infringer's Profit Margin
[5] Split Awards
[6] Experts
3.04 Profits on Non-infringing Products
3.05 Apportionment
[1] When Applicable
[2] When Not Applicable
[3] Difficulties with Apportionment
3.06 Review of Lost Profits Awards
3.07 Established Royalty
[1] The Established Royalty Criteria
[2] Minimum or Maximum Recovery
3.08 Reasonable Royalty
[1] The Hypothetical Negotiation
[2] Provisional Rights
3.09 Special Damages Cases
[1] Design Patents
[2] The United States As Infringer
[3] The State Infringer
3.10 Collateral Assessments
3.11 Limitations on Award of Damages
[1] The Six-Year “Lookback”
[2] Marking
[3] Laches
[4] Double Recovery
CHAPTER 4
Trademark Infringement Damages
4.01 Introduction
4.02 When Monetary Damages Are Available
[1] Historical Development of Monetary Damages for Trademark Infringement
[2] The Contemporary Rule on Monetary Damages for Trademark Infringement
4.03 Recovery of Monetary Damages
[1] Actual Damages Attributable to the Infringement
[2] Reasonable Royalty
[3] The Infringer's Profits
[4] Statutory Damages for Counterfeiting
[5] Statutory Damages for Cybersquatting
CHAPTER 5
Damages for the Misappropriation of Trade Secrets
5.01 Introduction
5.02 Reasonable Royalty Under Section 2 of the Uniform Trade Secrets Act
5.03 Damages Under Section 3 of the Uniform Trade Secrets Act
[1] Actual Loss
[2] Unjust Enrichment
[3] Reasonable Royalty
5.04 Limitations on Damage Awards
[1] Equitable Limitations
[2] Temporal Limitations
5.05 Review of Damage Award
CHAPTER 6
Remedies for Internet Infringement
6.01 Introduction
[1] The Internet and the World Wide Web
[2] Intellectual Property Infringement on the Internet
[3] Infringement and Internet Service Providers
6.02 Copyright Infringement on the Internet
[1] Types of Infringement
[2] Remedies
6.03 Trademark Infringement and Dilution on the Internet
[1] Types of Infringement
[2] Remedies
6.04 Trade Secret Infringement on the Internet
[1] Generally
[2] Unauthorized Disclosures of Trade Secrets on the Internet
CHAPTER 7
Augmented Damages
7.01 Introduction
7.02 Augmented Damages for Copyright Infringement
[1] Increased Damages under the Copyright Act of 1976
[2] State Law Claims
7.03 Augmented Damages for Patent Infringement
[1] Increased Damages Under the Patent Act
[2] Willful Patent Infringement
[3] Procedural Issues
[4] Amount of Increased Damages
7.04 Augmented Damages for Trademark Infringement
[1] Increased Damages Under the Lanham Act
[2] Factors
[3] Procedural Issues
[4] Amount of Increases
[5] Increased Damages for Trademark Counterfeiting
[6] State Law Claims
7.05 Augmented Damages for Trade Secret Misappropriation
[1] Increased Damages Under the Uniform Trade Secrets Act
[2] State Laws Claims
CHAPTER 8
Recovery of Attorneys' Fees and Costs
8.01 Introduction
8.02 The “American Rule”
8.03 Statutory Basis for Recovery of Attorneys' Fees in Intellectual Property Litigation—Historical Development
8.04 Award of Attorneys' Fees Under the Copyright Act of 1976
[1] Registration as a Prerequisite
[2] Prevailing Party Defined
[3] Awards to Defendants
[4] Awards in the Court's Discretion
[5] Reasonable Fees
8.05 Award of Attorneys' Fees Under the Patent Act
[1] Prevailing Party
[2] “Exceptional” Cases
[3] Discretion
[4] Reasonable Attorneys' Fees
8.06 Award of Attorneys' Fees in Trademark Litigation
[1] Prevailing Party
[2] “Exceptional” Cases
[3] Discretion
[4] Trademark Counterfeiting
[5] Reasonable Attorneys' Fees
[6] Attorneys' Fees on Appeal
8.07 Award of Attorneys' Fees in Trade Secret Litigation
[1] Special Circumstances
[2] Discretion
[3] Reasonable Fees
8.08 Award of Attorneys' Fees Against the United States
8.09 Costs
[1] Expert Witness Fees
[2] Other Expenses
CHAPTER 9
Interest on Monetary Awards
9.01 Introduction
9.02 Prejudgment Interest
[1] Under the Patent Act
[2] Under the Copyright Act
[3] Under Trademark Law
[4] Under the Uniform Trade Secrets Act
9.03 Postjudgment Interest
[1] Federal Cases
[2] Misappropriation of Trade Secret Cases
PART 2
STOPPING FURTHER INFRINGEMENT
CHAPTER 10
Introduction to Nonmonetary Remedies
10.01 Introduction
10.02 Historical Background to the Development of Equity
10.03 General Principles of Equity
[1] Procedural Aspects of Equity
[2] Remedial Aspects of Equity
10.04 Nonjudicial Remedies
[1] The Customs Service
[2] The International Trade Commission
CHAPTER 11
Injunctive Relief in Intellectual Property Cases
11.01 Introduction
11.02 General Federal Statutes, Rules and Case Law Governing Injunctive Relief
[1] Preliminary Injunctions
[2] Temporary Restraining Orders
[3] Prohibitory, Mandatory and All-Relief Injunctions
[4] Bond Requirement
[5] Remedies for Violations or Improper Grant of Injunctions
[6] Permanent Injunctions
[7] Appeal of Injunctive Relief
11.03 Injunctive Relief Under the Copyright Act
[1] The Presumption of Irreparable Harm
[2] Factors to Consider in Analyzing Irreparable Harm
[3] Preliminary Injunctions
[4] Temporary Restraining Orders
[5] Permanent Injunctions
11.04 Injunctive Relief Under the Patent Act
[1] The Presumption of Irreparable Harm
[2] Factors for Analysis of Irreparable Harm
[3] Preliminary Injunctions
[4] Temporary Restraining Orders
[5] Permanent Injunctions
11.05 Injunctive Relief Under the Lanham Act
[1] The Presumption of Irreparable Harm
[2] Factors for Analysis of Irreparable Harm
[3] Preliminary Injunctions
[4] Temporary Restraining Orders
[5] Permanent Injunctions
11.06 Injunctive Relief Under the Uniform Trade Secrets Act
[1] The Presumption, or Lack of Presumption, of Irreparable Harm
[2] Factors for Analysis of Irreparable Harm
[3] Preliminary Injunctions
[4] Temporary Restraining Orders
[5] Permanent Injunctions
CHAPTER 12
Exclusion of Infringing Products from Importation and Other International Trade Remedies
12.01 Introduction
12.02 Problems in Extraterritorial Enforcement
[1] Different Perceptions of Intellectual Property Abroad
[2] Difficulties in Obtaining Adequate Remedies Against Intellectual Property Infringement Abroad
12.03 Exclusion by Customs
[1] Imported Products Infringing a United States Patent
[2] Imported Products Infringing a United States Trademark
[3] Imported Products Infringing a United States Copyright
[4] Imported Products Infringing a Trade Name/Trade Style
[5] Customs' Dissemination of Information to the Field
12.04 Remedies Against the Importation of Gray Market Goods
[1] Definition of Gray Market Goods
[2] Trademarks
[3] Copyright
[4] International Trade Commission Remedies
12.05 Exclusion of Infringing Merchandise Pursuant to an Order Issued by the United States International Trade Commission Under Section 337 of the Tariff Act of 1930, as Amended
[1] Introduction to Section 337 Proceedings
[2] Exclusion Orders
[3] Cease and Desist Orders
[4] Modification or Revocation of Exclusion or Cease and Desist Orders
12.06 Other International Trade Remedies for Intellectual Property Rights Violations
[1] Section 301
[2] The World Trade Organization (WTO)
[3] The North American Free Trade Agreement
CHAPTER 13
Civil Raids and Seizures
13.01 Introduction
13.02 Civil Seizures in Copyright Litigation
[1] The Copyright Act of 1976
[2] The Copyright Rules of Practice
13.03 Civil Seizures in Trademark Litigation
[1] Seizures in Ordinary Trademark Litigation
[2] Ex Parte Pretrial Seizures in Trademark Counterfeiting Litigation
13.04 Civil Seizures in Trade Secret Cases and Other State Law Remedies
[1] Trade Secret Cases
[2] Other State Law Remedies
13.05 Establishing the Required Facts to Obtain a Civil Seizure Order
[1] The Infringement Has Taken a Particular, Tangible Form
[2] The Infringement is Occurring Within the Jurisdiction of the Court
[3] The Infringement Will Continue Absent a Seizure Order
[4] The Harm to the Intellectual Property Owner Can Be Halted by a Seizure Order
13.06 Constitutional Issues in Civil Raids and Seizures
[1] Due Process Concerns
[2] Unreasonable Search Concerns
13.07 Destruction and Other Disposition of Infringing Articles
Index
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