Intellectual Property Litigation - - BioPharm International

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Intellectual Property Litigation


BioPharm International
Volume 1, Issue 8


AIPLA Report of the 2003 Economic Survey: Median Estimated Total Out-of-Pocket Cost Of Litigation
Discovery, the process by which a litigant may compel parties to disclose information that the litigant can use to prepare its case, typically begins early in litigation. Discoverable subject matter includes information that the other side intends to use to prove its own case, including information regarding how its independent experts plan to testify.

Contrary to depictions in popular culture, litigation in the US is designed to avoid surprises at trial. This can make discovery particularly intrusive. Parties often are compelled to gather and produce truckloads of internal documents, including voluminous electronic records and information, and to make their scientists and other personnel available for hours of questioning at depositions.4 The discoverability of electronic communications can lead to embarrassment, or even the identification of what may appear to be "smoking gun" evidence, because employees often engage in casual conversation using such technologies.

During or after discovery, litigants typically file motions for summary adjudication of those claims or issues that do not need to be decided by a jury because they are not genuinely disputed by the parties. The granting of summary judgment motions narrows the case and often provides settlement leverage to the prevailing party.

As the trial date nears, litigants exchange witness and exhibit lists, argue over what evidence may eventually be shown to the jury (or to the judge, if no jury has been requested by either side), and haggle over how the jury should be instructed regarding the applicable law. During jury selection, each side may usually excuse a handful of candidates without having to articulate any cause. Once the jury is empanelled, the parties are given the opportunity to deliver opening statements, previewing what they expect the evidence will show. Each side next introduces its evidence and calls its witnesses, which are in turn cross-examined by the other side, and then the parties argue the evidence to the jury in closing statements. Final judgments based on jury verdicts are often appealed.

Trade Secret Litigation

Although trade secrets are governed by state law, they are frequently litigated in federal courts when the dispute involves litigants from different states. Federal courts apply state trade secret laws in such circumstances.

Specific requirements vary from jurisdiction to jurisdiction, but a plaintiff alleging misappropriation typically must prove that: (a) it has a protectable trade secret, (b) the defendant acquired knowledge of the trade secret in violation of a duty of confidentiality, (c) there is actual or threatened use, and (d) such use has injured or would injure the plaintiff. Defendants typically argue that the relevant subject matter is not a trade secret and/or that it violated no duty to the plaintiff. Available remedies for trade secret misappropriation generally include injunctions against the defendant, and perhaps also against any third-party recipients of the trade secret information. Damages usually are also available, but they are often difficult to prove. Under many trade secret laws, the prevailing party can recover attorneys' fees in certain circumstances.

A plaintiff typically must disclose the intimate details of its trade secrets during discovery and at trial to prove misappropriation. Similarly, defendants often must disclose their own trade secrets in response to discovery by the plaintiff. These disclosures not only educate opposing parties, which are often vigorous competitors, they also increase the risk that the trade secret will become public via the participants in, or record of, the litigation itself. Litigants must seek permission to make court filings containing trade secret information "under seal" to avoid public disclosure, and they should request to have the courtroom closed to the public at appropriate intervals during trial.

Patent Litigation

Patents are litigated in the biopharmaceutical industry perhaps more often than any other form of IP. Issues of patent validity and infringement are commonly raised in such suits,5 but disputes relating to who invented patented subject matter (and thus who owns the corresponding patent) also arise — especially when there has been some sort of collaboration between organizations.6


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