1. Executive Perspective for Scientists & Engineers (EPSE) A Real World Look at IP Infringement Randall K. Broberg, Esq. April 8, 2013

2. Patent Infringement compare the accused product or process with each and every element (feature) of a claim of the patent. You don’t compare plaintiff’s and defendant’s products! Infringement Litigation is Very expensive Can Take years Parties often settle with licensing agreement

3. Types of Patent Infringement Direct infringement Contributory Infringement –Accused component has no non-infringing use Inducing Infringement –inducing, causing or materially contributing to another’s infringing conduct with knowledge of infringing activity

4. Trademark Infringement prevents using the same or similar marks. Must Enforce Trademark Rights or lose them

5. Likelihood of Confusion: Factors Similarity of marks Similarity of goods or services trade channels Strength of marks Use of similar marks by third parties Intent of infringer Evidence of confusion

6. Trademark Infringement Defenses Generic ness Functionality Abandonment Non trademark use Parody

7. Copyright Infringement protects against copying (access and substantial similarity), not independent development. does not protect ideas, only expressions Morphed copies still infringe

8. Copyright Infringement Defenses Permission (license) Originality/Independence Public domain Not a “copy”

9. FAIR USE: examples “fair use” –Criticism, comment, parody, news reporting, teaching, scholarship or research –Performances and displays in classrooms or distance learning –Backup copies –Reformatting for the blind or other disabilities –Time shifting

10. Fair Use Factors The purpose and character of the use –commercial –nonprofit –educational; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole Extent of harm/the effect of the use upon the potential market for or value of the copyrighted work.

11. Trade Secret Misappropriation Protects against use by competitors only when the secret was acquired by “improper means”: –industrial espionage; –breach of NDA; –employees and former employees

12. Misappropriation Elements existence of a trade secret; acquired through a confidential relationship or through improper means; used or disclosed without the owner’s authorization; and Damages.

13. Ensuring “Freedom to Operate” “clear path” pursue one’s business without infringing the intellectual property rights of others clearance studies around its core or platform technology to ensure that there are no third party patents that would constrain the Company’s activities Monitor the patents of competitors