On July 18, 2018 Robert Krupka of Krupka Law presented Intellectual Property Litigation topics at CRASH Space. https://blog.crashspace.org/events/intellectual-property-topics/ ___________________________ Agenda Topics: - Patent litigation - IP research and filing strategies - Considerations and legal resources - Licensing - Patent infringement - Patent trolls - Lessons learned from IP litigation - Public health and patents ___________________________ Robert Krupka of Krupka LawDescribed as “One of the top trial lawyers in the country,” Bob tried over 75 cases to judgment, including 18 jury trials to verdict, during his 39 year career at Kirkland & Ellis LLP. Teams he led obtained verdicts totaling over $1 billion and recovered over $3 billion in settlements, including one of the largest patent settlements in history – $1.35 billion. He worked for top Fortune companies and highly innovative individuals on trials involving myriad technologically complex subject matters ranging from software to semiconductors, chemical processes to computers, and smart phones to pharmaceuticals. Bob now acts as an advisor on complex business, intellectual property, and litigation issues. Bob’s trial and appellate experience yields creative solutions to unusual challenges, jury trials, and appeals.

1. Intellectual Property
Litigation
Bob Krupka
Krupka Law Group, P.C.
(c) 2018 Krupka Law Group, P.C.

2. What I Have Been Asked to Cover:
• Patent litigation:
o IP research and filing strategies
o Considerations and legal resources
o Patent infringement
o Patent trolls
o Licensing
o Lessons learned from IP litigation
• Public health and patents
(c) 2018 Krupka Law Group, P.C.

3. IP Litigation Basics
Intellectual Property maps to the intangible assets – the inventions, works, valuable information and “good will” – embodied in physical assets or offerings. There are
multiple ways in which to protect ownership over such intangible assets, including:
Patent Rights
• Protect inventions – the application of a new, useful, non-obvious idea
• Prevent others from unlicensed making, using, importing, and selling, even if independently developed
Trade Secret Rights
• Protect business secret information that provides a competitive advantage
• Prevent others from misappropriation, use, or sale, unless independently developed
Copyrights
• Protect works of authorship, including source code, manuals, written procedures, etc.
• Prevent others from making an identical or substantially similar copy of non-functional,
non-factual expression
Trademark Rights
• Protect the marketplace goodwill associated with a word, design or logo
• Prevent others from using a similar mark in the marketplace
These rights are not mutually exclusive:
• A given asset may be protected by any and all of these types of IP
• And a given feature of asset (i.e., an innovative process) can be protected by more than one strategy (i.e., patent and trade secret)
• Early strategic decision must be made as to which protections will be pursued as each requires different steps
IP
Rights
Patents
Copyrights
Trademarks
Trade
Secrets
(c) 2018 Krupka Law Group, P.C.

4. Patent litigation:
IP research and filing strategies
Considerations and legal resources
• Which Court(s)
• Federal court only for Patents and Copyrights
• Federal or State courts for Trade Secrets and Trademarks
• Some evidence of infringement required before filing
• Pick target(s) carefully and gather as many facts as possible first
• Decide what result(s) you need/want before starting
• Litigation is expensive - $0.5 - $10 Million
• But contingent fee firms and litigation funding options are available
• Litigation usually slow: 1-5 years to get to trial; appeals take 1-3 years
(c) 2018 Krupka Law Group, P.C.

5. IP Litigation:
Patent Trolls
Licensing
• Trolls:
• Non-practicing entities that seek less that litigation cost license fees in lieu of trial
• Not all NPEs are Trolls: e.g. Universities and Nonprofits
• Congress and courts have succumbed to demands to hamper trolls
• restricted venue
• limits on joining multiple alleged infringers in one suit
• increased availability of attorneys fees if claims deemed unfounded
• Licensing
• “Efficient Infringement” has all but killed licensing without filing a lawsuit
• Accused infringers reluctant to license technology unless competitors also license
because they would be at a competitive disadvantage
(c) 2018 Krupka Law Group, P.C.

6. IP Litigation:
Lessons learned from IP litigation
• Well informed Cost vs. Benefit analysis critical
• financial costs
• business/personal costs
• Meticulous preparation necessary before seeking license/ filing suit
• Must be prepared to stay the course
• adequate funding
• willing to weather business disruption
• Start and stay with realistic expectations
• pigs get fat, hogs get slaughtered!
(c) 2018 Krupka Law Group, P.C.

7. Public Health and Patents
• Innovation is spawned by incentives
• altruistic
• financial
• Most medicines and medical devices are regulated by the
government
• regulatory costs and delays are unavoidable
• once approved, others would be able to “free ride” but for IP protection
• without IP, few, if any, would risk capital to get approval
• without IP protection, medical innovation would stop
(c) 2018 Krupka Law Group, P.C.