We focus on commercial litigation, with a particular emphasis on intellectual property litigation and technology law.
When there is a breakdown in communication between parties, litigation oftentimes becomes necessary. We view litigation as the last recourse available to a party after having exhausted all other pathways to an amicable resolution.
While we do not advocate for litigation at the first sign of conflict between parties, we do not hesitate to initiate the judicial resolution process once it is deemed in our client’s best interest to do so.
It is best to involve an experienced commercial litigation team early in the process when a business faces litigation or threat of a lawsuit
Effective commercial litigators need to be able to quickly assess the merits of a dispute and plan either a prosecution or defense that fits the legal and business needs of the client. Efficiency, creativity, and sound judgment are critical for intelligently positioning these disputes.
Critical eye for details
Having a commercial litigator coordinate and oversee the gathering of evidence, the retaining of appropriate experts, and the preserving of relevant evidence is key to a successful outcome.
When businesses are involved in a dispute, the lawsuit is generally known as commercial litigation. Commercial litigation is different from civil lawsuits due to involvement of businesses rather than individuals, and because issues are very specialized and typically more complex.
General commercial litigation involves virtually every type of dispute that can arise in the business context, including breach of contract cases, partnership/joint venture disputes, class actions, business torts, fraud claims, breach of fiduciary duty allegations, and shareholder issues.
Alternative Dispute Resolution
Clients choose Lloyd & Mousilli because our litigation practice is led by lawyers who can actually try cases. While we do not believe every case should go to trial, we do believe every case gains a competitive advantage from a trial-ready approach.
Lloyd & Mousilli believes that leveraging the unique perspective of a trial lawyer is also the most powerful positioning tool for achieving the best possible solution in arbitration, mediation, negotiation, or other Alternative Dispute Resolution (ADR) forum. We have the comprehensive experience and knowledge required to successfully present the most complicated cases to judges, juries, mediators and arbitration panels.
Clients count on us for pragmatic legal advice that is the most beneficial to their reputation, business, and bottom-line. With this in mind, Lloyd & Mousilli considers the use of ADR to be an integral part of the practice of law and actively includes ADR in the evaluation of possible options for resolving all disputes.
Very early in the evaluation of the case, our lawyers have the depth of recent first-hand experience required to identify the primary issues of law and fact, provide reliable jury outcome scenarios, and develop realistic ADR options. The ADR experience of our litigation attorneys also eliminates the additional costs to clients that result when a dispute is transferred from the litigation team to a separate ADR team which must be brought up to speed on the case.
Our litigators are committed to principled and creative conflict avoidance, management and resolution. As a result, our approach to dispute resolution encompasses a full range of resolution options, including negotiation, litigation, arbitration, mediation and customized ADR options. When a dispute arises, we work closely with each client to assess the dispute and decide whether a particular dispute should be resolved through litigation, negotiation, or ADR. Our attorneys focus on the rights and the interests of the parties, the relationships, and the desired outcomes. Our analysis recognizes that the underlying business interests are as important to clients as our legal rights.
For many disputes, ADR can be a valuable tool to resolve disputes early, cost-effectively and expeditiously, while providing enhanced privacy, confidentiality and the preservation of relationships. Most importantly, with ADR, the parties have greater control over the process and the outcome. The process of mediation, in particular, offers creative business solutions not available in either litigation or arbitration. Through sophisticated ADR strategies and techniques, we can save time and money for our clients and help them achieve solutions to disputes consistent with the objectives of their business.
Intellectual property is a term that describes the property that is developed through an intellectual and creative process. Intellectual property includes trade secrets, patents, copyrights, and trademarks. These intangible rights are of incredibly significant value to companies in the United States and globally as well.
Intellectual property rights are fundamental rights. When drafting the Constitution of the United States of America, the founding fathers provided for protection of the work of inventors and writers. Article 1, Section 8, of the Constitution gives Congress the power “to promote the Progress of Science and Useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.”
The American tradition of protecting intellectual property rights has created and nurtured the American tradition of innovation. The fundamental concept behind protecting intellectual property is that inventors, innovators, artists and others should be able to enjoy the fruits of their creativity and labor for a specified time period, after which the material becomes available for public use.
Federal law provides robust protections for intellectual property rights, such as trade secrets, patents, copyrights, and trademarks. Certain federal statutes provide for either civil damages or criminal penalties or both to be assessed against infringers of patents, copyrights, and trademarks. Federal and state law imposes civil damages or criminal penalties or both against those who misappropriate trade secrets.
Intellectual Property Litigation
Intellectual property litigation involves disputes relating to the protected creations of the human mind, including discoveries, inventions, artistic works, processes, and products. Because intellectual property is protected by federal and state laws, these disputes are litigated in both court systems, as well as by arbitration and other alternative dispute resolution forums.
Your intellectual property – patents, trademarks, copyrights, trade secrets and more – can be a sword or a shield.
You may be accused of infringing a patent in which case you need to understand your options and, potentially, mount a winning defense; that’s the “shield” part.
Alternatively, you may have worked hard to develop intellectual property important to your success, and it may have been taken by a competitor, in which case you may want to sue for damages or to stop them from using your intellectual property; that’s the “sword” part.
Either way, we can help.
Patent infringement refers to the unauthorized use of a patented invention, at which point litigation can arise. Patent litigation—which covers inventions on designs and products, as well as the process through which they are manufactured or used—is like no other kind of litigation.
A process unique to patent litigation called claim construction, which culminates in a “Markman Hearing,” requires expertise and experience to navigate. A Markman Hearing is a pretrial hearing during which a judge examines evidence from all parties on the appropriate meanings of relevant keywords used in a patent claim. Markman hearings are important, since the court determines patent infringement cases by the interpretation of the claims. A Markman hearing may encourage settlement, since the judge’s claim construction finding can indicate a likely outcome of the patent infringement case as a whole. Without a successful Markman outcome, a successful trial is unlikely.
As licensed patent attorneys and seasoned litigators, we are able to build and support claim construction theories and describe the subject matter to judges in easy-to-understand ways.
Trademarks can also be infringed. A trademark can be a symbol, logo, word, sound, color, or name that identifies the source of a product and distinguishes it from that of others.
Trademark litigation is deceptively simple. The basic questions are: who started using the marks first, and is the later use likely to confuse customers. However, the traps for the unwary are legion. How much overlap in the type of goods and geography of use is there? Is the senior mark “incontestible?” You need an attorney who understands all these angles and many more.
Copyrights protect works of authorship, such as writings, music, and art. Copyrights grant holders exclusive rights to use their works, and an unauthorized use can lead to litigation.
Registration is the key to the courthouse with copyrights. After that, the various tests needed to show copying and how to prove them are subtle. Copyright damages are complex, and knowing how to deal with them can make all the difference in a case. We can guide you through the thicket of rules and precedents.
Trade secrets are information that businesses keep secret to give themselves a competitive advantage over competitors. Trade secrets may be product formulas, patterns, designs, compilations of data, software algorithms, source codes, customer lists, supplier lists, ingredients, proprietary information, manufacturing processes, or other business secrets. Many trade secrets do not qualify to be—or simply are not—patented, copyrighted, or trademarked.
The owner of a trade secret is obliged to take all reasonable precautions to prevent that secret from being discovered by others. If the owner fails to take such actions, the secret is no longer subject to protection. Precautions to protect a trade secret may include placing locks on doors, utilizing secure password-protected networks and databases, insisting on non-disclosure agreements with third-parties to whom information is shared, including confidentiality provisions in employment agreements with employees and the like.
Federal and state laws allow the owner of a trade secret to bring a civil lawsuit for misappropriation against anyone who steals a trade secret. For the lawsuit to be actionable, the defendant must have obtained the trade secret through unlawful means, such as theft, bribery, or industrial espionage.
More than 80% of trade secrets that are stolen are taken by employees and departing employees or business partners. Competitors often target another company’s trade secrets, too.
In situations where trade secret theft is suspected, companies should promptly seek legal advice from counsel to assess the strengths and weaknesses of potential claims, including seeking immediate relief through a temporary restraining order. As time is of the essence to protect trade secrets against disclosure and misuse once they have been misappropriated, strategic planning and proper tactical decisions by experienced attorneys is key.