Intellectual property law is supposed to be all about innovation and creativity, so why use tired old clichés when writing about it? Here are five overused terms and phrases that IP lawyers say you should avoid in your next brief.
Along with ownership, proving that a work was actually copied is one of the fundamental requirements for showing infringement under copyright law. Without a finding that the work was copied, a similar but independently created work doesn't amount to copyright infringement.
And in trademark law, evidence a mark was directly copied is helpful in showing not only the necessary similarity of the marks, but also that the defendant acted in bad faith in an effort to confuse consumers about the origins of its product.
In arguing those issues, though, attorneys see one phrase over and over.
"It seems like every trademark or copyright case talks about the defendant as having 'slavishly copied' the IP at issue," said David H. Bernstein, chair of the IP litigation group at Debevoise & Plimpton LLP.
The term is "certainly evocative," he said, but the overuse of adjectives can ultimately "weaken rather than strengthen the writing."
"It is far more effective to establish the bad faith of the copying through compelling described facts," Bernstein said.
Patent law writing is already filled with legal jargon and complex technical language, but some attorneys choose to make it even more clunky than it needs to be.
Case in point: The use of "orthogonal" in claim construction briefs, noninfringement briefs and Daubert motions as a means of claiming an opponent's argument is irrelevant or off-base.
"I find it frequently used in briefs that are already dense with technical or mathematical terms, and the impact to me is to diffuse the point I imagine the writer is trying to make: that an argument is 'irrelevant' or 'unconnected' or 'tangential at best,'" said Sarah E. Barrows, an attorney with Greenberg Traurig LLP.
Bottom line? You're probably better off with using a more straightforward term than the overused buzzword.
"While I have come to understand it is typical math or computer programming jargon, it still sticks in my craw every time I read it," Barrows said.
'David and Goliath'
Trademark cases alleging so-called reverse confusion trademark almost necessarily involve a major size disparity.
The paradigmatic example is a newer, usually commercially dominant user heavily promoting the use of similar mark to the point that it overwhelms the older, usually smaller original brand owner, leading consumers to mistake the rightful priority owner for the newcomer. Think Budweiser copying the name of a small craft brewer and putting Budweiser's version in every store in the country, leading consumers to think the original microbrew is a corporate subsidiary of Big Beer.
Given that fact pattern, it's unsurprising that many reverse confusion plaintiffs will paint their case as one of "David and Goliath," but trademark experts say it makes more sense to explain the allegations rather than reduce them to an overused cliché.
"Identifying it as 'a classic David and Goliath situation' doesn't help the judge understand why your David is entitled to an injunction," said Jane Shay Wald, chair of the trademark group at Irell & Manella LLP.
'Lacked Any Credibility'
Expert witnesses play an absolutely critical role in the technically complex world of patent litigation, so it's no surprise that attacking the credibility of the opponent's experts is a common tactic.
Perhaps an overused one, even.
"You'll frequently see a brief include: 'Defendant's witness was not credible,' or ... often harsher, such as, 'Plaintiff's expert witness lacked any credibility on the claim construction issue,'" said Matthew J. Dowd, a partner with Andrews Kurth LLP.
"That direct phrase is completely overused and lacks effectiveness," Dowd said. "In almost every patent case, expert witnesses are well-qualified and rarely impeached to the point of destroying the credibility."
The better approach is to show that "one expert is more believable than the other expert," instead of tossing around bold and overused attack lines, he said.
"Lawyers could better express themselves by identifying the actual evidence and testimony that demonstrates why the judge or jury should believe one witness over the other," Dowd said.
Like in all litigation, opportunistic arguments on claims construction are ripe for rebuttal, but Kirkland & Ellis LLP partner Amanda Hollis begs that attorneys make the point with slightly more original language than this one.
"People use this to suggest there is something wrong with the other side's proposed construction of a patent claim because it was generated as part of litigation," Hollis said. "But if you think about it, nearly all litigated arguments are 'litigation-induced,' so I find this phrase usually falls flat and is not effective."
As with most overused phrases, the better approach is more nuanced — more "show," less "tell."
"People should consider being more specific about the point they are trying to make," Hollis said. "For example, if there's an inconsistency or difference between the construction being argued in litigation and one that the party presented in another context, say that instead."
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