Legal issues involving domain names also create business for IP lawyers. “People register a name and then hold it hostage.” Mayback says. Or, they chose a domain name that’s close to one that already exists, which he often addresses with a cease and desist letter. “If they are close but not exact, you may still want to stop them,” he says. Sometimes, the resemblance is intentional and opens the door for what IP attorneys call “cyber squatting.”
At Morgan Lewis & Bockius in Miami, Derek Leon says he has represented businesses in their efforts to shut down these cyber squatters or operators of online sites that use tricky domain names to draw customers into buying counterfeit goods. “Luxury retailers like Coach or Gucci are getting aggressive about prosecuting these cases,” Leon says.
Beyond Internet-related legal issues, intellectual property law firms are hiring new attorneys and report a high demand from clients pursuing applications with the U.S. Patent and Trademark Office, a trend that extends to Florida attorneys. “Our clients have trademark and patent applications in process in 60 countries including Cuba,” says Espinosa.
Mayback says South Florida’s large medical community opens the door for patent work for his firm. He represents physicians seeking patents for medical devices or medical procedures. “They are hoping to patent their product and sell it to big companies.” One example involves a client who is trying to obtain patents to detect counterfeit disposable parts that could be used with medical devices. At the same time, Mayback helps companies protect their patents, most recently prevailing in a lawsuit against a counterfeit manufacturer of tote bags for which his client has a design patent.
Along with new applications, patent litigation has surged to an all-time high. The number of patent infringement filings shot up by 22 percent during 2011, compared with the year before, reaching the highest level yet recorded, according to a study released in September by PricewaterhouseCoopers. The study found suits were widespread and related to technology-based patent as well as infringement of pharmaceutical and other life sciences patents.
Leon says South Florida has seen an uptick in patent litigation in 2012 because of aggressive trial date scheduling by federal judges. Companies prefer to file here, he says, because the perceived “rocket docket” puts pressure on defendants to begin settlement talks.
South Florida IP lawyers say they’re also busy fighting off patent infringement lawsuits from non-practicing entities, commonly called "patent trolls." These entities usually don’t actually buy or sell goods, but rather own portfolios of licenses and patents and sue companies for using their idea without paying royalties or licensing fees.
Boutique IP South Florida firm Assouline & Berlowe defends clients who have been sued by non-practicing entities. “With these lawsuits, it’s more about negotiating licensing rights than the classic injunction to shut down operations in a big patent dispute like we saw with Apple and Samsung,” says Eric Assouline.
Assouline says the digital explosion has affected traditional patent litigation by encouraging venue shopping. Because most companies now maintain a national online presence, they can be sued for patent infringement in any federal court in the country. “Companies are deciding where to bring suit by identifying the courts that have had more favorable plaintiff rulings and awards.”
Going forward, Assouline raises concerns about the future expense of litigating a patent dispute because of the reams of electronic evidence that now accrues: voicemails, emails and digital photos. Managing the costs of sifting through the electronic evidence can be time-consuming and expensive. “My concern is how is anyone but a big company going to be able to afford litigation in a complex intellectual property case in the future?”