News from Campolo, Middleton & Associates, LLP

Patent Infringement and Remedies
by Eryn Y. Deblois, Esq.

Infringement of a patent consists of the unauthorized making, using, offering for sale, selling, or importing into Deblois

the United States any patented invention during the term of the patent. An individual may also indirectly infringe on a patent by actively inducing infringement or by knowingly selling a product knowing it to be especially made or adapted for use in an infringement of a patent. Once a patent owner has successfully proven patent infringement, there are several forms of relief available. Such relief can include injunctive relief, monetary damages in the form of lost profits and royalty-based damages, and in exceptional cases, attorneys' fees, costs and punitive damages.

The claims of a patent define the scope of coverage against an infringer. An infringement analysis would determine whether a claim in a patent literally "reads on" an alleged device or process, or covers the alleged device under the doctrine of equivalents.

There are generally two categories of patent infringement: literal infringement and infringement under the doctrine of equivalents. Literal infringement means that each and every element recited in a claim is identical in the allegedly infringing device or process. When there is no literal infringement, a claim may be infringed under the doctrine of equivalents if some other element of the accused device or process performs substantially the same function, in substantially the same way, and it achieves substantially the same result.

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Contractor and Municipality Defenses in Trip
and Fall Cases
by Lauren D. Kanter, Esq.

A municipality's failure to repair a worn or damaged sidewalk can undoubtedly lead to liability in certain circumstances. Kanter

However, during the period in which such repairs are being conducted, municipalities can unknowingly expose themselves to liability in other ways.

If the need for access to a particular roadway is great, a municipality may choose to keep it open to the public even while it is undergoing repairs. When a plaintiff is injured in these work zones, the municipality and the contractors become obvious defendants. Whether liability will stick, however, is not as simple.

The 1924 Court of Appeals case Ryan v. Feeney & Sheehan Building Co., 239 N.Y. 43, provides that a contractor may rely on the plans and specifications they were hired to follow, unless they were so defective that their likelihood to cause injury was obvious. Under this rule, a contractor can shield him or herself from liability if they have not designed or engineered the plans that led to the plaintiff's injury, but were simply performing the work as instructed by the property owner.

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