Author: Richard Allan Horning*
Published: December 1998
Costs and Damages
Interim Measures Relating to Property
Description: The ability of an injured party to have recourse to a decision maker for orders for relief of an interim nature is an important element in the protection of intellectual property. The “first mover advantage,” and the “law of increasing returns,” place a high premium on the ability of the owners of intellectual property rights to quickly fence out infringing rivals. This is particularly true where the enterprise exceeding licensed rights to technology and thereby infringing patents, copyrights, trademarks, trade secrets or other forms of licensed intellectual property is new and marginally capitalized, in that its assets are likely to be difficult to reach in execution on a monetary award or judgment, or where the continuing effect of the infringement will be hard to detect and thus difficult or impossible to quantify in monetary terms. In intellectual property disputes there is also always a concern that the infringing party might place important evidence beyond reach, by alteration, spoliation, transfer or subterfuge, or that the infringer will retransfer the technology to third parties. The Silicon Valley shibboleth, “Speed is God, and time is the instrument of the devil,” sums up the entrepreneur’s perspective rather nicely: quickly obtained injunctions and other relief orders are often the only real remedy.
The national courts typically have a defined and developed procedure for hearing and determining pleas for interim relief. The clerk’s office maintains customary business hours for the filing of papers in initiation of the proceedings, and in emergencies the court can be approached directly after hours.
*Partner, Tomlinson Zisko Morosoli & Maser LLP, Palo Alto, California. B.A. University of California, 1966; J.D. Duke University School of Law, 1969. The views expressed are those of the author. The author wishes to acknowledge, with appreciation, the assistance of Benjamin Gluck, a student at Stanford Law School, Stanford, California, in the research and preparation of this paper.