Minnesota Lawyer
“Disputes involving intellectual property and technology are often complicated, posing complex procedural challenges with outcomes that are often critical to success or harm to a business. Because of the importance and complexity of the issues, litigation can go on for years as they work through various administrative layers” Cotter said.
Cotter has observed some interesting trends in different areas of his practice. “In patent litigation, judges get reversed more than they like,” said Cotter. “The America Invents Act, passed in 2011, was supposed to create a faster and cheaper road for patent litigation. However, many cases now go on for years and years. Parties have multiple opportunities to defend a case based on different theories and all of this adds to the complexity of the cases and makes patent cases more challenging for patent owners.”
The Patent Trial and Appeal Board (PTAB) was formed in 2012 as an alternative to federal courts for patent disputes, but some feel this is only adding to the challenges.
“Losing an intellectual property or technology lawsuit can irreparably damage a company’s competitive position. Because of the importance and complexity of the issues, and the forums in which the cases are heard, it’s important to have lawyers who are well-versed in intellectual property and technology,” Cotter said.
There are many antitrust cases that are plaintiff class actions, Cotter said. “They’ve had some success, particularly in the food area.” Cotter thinks that’s a trend that is going to continue, although some companies will opt out. Most are federal claims under the Sherman Act, and may include state law claims, sometimes called little Sherman Acts.
Cotter observed that President Joe Biden’s administration is looking into the concentration of industries, including agriculture in the Midwest. There’s more scrutiny of mergers and acquisitions and also anticompetitive practice. If a small number of businesses control a market, that’s an oligopoly and may be illegal as a restraint on trade, he said.
