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Cease and Desist/Demand Letters

A cease and desist letter is just one part of infringement litigation. The process can be complex, regardless of whether it is a patent, trademark, copyright, or trade secret case. Whether you are a plaintiff or a defendant, you should work early to develop a strategy.

Before sending a demand letter to an infringer, plaintiffs should carefully consider what the recipient might do. They might do nothing. They might answer the letter by asking for more information, or they might bring an invalidity case in an unfavorable jurisdiction. That may happen even with a letter that makes no cease and desist threat and is merely an offer to license. What could have been a commercial advantage can become a liability.

Those receiving demand letters need to take care, too. Many times, we have seen them ignored. The reaction may be: "that can't be patented" or "we've been doing that for years." The problem is that the evidence may be old, and proving those facts can be tougher than the defendant thinks. Also, a failure to respond can appear to be evidence that the allegations in the letter are accurate. Therefore, ignoring a cease and desist letter can multiply the cost of defense.

Early preparation — and long-term strategic planning — leads to better results. Experience in applying the complex laws of validity, infringement, damages, injunctions, claim interpretation, and the myriad of other defenses is essential. This is true whether the case involves a patent, trademark, copyright, or trade secrets.

Arnold & Saunders has experience and works with other firms to fit the team to the client — whether in contingent fee patent cases, hourly-rate litigation, or a blended structure. Contact us to see what we can do for you.

The United States Patent and Trade Mark Office offers advice about legal lettershere: http://www.uspto.gov/

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