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Law Office of Marc D. Machtinger, Ltd.

Questions & Answers

Our Services:

Mr. Machtinger is an experienced Intellectual Property Attorney, providing the following professional services related to Litigation:

  • Free initial telephone consultations.
  • Enforcement of intellectual property rights.
  • Evaluation of intellectual property claims.
  • Defense against intellectual property causes of action.
  • Negotiations.
  • Discovery matters.
  • Preparation of and responses to cease and desist letters.
  • Counseling related to litigation matters.
and to these other legal services:
  • Licensing and assignment of intellectual property rights.
  • Confidentiality/non-disclosure agreements, non-compete agreements.
  • Unfair competition matters.
  • Incognito infringement investigations.
Questions and Answers about Litigation What are the first steps typically taken when a dispute arises, prior to litigation?

How is a lawsuit initiated?

What happens after the defendant files its answer?

What happens during trial?

How does the federal court system work?

How does the state court system work, particularly in Illinois?
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What are the first steps typically taken when a dispute arises, prior to litigation? Initially, when a party believes it has been harmed and seeks legal assistance, the attorney will conduct a preliminary evaluation of the matter. In the context of Intellectual Property, the party may feel that its rights have been infringed. The attorney representing this party will typically send a "demand" letter or "cease and desist" letter to the alleged infringer informing them of the believed infringement, and requesting a response. The alleged infringer may seek legal representation, and its counsel will evaluate the matter and respond to the demand letter. This evaluation may require an analysis of the file history of a patent, a registered mark, or other relevant material. At times, a settlement can be negotiated without any further proceedings. However, if the parties cannot reach agreement at this stage, the harmed party may choose to file a lawsuit if believed appropriate.

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How is a lawsuit initiated? A lawsuit is initiated when the plaintiff files a complaint with the appropriate court. A summons is issued, and the complaint and summons are served on the defendant. The defendant is required to answer the complaint. The answer consists of admitting or denying the facts and allegations set forth by the plaintiff, and possibly asserting affirmative defenses and counterclaims against the plaintiff. The court may schedule an initial status hearing. If no answer is filed by the defendant, a default judgment may be entered in favor of the plaintiff. In a lawsuit for infringement, a schedule for the "discovery" process is typically set at the hearing.

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What happens after the defendant files its answer? Once the defendant has responded to the complaint, a process called "discovery" begins. This is the process by which the plaintiff and defendant learn information about the facts and claims of the opposing party. Tools used in the discovery process include document requests, interrogatories, requests for admission, and depositions. The discovery process in intellectual property litigation can be very laborious and time consuming. Many courts have requirements for the parties to discuss settlement prior to trial. Often settlements are reached following discovery without the need for the suit to proceed to trial.

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What happens during trial? If a trial is commenced, parties will present evidence to the court using exhibits and witnesses. Expert witnesses may be called to testify in specialized matters. The finder of fact at the trial may be a judge or a jury, depending on the requests of the parties and the issues presented. The option for settlement is always available to the parties. Once the trial is over, a judgment is entered by the court. In infringement matters, the potential remedies available to a plaintiff include monetary damages as well as an injunction to prevent the defendant from further infringing activity. The losing party will have a limited time period to appeal the decision if desired.

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How does the federal court system work? The federal court system is a three level system consisting of:

The U.S. District Courts are courts of original jurisdiction. Cases involving disputes arising from federal law, or diversity jurisdiction (parties residing in different states) are initiated in the U.S. District Courts. All cases involving patents, copyrights, and federally registered trademarks are originally filed with the U.S. District Courts. The U.S. District Courts preside over geographical regions formed of a state or portions of a state. For example, Illinois is divided between the U.S. District Courts for the Northern District, Central District, and Southern District of Illinois.

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The U.S. Circuit Courts of Appeals hear appeals from the U.S. District Courts. These Courts of Appeals include 12 geographic circuits and 1 additional circuit, the Federal Circuit, for particular subject matter areas. If an appealed case involves patent matters or certain other subject matters, the appeal is heard by the U.S. Court of Appeals for the Federal Circuit. Appeals from the U.S. Patent and Trademark Office are also heard by the Federal Circuit. Otherwise, appeals are taken by the U.S. Circuit Court which presides over the geographic region covering the District Court where the case originated. These Circuit Courts each cover regions consisting of several states or territories (See Map of U.S. Circuit Courts of Appeals). For example, the U.S. Court of Appeals for the Seventh Circuit presides over Illinois, Indiana, and Wisconsin.

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The Supreme Court of the United States is located in Washington, D.C. and consists of nine justices appointed by the President and approved by the Senate. This highest court will hear a limited number of appeals from the Circuit Courts of Appeals, and has original jurisdiction in certain cases.

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How does the state court system work, particularly in Illinois? Most states have a three-tiered court system. In Illinois, the three levels consist of:
    1. Twenty-two (22) Circuit Courts (or trial courts)
    2. Five (5) Appellate Courts
    3. The Illinois Supreme Court

The Circuit Courts are courts of general jurisdiction and have original jurisdiction in all but a limited number of state matters. Each Circuit Court presides over a region consisting of one or more counties (see Map of the 22 Judicial Circuits of Illinois).

The Judicial Circuits are grouped together into five regions called Judicial Districts, each presided over by an Appellate Court (see Map of the 5 Judicial Districts of Illinois). An appeal from a Circuit Court is heard by the Appellate Court presiding over the Judicial District where the case originated. Appeals are heard by panels of three justices. The first Judicial District consists exclusively of Cook County.

The Illinois Supreme Court is located in Springfield, Illinois, and is composed of seven justices. Appeals from the Appellate Courts are taken by the Illinois Supreme Court, which has the final word in Illinois state matters.

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