Law Seminars International Presents: Call from Anywhere for a 90-minute Strategy Session on

Proving Irreparable Harm
Practical Tips for IP Practitioners

October 11, 2012

Who Should Order This Homestudy

IP litigators; in-house counsel and executives who need to "handicap" their ability to obtain or defeat an injunction in IP cases and/or need to assemble proof of the presence or absence of irreparable injury.

Why You Should Order

For decades, intellectual property owners enjoyed the luxury of a judicially created presumption that any infringement of their IP rights caused irreparable injury. Based on that presumption, once an IP owner proved infringement, or in the preliminary injunction context likelihood of infringement, it was a forgone conclusion that an injunction would issue.

That luxury has been taken away. In 2006, the Supreme Court ruled in Ebay v. MercExchange that the presumption of irreparable harm in patent cases was unjustified. The court held that whether injunctions should issue in patent cases should be judged in the same manner as in other cases, by a multi-factor test, and that the plaintiff bore the burden of proof on each factor, including irreparable injury. For a time, certain practitioners resisted the thought that Ebay signaled a change for all IP cases, offering one reason or another why copyright or trademark cases ought to be treated differently. Those efforts have failed. The weight of authority now mandates that all IP cases are to be treated according to traditional equitable principles, and there can be no presumption of irreparable harm. We have to do the hard work.

How to do that hard work is the subject of this 90-minute TeleBriefing. How does one prove that damage has been or (in the case of preliminary injunctions) will be done, but that the extent of the damage is immeasurable and not compensable? Equally important, how does one do that without jeopardizing the ability to recover money damages for those harms that can be quantified, or at least estimated with some degree of certainty?

Our panelists will discuss the practical challenges involved in proving irreparable injury in patent, trademark, and copyright cases, the most recent case law concerning what works and what doesn't, and what factors courts weigh to decide whether the harm in question is irreparable. Using the upcoming injunction hearing in Apple v. Samsung as a jumping off point, they will first discuss how they would go about proving their case on behalf of each side, and what evidentiary issues would be likely to arise if those strategies were to be employed. Then, they will change the facts, and discuss how the proof would change as some of the factors courts have identified shift in favor of one side or the other.

What You Will Learn

What Attendees Said


Thursday, October 11, 2012

12:00 pm

Proving Irreparable Harm

Introduction & Overview

Eric C. Osterberg, Esq., Moderator, Founder
Osterberg LLC / Stamford, CT

Trademark Issues

M. Kelly Tillery, Esq., Partner
Pepper Hamilton LLP / Philadelphia, PA

Patent and Copyright Issues

David L. Applegate, Esq., Chair, IP Practice Group
Williams Montgomery & John Ltd. / Chicago, IL

1:30 pm

Q & A (for up to 30 minutes)



$185 to dial in

$235 to dial in and receive continuing education credit

$50 for each additional person on the line who wishes to receive credit

Financial aid is available to those who qualify. Contact our office for more information.


There is a $25 cancellation fee

Continuing Education Credits

This TeleBriefing qualifies for 1.5 Washington CLE credit. For CLE credits in other states:

We will apply for credits in the following states: AK, AL, AZ, AR, CA, GA, ID, IL, IN, KS, LA, ME, MN, MO, MS, NC, ND, NE, NM, NV, NY (experienced attorneys only), OR, PA, RI, SC, TN, TX, UT, VA, VT, WI, WV, and WY.

You can self-apply for credits in: CO, FL, HI, MT, NJ, and OK.

CLE credits currently are not available in: DC, DE, MA, MD, MI, OH, or SD.

If you need other types of credits, please call us at (206) 567-4490.

Our Distinguished Panel

Eric C. Osterberg, Esq., is the founder of Osterberg LLC. Mr. Osterberg has litigated a wide range of cases in federal courts across the country on issues of concern to intellectual property owners and users including: international and domestic copyright infringement; patent and design patent infringement; trade secret disputes; trademark and trade dress infringement; breaches of entertainment industry contracts; counterfeiting; and false advertising.

David L. Applegate, Esq. is partner at Williams Montgomery & John Ltd., where he is chair of the firm's intellectual property practice group and a member of the commercial litigation practice group. He focuses his practice on patent, trademark, copyright, trade secret, unfair competition, licensing, and business litigation and arbitration.

M. Kelly Tillery, Esq., partner, Pepper Hamilton LLP, member of the firm's Intellectual Property Litigation Practice Group, focuses on IP litigation and is known for his work in anti-counterfeiting actions, especially injunctions and seizure orders. He has long been in the forefront of obtaining individual, national and facility injunctions to protect the trademarks and copyrights of performing artists as well as major software, novelty, jewelry and designer manufacturers.