casemark/deposition-ip-supplement
skills/legal/deposition-ip-supplement/SKILL.md
Provides IP-specific deposition examination frameworks for patent, trademark, copyright, and trade secret cases. Covers inventor, infringer, licensing, and expert witnesses with question maps for claim construction, prior art, willfulness, Georgia-Pacific factors, likelihood of confusion, and trade secret identification. Use when preparing IP litigation depositions alongside @deposition-preparation and @deposition-expert-witness.
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SKILL.md
- name:
- deposition-ip-supplement
- language:
- en
- description:
- Provides IP-specific deposition examination frameworks for patent, trademark, copyright, and trade secret cases. Covers inventor, infringer, licensing, and expert witnesses with question maps for claim construction, prior art, willfulness, Georgia-Pacific factors, likelihood of confusion, and trade secret identification. Use when preparing IP litigation depositions alongside @deposition-preparation and @deposition-expert-witness.
IP Litigation Deposition Supplement
IP-specific examination strategies for patent, trademark, copyright, and trade secret depositions. Supplements @deposition-preparation as the primary framework.
Quick Start
- Activate
@deposition-preparationas primary framework - Gather: IP registrations, prosecution history, claim construction order, licensing history, expert reports
- Identify case type below and select relevant witness frameworks
- For expert depositions, also apply
@deposition-expert-witness
Case Types
| Type | Key Issues | Key Witnesses | |------|-----------|---------------| | Patent | Claim construction, infringement (literal/DOE), validity, willfulness, damages | Inventors, R&D/engineering, licensing, technical/damages experts | | Trademark | Distinctiveness, priority, likelihood of confusion, willfulness, damages | Mark owner, marketing, survey experts, damages expert | | Copyright | Ownership, originality, access, substantial similarity, fair use, damages | Authors, access witnesses, similarity/damages experts | | Trade Secret | Existence, reasonable secrecy measures, misappropriation, damages | Secret owners, accused misappropriators, security, damages expert |
Examination Frameworks
Patent — Inventor
| Topic | Key Questions | |-------|--------------| | Conception | First conception date; problem solved; contemporaneous records; who was told | | Reduction to practice | Date; testing/prototyping; corroborating documentation | | Prior art knowledge | Known prior art; searches conducted; how invention differs from [specific ref] | | Claims | Understanding of claim scope; meaning of [disputed term]; relationship to accused product | | Prosecution | Involvement; review of office actions; reasons for amendments |
Patent — Accused Infringer Technical Witness
| Topic | Key Questions | |-------|--------------| | Product/process | How [accused product] works; key components; development timeline | | Design process | Alternatives considered; why this approach; patent awareness; design-around efforts | | Claim mapping | Presence of [claim element]; how product performs [claim function] | | Non-infringement | Which limitation not met; how product differs from claims | | Prior art | Prior products/publications before patent priority date |
Patent — Licensing/Damages Witness
| Topic | Key Questions | |-------|--------------| | Licensing history | Existing licenses; royalty rates; negotiation process; comparables | | Commercial success | Sales figures; success attributable to patented feature | | Market | Competitors; non-infringing alternatives; market share impact | | Hypothetical negotiation | Pre-infringement terms; Georgia-Pacific factors; royalty rate and base |
Patent — Technical Expert
Apply @deposition-expert-witness plus:
- Claim construction: Basis for construing [disputed term]; prosecution history; specification support
- Infringement: Element-by-element walkthrough; physical exam of accused product; source code review (software)
- Validity: Prior art considered; whether [reference] discloses [element]; PHOSITA motivation to combine
Patent — Damages Expert
| Topic | Key Questions | |-------|--------------| | Reasonable royalty | Methodology; Georgia-Pacific factors applied; comparable licenses; royalty base | | Lost profits | "But for" world; manufacturing capacity; non-infringing alternatives; market share methodology | | Apportionment | Method for isolating patented feature value; consumer demand driver analysis |
Trademark — Mark Owner
| Topic | Key Questions | |-------|--------------| | Creation/adoption | When/who created; why chosen; first use in commerce | | Distinctiveness | Inherent or acquired secondary meaning; consumer recognition; advertising investment | | Confusion | Awareness of defendant's mark; actual confusion incidents; similarity; relatedness of goods | | Damages | Lost sales; goodwill damage; costs addressing confusion |
Trademark — Accused Infringer
| Topic | Key Questions | |-------|--------------| | Adoption | When/who decided to use mark; prior search; awareness of plaintiff's mark | | Intent | Intent to trade on goodwill; legal advice; good/bad faith indicators | | Confusion | Known confusion incidents; misdirected customers/orders | | Market | How customers find and distinguish products |
Trade Secret — Owner
| Topic | Key Questions | |-------|--------------| | Identification | Specific description; what makes it secret; development date and team | | Secrecy measures | Physical/electronic security; NDAs; need-to-know restrictions; training | | Value | Development investment; competitive advantage; cost of independent development | | Misappropriation | How defendant acquired secret; evidence; timing |
Trade Secret — Accused Misappropriator
| Topic | Key Questions | |-------|--------------| | Relationship | Nature of relationship; access; agreements signed; understood obligations | | Accused information | Awareness of trade secret; how obtained; independent development evidence | | Use/disclosure | Use of information; third-party disclosure; relation to accused product | | Notice | Knowledge of confidentiality; steps taken regarding obligations |
Document Focus Areas
| Document | Topics | |----------|--------| | Prosecution file | Amendments, arguments, prior art, rejections | | Invention records | Lab notebooks, conception/RTP dates, corroboration | | Licensing agreements | Terms, comparability, negotiation history | | Design/technical docs | Development process, alternatives, product operation | | Marketing materials | Features emphasized, performance claims | | Confidentiality agreements | Scope, obligations, signatories | | Source code | Software patents, trade secret cases | | Financial records | Damages calculation support |
Preparation Checklist
- [ ] Review patents/registrations/trade secret identification
- [ ] Review prosecution history and file wrapper (patent)
- [ ] Map disputed claim terms and proposed constructions (patent)
- [ ] Prepare claim element mapping chart (patent)
- [ ] Identify prior art references and gaps (patent/copyright)
- [ ] Understand accused product/process technical operation
- [ ] Review licensing agreements and comparables
- [ ] Prepare likelihood of confusion analysis (trademark — DuPont)
- [ ] Review confidentiality agreements and secrecy measures (trade secret)
- [ ] Understand damages theory and expert methodology
- [ ] Review expert reports — apply
@deposition-expert-witness
Pitfalls
- Pin claim constructions before deposing technical witnesses — questions must track operative constructions
- Lock inventors to specific conception/RTP dates with corroborating documents
- Force precise trade secret identification before substantive questions — vague descriptions create indefiniteness defenses
- Prosecution history estoppel: lock infringers into positions foreclosing DOE arguments
- Cover all 15 Georgia-Pacific factors with damages witnesses; gaps invite Daubert challenge
- Willfulness (§ 284): pre-suit patent knowledge required — establish/negate knowledge timeline
- DTSA vs. state UTSA: confirm governing law; definitions and preemption scope vary
- Copyright fair use: explore each of four factors independently with relevant witnesses
References
- 35 U.S.C. §§ 101–287 (Patent Act)
- 15 U.S.C. §§ 1051–1141 (Lanham Act)
- 17 U.S.C. §§ 101–810 (Copyright Act)
- 18 U.S.C. §§ 1836–1839 (DTSA)
- Georgia-Pacific v. U.S. Plywood, 318 F. Supp. 1116 (S.D.N.Y. 1970)
- Markman v. Westview Instruments, 517 U.S. 370 (1996)
- Halo Electronics v. Pulse Electronics, 579 U.S. 93 (2016)
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