Litigation Areas

Commercial and Business Litigation

Mr. McKinney's litigation practice is experienced in handling a wide variety of complex commercial disputes. Mr. McKinney, has represented clients in Florida state courts, federal courts, alternative dispute resolution proceedings, including arbitration, mediation, and formal negotiation. Mr. McKinney provides counsel to its clients and analyzes all options to determine the best legal strategy for asserting and protecting the clients' interests. He pursues those interests for the client with focus, determination and dedication. TMr. McKinney provides personalized attention to the client so that the client remains well informed at all stages of the legal process. This promotes good communication with the client and results in efficient management of the case and associated costs.

Patent Litigation

A patent can be infringed either literally or under the doctrine of equivalents. First as a matter of law, a court must construe and interpret a patent's claims to establish their meaning and scope. In literal infringement, the accused infringing device or process must contain every limitation of the asserted claim. Each claim of a patent is considered separately and not all claims of a patent need to be infringed to establish infringement. Under the doctrine of equivalents, if a device performs substantially the same overall function in substantially the same way to obtain substantially the same result as the claimed invention, the infringement may be found even if the device does not literally infringe each element of a patent claim. The difference between literal infringement and the doctrine of equivalents is that an accused device that does not literally infringe a claim may be found to infringe if there are only "insubstantial differences" between the claimed element and the equivalent element. The statute of limitations in patent infringement actions is six years and applies only to actions for damages. Damages available for patent infringement include lost profits, established royalty or reasonable royalty and in some cases attorneys' fees and treble damages.

Trademark Litigation

The test for trademark infringement is whether the accused infringing mark is likely to cause confusion, or cause mistake, or to deceive. The analysis of likelihood of confusion is more than just a side by side comparison of the trademarks. Rather the trademarks must be considered in the context in which the goods are sold, including the ordinary care that a consumer uses in purchasing particular types of goods. Actual confusion or deception of purchasers is not essential to trademark infringement. The owner of a federally registered trademark has the option of its actual damages for the infringement, or seeking an accounting of an infringer's profits. Actual damages includes the loss of sales due to actual confusion, damage to the trademark owner's business good will, loss of income resulting from a reduction in the price of goods due to infringing competition, expenses, and loss of reasonable royalty that would have accrued from licensing the trademark. In some cases, such as intentional or deliberate infringement, attorneys' fees are recoverable as damages.

Copyright Litigation

Copyright protection exists regardless of whether the copyright is registered. However, a copyright registration is a prerequisite for filing a copyright infringement action based on a work of US origin. Registration is also a prerequisite to recovery of statutory damages and attorney's fees in an infringement action. Registration further provides prima facie evidence of ownership and validity of the copyright. A copyright does not grant the right to exclude others from use of an idea. Copyright protects only a particular embodiment of an idea. Therefore, if someone independently creates something that is similar, or even identical to, the copyrighted work, no infringement exists. Copyright infringement requires actual copying. A copyright owner is entitled to preliminary and permanent injunctions to stop an infringement. The court also may order the destruction of the infringing articles, as well as the plates, molds, masters, negatives, etc. used to make the infringing articles.

A copyright owner is entitled to recover any actual damages as well as any profits made by the copyright infringer. The copyright statute also allows statutory damages, which are determined by the court, and are limited to between $500 and $20,000 unless the infringement was willful. For willful infringement the court may award up to $100,000 in statutory damages. The copyright owner must select between actual and statutory damages and cannot collect both. Attorney's fees may also be recoverable as part of costs in a copyright infringement litigation.

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Patent Infringement

Bushnell v. Brunton (Fed. Cir. 2009) Bushnell’s patents cover a laser range finder. The company sued Brunton and Lanshoo in Kansas for infringement and also filed a motion for a preliminary injunction to stop the ongoing infringement. On November 25, 2009, Judge Vratil issued the preliminary injunction and Brunton immediately requested a temporary stay from the Federal Circuit. A temporary stay of relief was granted that same day (November 25, 2009). The temporary stay was intended only to last until the court could decide whether relief should be stayed for the remainder of the preliminary injunction appeal. The decision on that question was decided by Chief Judge Michel and Judges Schall and Linn of the Federal Circuit. Under the Supreme Court precedent of Hilton v. Braunskill, 481 U.S. 770 (1987), an appellate court may stay relief pending appeal when the moving party establishes a strong likelihood of succeeding on the merits of the appeal or “failing that” when the party has a “substantial case on the merits and the harms factors militate in its favor.” In this case, the Federal Circuit ruled that “Brunton has not met its burden” and immediately lifted the stay (December 30, 2009 opinion).