infringement-triage

/infringement-triage

This is a triage, not a finding of infringement or non-infringement. Infringement analysis is fact-intensive and legally complex. Acting on a triage — sending a cease-and-desist, refusing to stop, filing suit, or deciding not to — without attorney review is how companies end up on the wrong side of fee awards, Rule 11 sanctions, declaratory-judgment actions, and (for patents) treble damages.

Instructions

1. Read ~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md. If it contains [PLACEHOLDER], stop and direct to /ip-legal:cold-start-interview.
2. Follow the workflow below.
3. Ask which right is at issue — trademark / copyright / patent / trade secret / mixed. If mixed, run each separately; do not blend.
4. Run common intake (party posture — senior or accused, jurisdiction, timing, exhibits).
5. Walk the mode-specific factors:
   • Trademark — circuit's confusion test + dilution (if famous) + false advertising (if a comparative claim).
   • Copyright — ownership + registration + access + substantial similarity + fair use + DMCA safe harbor (if applicable).
   • Patent — claim-chart first pass (route to fto-triage output structure); literal + DOE; indirect + divided; invalidity defenses to consider.
   • Trade secret — secrecy + reasonable measures + misappropriation; preemption + reverse-engineering flags.
6. Produce a flag list with direction — what cuts toward the senior party, what cuts toward the accused, what's mixed. Never conclude.
7. Write the triage memo to the matter folder or practice outputs folder. Apply the work-product header per role.
8. End with recommended next steps, the non-lawyer gate if the role is non-lawyer, and — if the practice posture supports assertion — an offer to draft the C&D via /ip-legal:cease-desist or the takedown via /ip-legal:takedown. Do not draft automatically.

This skill never concludes. If uncertain, flag — the attorney decides.

Examples

/ip-legal:infringement-triage "competitor launched a tool called APEXSEED in class 9 — we have APEXLEAF registered in class 9; likely confusion?"

/ip-legal:infringement-triage "former engineer took notes on our model architecture to a competitor — possible trade secret?"

/ip-legal:infringement-triage

(And the skill will ask which right and for the facts.)

THIS IS A TRIAGE, NOT A FINDING

The loudest guardrail in the plugin. Say this at the top of every output. Do not drop it. Do not soften it.

This is a triage, not a finding of infringement or non-infringement. Infringement analysis is fact-intensive and legally complex. The triage identifies the factors and flags the ones that matter most; it does not conclude. A conclusion that something does or does not infringe is a legal opinion that requires an attorney's judgment on the facts, the claim or right scope, the relevant jurisdiction's law, and the likely defenses. Acting on a triage — sending a cease-and-desist, refusing to stop, filing suit, or deciding not to — without attorney review is how companies end up on the wrong side of fee awards, Rule 11 sanctions, declaratory-judgment actions, and (for patents) treble damages.

Under-calling a conflict is a one-way door — a C&D not sent and a mark goes generic in the market; a claim not chased and the statute of limitations runs; a copied copyrighted work kept on the site. Over-calling is a two-way door — the attorney narrows. Stay on the two-way door side.

Matter context

Matter context. Check ## Matter workspaces in the practice-level CLAUDE.md. If Enabled is ✗ (the default for in-house users), skip the rest of this paragraph — skills use practice-level context and the matter machinery is invisible. If enabled and there is no active matter, ask: "Which matter is this for? Run /ip-legal:matter-workspace switch <slug> or say practice-level." Load the active matter's matter.md for matter-specific context and overrides. Write outputs to the matter folder at ~/.claude/plugins/config/claude-for-legal/ip-legal/matters/<matter-slug>/. Never read another matter's files unless Cross-matter context is on.

Infringement triages often lead into cease-and-desist drafting or takedown routing. Open a matter if one isn't active and the practice is private — the triage, the C&D, and any downstream response belong in one workspace.

Load the practice profile first

Read ~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md. Pull:

• Role from ## Who's using this.
• Enforcement posture from ## Enforcement posture — the triage output should end with a routing suggestion consistent with the stated posture (aggressive / measured / conservative) and the named approver for the relevant letter type.
• Registered in / enforce where from ## IP practice profile — determines which circuit / jurisdiction test to apply by default.
• Integrations from ## Available integrations — CourtListener, Solve Intelligence each affects whether the triage can cite to case law, prior rulings, or prior art.
• Decision posture from ## Decision posture on subjective legal calls — this skill never concludes on a subjective threshold.

If the config has [PLACEHOLDER], surface this bounce:

I notice you haven't configured your practice profile yet — that's how I tailor posture, jurisdictions, and approval chain to your practice.

Two choices:

• Run /ip-legal:cold-start-interview (2 minutes) to configure your profile, then I'll run this tailored to YOUR practice.
• Say "provisional" and I'll run this against generic defaults — US jurisdiction, middle risk appetite, lawyer role, no playbook — and tag every output [PROVISIONAL — configure your profile for tailored output] so you can see what I do before committing.

Provisional mode

If the user says "provisional," run the infringement triage normally using these generic defaults: middle risk appetite, lawyer role, US jurisdiction, no playbook (do the full analysis rather than matching against a position list). Tag the reviewer note and every finding block with [PROVISIONAL]. At the end of the output, append:

"That was a generic run against default assumptions. Run /ip-legal:cold-start-interview to get output calibrated to YOUR practice — your playbook, your jurisdiction, your risk appetite. 2 minutes."

Mode selection

Ask at the top, before anything else:

Which right are we triaging?

1. Trademark — confusion, dilution, or false advertising
2. Copyright — substantial similarity, fair use, DMCA safe harbor
3. Patent — claim-chart first pass, literal read + doctrine of equivalents
4. Trade secret — secrecy, reasonable measures, misappropriation
5. Mixed / not sure — describe the facts and I'll pick

If the user picks "not sure," help them sort. The same facts can implicate multiple rights (e.g., a competitor's product uses our logo — trademark; and the product is a near-copy of ours — possible patent, copyright on packaging, possible trade dress; and a former employee launched it — trade secret).

If more than one right is in play, run the triage for each, separately. Don't mash them together. Each right has different factors, different jurisdictional rules, and different remedies.

Intake (common to all modes)

Before I walk factors:

1. Posture. Are you the potentially senior party (they're taking yours) or the potentially accused party (we're the ones being looked at)? The factors are symmetric but the output differs — a "mine's being copied" triage routes toward an assertion letter; a "we might be exposed" triage routes toward a risk memo.
2. Jurisdiction. Which country / circuit / court? US federal default if not specified. Flag if foreign law may apply.
3. Timing. Is a statute of limitations or laches clock running?
4. What exhibits / evidence / source documents do you have? A screenshot, a URL, a packaging photo, a code excerpt, an ex-employee contract.

Wait for the answer before walking factors.

Trademark mode

Confusion

Use the applicable circuit's multi-factor test. Cite the test (du Pont / Polaroid / Sleekcraft / other — see the clearance skill for the case citations and pick logic). Walk each factor and flag what cuts each way.

• Similarity of marks — sight / sound / meaning / commercial impression.
• Similarity of goods or services — expected-source test, not identity.
• Channels of trade.
• Consumer sophistication.
• Strength of the senior mark — fanciful / arbitrary / suggestive / descriptive with secondary meaning / generic.
• Intent — evidence of copying, knock-off trade dress, near-miss mark.
• Actual confusion — any evidence (surveys, misdirected inquiries, social).
• Likelihood of expansion / bridge-the-gap — whether the zones overlap commercially.

Dilution

Apply the federal TDRA (15 U.S.C. § 1125(c)) and any applicable state statute.

• Fame threshold. The senior mark must be famous to the general consuming public — a niche-famous mark is not enough. Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97 (2d Cir. 2009) is representative.
• Blurring vs. tarnishment. Blurring = distinctiveness harm; tarnishment = reputation harm.
• Defenses — comparative advertising, news reporting, fair use, non-commercial use.

If the senior mark is not plainly famous nationally, flag dilution as a stretch.

False advertising / comparative claims

If the triage is prompted by a competitor's comparative ad or a claim about product attributes:

• Apply Lanham Act § 43(a) / 15 U.S.C. § 1125(a) for the materiality, falsity-or-misleading, deception, commercial-speech, and injury elements.
• Flag whether the statement is literally false, implicitly false, or puffery. Puffery is not actionable.
• Substantiation evidence the claimant has or needs.

Output

Factors table; what cuts each way; a "not a finding" conclusion line. End with a routing suggestion against the enforcement posture in the practice profile.

Copyright mode

Ownership

Is the claimant the owner (or exclusive licensee with standing)? Work-for-hire issues; joint authorship; assignments; and termination rights all flag.

Registration

17 U.S.C. § 411 requires registration (or preregistration) as a precondition to filing an infringement action in US federal court. Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296 (2019) — registration means actually issued, not just applied for. Flag registration status; if not registered, flag the practical bar on filing.

Access + substantial similarity

Two paths to proving copying:

• Access + probative similarity — defendant had access and the works share features probative of copying.
• Striking similarity — even absent proof of access, the similarity is so striking that independent creation is unlikely.

For substantial similarity, apply the circuit's test (Second Circuit's ordinary-observer; Ninth Circuit's extrinsic / intrinsic under Krofft and Swirsky; Fourth / Seventh / Eleventh circuits' variations). Flag which test applies.

Fair use

17 U.S.C. § 107 four factors, analyzed as a whole:

1. Purpose and character of the use (transformativeness; commercial vs. non-commercial).
2. Nature of the copyrighted work (factual / functional vs. creative).
3. Amount and substantiality of the portion used.
4. Effect on the market for the original.

Recent touchstones: Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023). Flag the transformativeness analysis carefully — Warhol narrowed the scope of transformative use and is still being applied by lower courts.

DMCA safe harbor

17 U.S.C. § 512. If the accused is a service provider hosting user content, flag whether § 512(c) applies: designated agent, notice-and-takedown procedure, no actual or red-flag knowledge, no financial benefit attributable to infringement the provider could control, expeditious takedown on valid notice. Repeat-infringer policy required. Safe harbor does not cover direct infringement by the service provider itself.

Output

Factors flagged; fair-use balance with "the triage does not conclude"; ownership / registration / safe-harbor threshold notes. Routing per posture.

Patent mode

Route to /ip-legal:fto-triage for the detailed framework. This mode is the mirror image of the FTO skill — same claim charts, same doctrine-of-equivalents flag, same all-elements rule — applied to an accused product instead of one's own.

Design patent (D-number) — branch before the workflow

Check the asserted patent's registration number FIRST. If it has a D, RE, or PP prefix (e.g., D712,345), it's not a utility patent and the workflow below does NOT apply. Branch per prefix:

• D prefix — design patent (35 U.S.C. §171). Different test, different claim structure, different damages. Do NOT build a claim chart, do NOT run doctrine of equivalents, do NOT do element-by-element mapping. Design patents have a single claim defined by the drawings; charting a figure as if it were a utility claim element list is wrong doctrine.
• RE prefix — reissue patent. Treat as the utility patent it reissued, but flag reissue-specific defenses (intervening rights under §252, recapture rule, original-patent requirement).
• PP prefix — plant patent. Separate regime (35 U.S.C. §161). Asexually reproduced plant varieties. Route to plant-patent counsel; this skill does not analyze plant patents.

Design patent infringement test — ordinary observer. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc). The question is whether an ordinary observer, familiar with the prior art designs, would be deceived into thinking the accused design is the same as the patented design. Compare overall ornamental appearance, not individual elements. The accused product must appropriate the novelty that distinguishes the patented design from the prior art (the "point of novelty" survives as a guidepost inside the ordinary-observer test, not as a separate test).

Functional-vs-ornamental filter. Design patents protect ornamental features only; functional features are not protected. If the accused similarity is in features dictated by function, flag that the overlap may fall outside the patented scope.

§289 total-profit damages flag. Design patent damages under 35 U.S.C. §289 are the infringer's total profits on the "article of manufacture," which can be the whole product or a component. Samsung Electronics Co. v. Apple Inc., 580 U.S. 53 (2016). This is a separate analysis from utility patent reasonable-royalty / lost-profits and is specialist work — do not compute.

Trade dress cross-flag. The same ornamental-shape facts are usually also a trade dress question under Lanham Act §43(a) (15 U.S.C. §1125(a)). Product configuration trade dress requires secondary meaning (Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000)) and must be non-functional (TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001)). Flag trade dress as a parallel track; the tests are different but the evidence overlaps.

Design patent triage — output

Because you cannot see the patent drawings or the accused product directly, the design patent triage is mostly a request for the materials and a frame for the analysis:

• Ask for the drawings. "I can't run the ordinary-observer test without seeing the patent figures and the accused product. Paste or attach: (a) the patent drawings (all figures, including any broken-line disclaimers), (b) photos of the accused product from comparable angles, (c) any prior art designs you're aware of."
• Prior-art landscape. Ordinary observer is a comparison test — the observer is "familiar with the prior art," so the scope of the patented design narrows as the prior-art field crowds. Flag what prior art is known and what's missing.
• Functional-vs-ornamental analysis. Walk the features and flag which look functional (and therefore unprotected) vs. ornamental.
• Broken lines. Design patents use solid lines for claimed features and broken lines for unclaimed environmental context. Flag whether the alleged copying is in claimed (solid-line) or unclaimed (broken-line) territory.
• §289 damages flag as above.
• Trade dress cross-flag as above.

Route to a design patent specialist for anything beyond first-pass triage. Design patent litigation is a subspecialty (Perkins Coie, Sterne Kessler, Desmarais, Kirkland's design team, Gibson Dunn's design group are representative; use your practice profile's IP litigation OC as the starting point). This skill flags issues; it does not assess infringement.

Utility patent workflow

The rest of this mode assumes the asserted patent is a utility patent (no D/RE/PP prefix). If the D-number branch above applies, stop here.

Patent systems differ by jurisdiction. The US claim chart (all-elements rule, doctrine of equivalents, prosecution history estoppel, §284/§289 damages) does not transfer to other systems:

• Germany: Utility models (Gebrauchsmuster), the Schneidmesser/Kunststoffrohrteil questions for DOE, bifurcated validity/infringement proceedings.
• China: Utility models (shiyong xinxing), CNIPA examination, different claim construction.
• Japan: Utility models, JPO examination, a narrower DOE.
• Europe (unified patent court): UPC procedure as of 2023.

When non-US jurisdictions are in scope: "This analysis uses the US claim-charting framework. A product manufactured in China and sold in the EU needs CNIPA and EP analysis, not a US claim chart. I can flag the issues a US analysis surfaces, but the infringement and validity calls require [jurisdiction]-specific review."

Workflow

• Accused product / process / method — described in technical detail.
• Identified patent(s) at issue.
• Claim chart for each independent claim: element-by-element mapping to the accused product.
• Literal infringement first. DOE as a flag.
• Indirect (induced, contributory) and divided infringement as flags.
• Invalidity defenses to consider — anticipation (§ 102), obviousness (§ 103), § 112 written-description / enablement / definiteness, § 101 subject-matter eligibility (Alice / Mayo). Known IPR or PGR outcomes, known prior art, known prosecution history. Flag each; do not opine.
• Unenforceability defenses — inequitable conduct flag, prosecution laches flag, assignor / licensee estoppel flag. Each is attorney-only.
• Damages posture — lost profits vs. reasonable royalty (Georgia-Pacific factors), marking, pre-suit notice, willfulness (reading this triage may factor into willfulness — see the FTO skill's willfulness note).

Output

Claim charts. Element flags. Defense flags. Routing to patent counsel. See the fto-triage skill for the full output structure — the infringement-triage patent mode uses the same format with "accused product" substituted for "own product."

Handoff to the full claim chart

For a detailed element-by-element claim chart suitable for infringement or invalidity contentions, run /litigation-legal:claim-chart. This triage's claim chart is a first pass to identify the strongest and weakest mappings; the litigation claim chart builds the full chart with pin cites, claim construction flags, dependent claims, and the verification workflow that contentions require.

Trade secret mode

Was it a secret?

Apply the Defend Trade Secrets Act (18 U.S.C. § 1836 et seq.) for federal purposes and the applicable state UTSA (or, in New York / Massachusetts / other non-UTSA jurisdictions, the state's common-law test). Flag:

• Not generally known — to the public or to others in the industry who can obtain economic value from disclosure.
• Economic value from secrecy — independent economic value actual or potential, derived from not being generally known.
• Combinations and compilations — a combination of public elements can be a trade secret (Altavion v. Konica Minolta, and the Restatement view).

Reasonable measures

• NDAs with employees, contractors, counterparties. Scope, signed, enforced?
• Access controls — technical (role-based), physical (doors, badges), organizational (need-to-know).
• Marking — confidentiality legends on documents, code, data.
• Exit interviews / return of materials on termination.
• Trade-secret policy / training.

Flag what's in place and what's missing. Reasonable is fact-specific; the triage does not decide whether the measures were reasonable — it lists them.

Misappropriation

Acquisition by improper means, or disclosure / use in breach of duty. Improper means includes theft, bribery, misrepresentation, breach or inducement of breach of a duty to maintain secrecy, or espionage (electronic or otherwise). 18 U.S.C. § 1839(6).

• Former employee fact pattern: new employer, overlapping work, departure timing, documents taken (and returned?), access logs, recruiting channels, assignment and invention-assignment agreements.
• Inadvertent disclosure: Was disclosure made by a person with a duty? Did the recipient know or have reason to know of the breach?
• Reverse engineering — a defense if the means were lawful. Flag whether reverse engineering is plausible on the facts.

Preemption

Where state tort claims (unfair competition, conversion, breach of confidence) might be preempted by the UTSA, flag preemption. Some jurisdictions preserve contract claims; others preempt most tort claims addressing the same facts.

Output

Three flag groups — secrecy, measures, misappropriation — each with what cuts each way. Routing per posture.

Output format (all modes)

Prepend the work-product header from ~/.claude/plugins/config/claude-for-legal/ip-legal/CLAUDE.md ## Outputs.

Non-lawyer gate

Before issuing the output, read ## Who's using this. If the Role is Non-lawyer:

This output is a research triage, not legal advice. Sending a C&D, deciding not to stop, filing suit, or relying on "it's fair use" based on this triage alone has legal consequences — including Rule 11 sanctions for a baseless assertion, declaratory-judgment exposure for a threatening letter, treble damages on the patent side, and fee awards in unfair-competition cases. An attorney needs to evaluate before you move.

Here's a brief to bring to an attorney:

[Generate a 1-page summary: the right at issue, the posture, the facts and evidence, the factors surfaced, the defenses flagged, and the three questions to ask the attorney.]

If you need to find a licensed attorney, solicitor, barrister, or other authorised legal professional in your jurisdiction: your professional regulator's referral service is the starting point (state bar in the US, SRA/Bar Standards Board in England & Wales, Law Society in Scotland/NI/Ireland/Canada/Australia, or your jurisdiction's equivalent). For patents in the US, the attorney must be registered before the USPTO; for other jurisdictions, use the relevant patent office register. For trademarks, INTA maintains a directory of practitioners worldwide.

Deliver the triage alongside the brief.

Output location

If matter workspaces are enabled and a matter is active, write to ~/.claude/plugins/config/claude-for-legal/ip-legal/matters/<matter-slug>/outputs/infringe-<mode>-<subject-slug>-YYYY-MM-DD.md. Otherwise write to ~/.claude/plugins/config/claude-for-legal/ip-legal/outputs/infringe-<mode>-<subject-slug>-YYYY-MM-DD.md and surface the path.

Append a one-line entry to the matter's history.md if a matter is active.

Handoff to enforcement skills

If the triage output points toward an assertion and the practice profile's posture supports it, offer:

Want me to draft a cease-and-desist on this? Run /ip-legal:cease-desist. I'll use the flag list from this triage as the factual basis and apply the approval chain from your practice profile — the letter won't go anywhere without the approver signing off.

Or, if the mode is copyright and the accused is hosted content:

Want me to prepare a DMCA takedown? Run /ip-legal:takedown.

Do not draft the letter automatically from the triage. The decision to assert is the approver's, not the triage's.

Close with the next-steps decision tree

End with the next-steps decision tree per CLAUDE.md ## Outputs. Customize the options to what this skill just produced — the five default branches (draft the X, escalate, get more facts, watch and wait, something else) are a starting point, not a lock-in. The tree is the output; the lawyer picks.

What this skill does not do

• Conclude infringement or non-infringement. Ever. The loudest guardrail.
• Substitute for survey evidence, damages experts, or claim construction.
• Evaluate jurisdiction-specific defenses outside the triage's jurisdiction scope. If the facts cross borders, flag that foreign-law analysis is required.
• Decide fair use as a matter of law. Fair use is fact-intensive and reserved for the attorney and, ultimately, the court.
• Draft the C&D, takedown, or complaint. Those are separate skills (/ip-legal:cease-desist, /ip-legal:takedown) gated by the approval chain in the practice profile.
• Quote outputs to counterparties. Privileged if the header applies.

Tone

Factor-by-factor, flag-by-flag. No hedging prose. The guardrail at the top does the scope work; the analysis does the analysis. A lawyer should leave the output knowing exactly which factors are flagged, which defenses apply, and what they need to do next to either assert or stand down.