The 11th Amendment to the Constitution no longer hinders owners of patents, trademarks or copyrights from seeking damages against infringing state entities. Unlike patent or copyright protection, trade secret protection is basically cost-free. If the potential fruits of capital intensive research cannot be kept secret or protected by copyright or patent, it would be unwise to risk private capital in such research. Patents are useful to keep competitors at bay until consumers perceive the design of goods or containers as source indicators. Damages look to the plaintiff's market whereas profits look to defendant's market.
Statutes often provide that so-called intellectual property is, in law, property.
One who knows of infringement and delays may find laches to bar injunctive relief. When in doubt as to how consumers perceive the meaning of potential marks, trademark examiners often commission surveys. The most important part of a patent is its claims. Many early cases discussing patentable subject matter seem to turn mostly on the relationship between the scope of disclosures and claims. One who deliberately breaches a contract usually is liable in tort.