The Business of Patents
Another shift in favor of patent holders has been the increased availability of patent litigation funding. Due to its expense, patent litigation has been referred to by some as the “sport of kings.” We have also heard patents referred to as a “cheap gun with very expensive bullets,” although we know many might disagree with […]
Read more →Are you periodically checking to make sure that your patent marking is up to date? Failure to properly mark your products with the patents that cover them can be very costly if you ever go to enforce your patents. Normally, patent infringement is a “strict liability” offense, meaning that the infringer is liable regardless of […]
Read more →Patent cases are very discovery intensive, and many courts now have “patent local rules” that provide regulated process by which plaintiffs disclose their infringement contentions (i.e., explanations of why the defendant’s acts infringe the plaintiff’s patent) and by which defendants disclose their invalidity contentions (i.e., explanations of why the plaintiff’s patent claims are invalid). These […]
Read more →Many, if not most, patent infringement lawsuits involve a patent owner asserting that its claims cover accused products that differ from the specifically described embodiments in the patent at issue. Patent owners typically want their claims construed broadly by the court so that they “read on” or encompass the defendant’s accused products. Depending on the nature […]
Read more →Every patent claim in every patent is its own invention and stands on its own. An accused infringer is liable for patent infringement if it infringes at least one patent claim in one asserted patent. Some patent cases involve large numbers of patents and/or large numbers of asserted claims. Patent holders are generally quite happy […]
Read more →Now you have your shiny, new issued patent, and you want to go forth and profit from it. To do that, you need to let all of those “infringers” (okay, “potential licensees”) know that you have a patent and that they should pay up. Not so fast. Are you prepared to be sued by the […]
Read more →Determining patent infringement damages is complicated and often borders on the metaphysical. Under U.S. law, a patent holder is entitled to damages adequate to compensate for the infringement, but in no event less than a “reasonable royalty.” In some cases, patent holders can establish damages through lost profits. However, when that is not possible or […]
Read more →The claims of a U.S. Patent define the scope of the patent holder’s right to exclude. In its 1996 Markman decision, the U.S. Supreme Court held that disputes over the meaning of claim terms are an issue of law to be decided by a judge, not by a jury. A substantial percentage of patent verdicts are appealed […]
Read more →Patent holders are not obligated to police infringement or pursue infringers in order to keep their patents in force. However, failing to address known acts of infringement can, in some cases, provide infringers with a defense called “laches” that can limit the amount of recoverable damages in an infringement lawsuit. In addition, patent holders need […]
Read more →One of the defenses available to an accused infringer is that the asserted patent claims are invalid for indefiniteness. The Patent Statute requires that the claims of a patent “particularly point[] out and distinctly claim[] the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112 (b) (formerly 35 U.S.C. § 112, […]
Read more →On July 7, 2014, the Federal Circuit Court of Appeals issued an opinion in X2Y Attenuators, LLC v. International Trade Commission, which underscores the importance of carefully drafting patent applications with an eye toward litigation. The decision also demonstrates why form often dominates over substance in patent litigation. A copy of the opinion can be […]
Read more →A company accused of patent infringement has a large variety of defenses to deploy, including the following: 1. Non-infringement (i.e., the accused product does not practice the patent claims) 2. Prior art invalidity (i.e., the patent claims are not novel or are obvious in view of the prior art) 3. The Public Use or On-Sale […]
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