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 →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 →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 →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 →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 […]
Read more →In our experience, many patent cases are actually a tale of two cases: The case based on the patent holder’s interpretation and application of the claims and the case based on the accused infringer’s interpretation and application of the claims. Both cases involve the same set of patent claims. However, they often involve conflicting ways […]
Read more →Patent holders can prove infringement by showing that each element of a claim is literally present in an accused infringer’s product or that those elements which are missing have an “equivalent.” The latter approach is permitted under what is known as the “doctrine of “equivalents.” There is something of a conundrum in the way the […]
Read more →When I talk to lawyers who do not practice patent law, they often speak of the complexity of patent cases in terms of the scientific or technological issues involved. What many of them fail to understand is that quite apart from the technology, the law itself is very complex. Lawyers and judges often have difficulty […]
Read more →On April 3 Facebook answered Yahoo’s patent infringement complaint in the pending lawsuit in the Northern District of California. As many people predicted, Facebook also alleged patent infringement claims against Yahoo based on 10 of Facebook’s patents. We discussed Yahoo’s patents and the likelihood that statutory subject matter issues would play a prominent role in […]
Read more →Forcing patent holders to commit to their positions as early as possible is critical for successfully defending a patent case. There is often tension between the patent holder’s infringement case and its validity case, and it is important to force and pin down the patent holder’s positions as early as possible to improve your chances […]
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