Patent Litigation

• Patent Infringement: When a business or person infringes your patent, or you are accused of infringing someone else's patent, litigation should be considered. A case of patent infringement can have drastic implications for a business, so any and all allegations must be taken seriously.  You will need aggressive representation in protecting your interests.  In all cases of patent infringement, a business needs attorneys who are familiar with patent law, who are experienced, and understand federal litigation.   
  
  
• Patent Lawsuit Venue. Patent litigation proceeds in federal court or arbitration.  Venue in a case of patent infringement is often one of the first battles between the parties once a lawsuit is initiated because the choice of venue can have a significant impact on the outcome of a case and the convenience of the parties.  Because many patented products are distributed throughout the country and the world, venue may be proper in a variety of federal jurisdictions. 
  
  

• Patent Infringement Issues: As complex as the technology may be, the arguments are typically that the Defendant's technology has all the elements recited in the Plaintiff's patent claims, which define the invention. If so, there is a case of literal patent infringement.
  
                         Patent Claim 1 has elements A, B, C
                         Defendant infringes if technology has A, B, C
  
  

• Doctrine of Equivalents Infringement: If the match is not exact, and a case of literal infringement is difficult, a Plaintiff may also claim patent infringement under the "Doctrine of Equivalents."  These arguments have been significantly limited in recent years because of a line of case law (Festo) that has narrowed application of the Doctrine, but it is still routinely used in patent litigation and is a useful tool in enforcing the rights of a patent holder.
  
  
• Remedies for Infringement: Typically, a Plaintiff wants the infringement to stop, the imports to stop, or monetary damages (e.g., lost licensing royalties, lost sales, lost profits).  Patent infringement cases typically involve the employment of forensic economists who attempt to isolate damages.
  
  
• Patent Infringement Procedure: In the federal courts, patent litigation is usually broken into two or three major phases. 
  
   
• Patent Claim Construction Phase: During the claim construction or Markman phases of the litigation, the Court looks at the language of the claims of the patent to define their scope.  The Court attempts to determine the meanings that should be given to particular words in each claim.  The Court will look first to the patent description or "specification" in deciphering the claims.  Also, the Court will look to the file history and the paperwork leading up to issuance of the patent.  The arguments made by the patent attorneys and parties in acquiring the patent can be used to interpret the meanings and scope of the claims.  The Court may or may not employ the assistance of an expert in deciphering the claims.  The claim construction phase of the infringement case usually culminates in a Markman hearing (named after the landmark case requiring construction by the Court), which hearing may proceed like a trial with witnesses being called, or which may be conducted in less formal fashion by the Court to supplement paper submissions and motions.  The timing of such a hearing varies considerably with each jurisdiction and the discretion of the Court, but may be very early in the case (before extensive discovery) or sometimes even close to trial.  The Court will issue its order construing the claims, which will govern the rest of the case and have a significant impact on how the parties argue the remainder of the case.  In some circumstances, a Markman construction can practically end a case of patent infringement where the construction makes a summary judgment possible.  Consequently, parties may seek an immediate appeal to the Court of Appeals for the Federal Circuit, if the claim construction by the Court is believed in error.  The reversal rates from the district court are high, so it is not uncommon for a case of patent infringement to go to the Federal Circuit at least once during the life of the case.   
  
        
• Infringement Liability Phase: Following the claim construction phases of a trial, the parties will move into an infringement phase and will try to prove that the accused infringing product reads on the claims as construed by the Court.  This is the liability aspect of the litigation and may or may not include damage assessments.  This phase is usually accompanied by significant amounts of evidence gathering or "discovery" including documents being subpoenaed, experts rendering reports, witnesses being called in depositions, etc.  
  
  
• Infringement Liability Defenses: At the liability phases, Defendants typically argue either non-infringement or patent invalidity.  For example, Defendants may argue that a patent never should have issued by way of inequitable conduct, delays in enforcing patent rights, misuse of patent rights, time bars, or "prior art"-i.e., the invention was not new at the time of patenting.  If the plaintiffs make arguments based on the Doctrine of Equivalents, Defendants may argue "file wrapper estoppel" and look to the patent file history to claim that plaintiffs surrendered arguments to a range of equivalents.   
  

• Patent Infringement Damages Phase: Damages in a patent case may be in the form of a "reasonable royalty" (what the patent holder might have obtained from a license) or lost sales and profits that that would have been made by a patent holder without the Defendant's infringement.  Damages arguments in a patent infringement case are typically expert intensive and both parties will usually bring in economists or forensic accountants to review and testify about the damage models.  A case of patent infringement may be split into a whole separate phase or trial for damages, if so bifurcated by the Court.  Sometimes a court will separate damages phases of a case from liability where the interests of justice, costs, or the proprietary nature of the financial materials warrant this remedy.   
  
  
• Punitive Damages in Patent Cases: If willful conduct is found against a Defendant, damages may be enhanced.  Willfulness can become an issue where a defendant knows about a valid patent and continues to engage in infringing activity.  Defendants may counter allegations of willful infringement by seeking and obtaining a legitimate infringement opinion from competent patent counsel. 
  
  
• Declaratory Judgment Actions: Under federal law, a party who is being threatened with patent infringement litigation or allegations of infringement may be entitled to file what is known as a Declaratory Judgment Action.  Such an action is aimed at having a court determine whether a particular activity is infringing, or whether a threatening party's patent is valid.  A declaratory judgment may permit a successful party to recover attorney fees, although courts are given considerable discretion in making such determinations.
  
  
• Patent Litigation requires Patent Expertise: If there is any question of patent infringement, it is important to seek a patent opinion from a qualified Patent Attorney familiar with patent infringement litigation. Patent Infringement litigation is highly specialized and can be extremely expensive, particularly when conducted by larger law firms. Therefore, in most cases it is prudent to thoroughly investigate possible infringements and to fully assess the cost versus benefit of engaging an opponent through the courts. If you or your business have been accused of patent infringement, it is extremely important to secure an infringement opinion to decipher whether there is an actual issue of infringement and how to proceed in your defense.  If you want aggressive representation, then the attorneys of Buche & Associates, P.C. are ready to represent you.  If your business has a case of patent infringement and your patent is being infringed, Buche & Associates, P.C. may be able to assist you to level the playing field by way of contingency arrangements. You should contact the lawyers of Buche & Associates, P.C. to discuss the specifics of your case.  Based in San Diego, California and also in Houston, Texas, the patent attorneys of Buche & Associates, P.C. are well equipped to handle your case.  San Diego patent attorneys.  Houston patent attorneys.

                                                                                       

 

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