A Patent Attorney to Navigate the Complexities of Your Creation
A patent is a right granted by the government to exclude others from using the invention claimed in the patent for a limited time. Inventors can prosecute their own patents, but most often utilize the services of a patent prosecution attorney to work with the U.S. Patent and Trademark Office to obtain patents. When a competitor infringes a patent, patentees turn to a patent lawyer or patent litigation lawyers to enforce the patents in court. Substantially fewer than 1% of all patents granted are ever litigated. Litigation is expensive and time consuming. Many patent disputes are resolved without litigation, although the weakening of patent rights in recent years has made that less likely of an outcome—alleged infringers feel that they have a few avenues to challenge the validity of the patent with manageable risk. However, whether litigated or not, a patent is only more than a wall decoration or statistic if it can be enforced. Because so few patents are litigated, they are not always prosecuted with litigation in mind. A patent attorney will be able to provide insights into the possible enforceability of a patent that may not have been considered extensively during the patent prosecution process.
Many patentees obtain whole patent families, rather than single patents covering a technology. While more costly, this allows the patentee to capture the full scope of the invention, allows for some level of protection against invalidation, and allows different patents to focus on different or evolving aspects of the technology. The existence of patent families also gives patent litigation attorneys a choice of patents to assert. Some members of the patent families may be a closer fit for the accused infringement. Others may avoid invalidity issues that have developed in the law after the prosecution of the patents.
Design and Utility Patents
A patent attorney can obtain two different kinds of patents from the U.S. Patent and Trademark Office: utility patents and design patents. Utility patents and design patents differ in various important ways. Utility patents are what most people think of as patents. They protect an invention: “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. By contrast, design patents cover “any new, original and ornamental design for an article of manufacture.” 35 U.S.C. § 171. That is, a design patent covers how something looks. You can tell the difference between the two types by their numbering system. Design patent numbers start with a “D,” while utility patent numbers do not. Unlike utility patents, which have multiple “claims” that define the patent’s scope, each design patent has a single claim, which claims the design shown in solid lines of the accompanying drawing. Design patents are often used in conjunction with other types of intellectual property, such as trade dress and copyright, to protect goods. Design patents are an important part of making sure that a product stays distinct in the marketplace.
A patent attorney at Glancy Prongay & Murray can litigate both design and utility patents
Once a patent attorney has obtained a patent for a client, the client or the patent attorney should be on the lookout for infringement. Patents incentivize invention because they allow patentees to either exclusively practice the invention, allowing the patentee to capture market share and margin, or to obtain license fees from others practicing the invention. Ideally, either can be achieved through negotiations. But negotiations take place against a backdrop of potential litigation, and are rarely successful without a credible threat of successful litigation should the negotiations prove fruitless. Additionally, to preserve the patentee’s ability to litigate in a convenient forum, it is sometimes necessary to file a lawsuit before commencing negotiations.
It takes time and effort to assemble and evaluate a patent infringement case. Patentees need to determine whether the infringement is important enough to warrant litigation. That involves estimating the size of the current and future market for the infringing product, including estimating what portion of the market the patentee would be able to capture with and without the exclusive use of the invention. Patentees need to take a very close look at whether there is actually infringement. The patent attorney who obtained the patent may be able to assist with this evaluation, as can a patent litigation attorney. Each patent ends with a series of numbered claims, which define the scope of the patentee’s rights. Even if an invention is described in the patent, the patentee does not have the right to exclude others from using it unless it is captured by the claims. The patentee must compare each element of each applicable claim to the accused product or process to see whether infringement is present.
Finally, the patentee needs to carefully consider the possibility that the patent may be invalid or enforceable. Patent litigation is expensive and time consuming, and there are multiple ways to attack a patent, even if it was thoroughly considered by the patent examiner. To be worth litigating, a patent has to be able to withstand an attack on its validity.
The Experience and Skill of Your Patent Attorney Will Make the Difference in Your Case
Our patent attorneys can help determine whether litigation to enforce your patent would be appropriate. Please contact Jonathan Rotter for more information about enforcing your pharmaceutical patents, drug patents, medical patents, medical device patents, surgical device patents, surgical instrument patents, therapeutic patents, chemical patents, optical patents , optics patents, biotechnology patents (biotech patents), life science patents, consumer product patents, industrial process patents, mechanical patents, agriculture patents, consumer technology patents, and household patents.