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Patent Infringement

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.

Please contact Jonathan Rotter if you believe you have a patent infringement claim.  We are particularly interested in handling cases concerning 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.

Court Recognition

“And without question, the Court is of the opinion that the value of benefit that’s been conferred to the class is extremely sizable and that this Court is certainly aware that the skill and efficiency of plaintiff’s counsel is what attributed to this settlement, and they are learned securities counsel. The Court is mindful of that, and as a result they were able to sort of weed their way through the complex issues in this case, and also to bring this about — bring about a settlement rather in short order as these matters go. So the Court certainly attributes that to counsel’s skill and efficiency, as well as the ability to work with the adversaries in this matter.”

–Hon. Susan D. Wigention, U.S. District Judge, District of New Jersey

“Class Counsel has conducted the litigation and achieved the Settlement in good faith and with skill, perseverance and diligent advocacy”

— Hon. Donovan W. Frank, U.S. District Judge, District of Minnesota

“The court finds that the Settlement Fund… created by Class Counsel is an exceptional result… The settlement is significantly above the average securities class action settlement when measured as a percentage of losses recovered… The court finds that Class Counsel, particularly Co-Lead Counsel, exerted tremendous effort on behalf of the class in the prosecution of this action… The Court finds that Class Counsel skillfully prosecuted this action, particularly given that this case was unusually complex relative to most securities fraud class actions. ”

–Hon. Dickran M. Tevrizian (Ret.), U.S. District Court Judge, Central District of California

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