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.