One of the first questions a client who is pursuing litigation often has for a patent lawyer is about what to expect. Patent litigation is a process that tends to take a while, and you should be prepared to deal with the following issues.
Proving Exhaustion
A court rarely humors parties jumping straight to litigation. This means you'll likely have to document that you've made an effort in good faith to resolve the situation without suing. For example, a party might offer a license agreement to an infringing party in exchange for payment of a reasonable penalty and ongoing royalties. Once you've exhausted the available remedies, you'll be much better positioned to move forward with your case.
Tons of Documentation
Especially because of America's move to the first-to-file rule in 2013, a great deal of litigating a patent case centers on what you can document. Although this approach has made processing patents simpler for the government to handle, it has also encouraged a focus on litigation. Patent trolls — parties that don't bother to invent anything and have built business models out of suing others — are now fairly common.
This emphasis on documentation also means that the ability to protect your invention legally generally means more than the item or process itself. More than anything, you want to be able to nail down the dates for your filings. This is arguably even more important than being able to point toward the acceptance dates.
Subject-Matter Expertise
A common defense against patent litigation is to claim that the patent in question doesn't apply under the circumstances. Good patents need to be built around specificity, but that sometimes leaves questions about whether the patent applies to a particular application or if the defendant had devised a novel solution to a different problem using something that looks superficially like your solution.
To counter these sorts of arguments, it's normal for a patent lawyer to bring in subject-matter experts. These are professionals who are familiar with the field or endeavor your patented product or service was meant for. Such experts can shed light on why a plaintiff is upset about the defendant's usage of a patented idea.
Further Proceedings
Winning a case rarely means that things are over. A court may order mediation, even after a clear victory, to encourage the two parties to arrive at an agreement. Damages will be awarded, but the judge may want to see some level of accommodation for the realities of what has been invested by the losing party.
To learn more, contact a patent lawyer.
