Patent litigation can be a long, complex, and costly process. However, there are some key strategies both plaintiffs and defendants can use to help strengthen their cases. Here are 5 top tips to consider if you become involved in a patent lawsuit.
Hire Expert Witnesses as Needed
Having strong expert witness testimony can make or break your patent litigation case. Technical expert witnesses are especially crucial for explaining patents and accused products to judges and juries.
If your patent covers mechanical inventions, be sure to work with a mechanical patent expert witness. A qualified expert with years of hands-on industry experience can analyze the patent claims as well as the accused infringing products. During the Markman claim construction hearing or at trial, they can offer critical testimony to help prove infringement or invalidity. Just make sure any expert you hire has proper credentials and relevant expertise specifically related to your patent.
Research the Prior Art Thoroughly
Patent litigation often comes down to claim interpretation and evaluating validity over prior art. Spend time upfront researching as much related prior art as possible, including previous patents, publications, and products in the public domain before your patent’s priority date.
The goal is to find anything that may impact your patent’s validity or affect how claims are interpreted. If you uncover strong prior art, it could even lead to settling before an expensive trial. Failing to find and leverage key prior art early on could seriously hurt your odds further into the litigation.
Analyze Claim Construction Closely
The outcome of patent litigation frequently relies on how key patent terms are construed by the court. During claim construction, give ample attention to arguing definitions and interpretations that support your case.
Study the specifications and prosecution history to build support for your proposed constructions. You want to persuade the judge to adopt constructions consistent with your infringement or invalidity arguments. How claims are construed can determine whether your case succeeds or falters down the road.
Drive Early Settlement If Possible
Over 90% of patent lawsuits settle out of court before trial. There are major financial and operational incentives for both patent holders and defendants to reach settlement agreements as early as possible. This saves both parties from mounting legal fees and uncertainty dragging on for years.
Be proactive in pursuing early settlement, especially if you have a strong infringement case as the plaintiff or questionable validity as the defendant. However, make sure any settlement adequately protects your interests before agreeing.
Don’t Wait for Discovery
Discovery is crucial, but don’t just rely on what you uncover from the other party. Be proactively collecting relevant documents and evidence from the start, such as communications, development records, financial documents, and witness accounts.
Also pursue publicly available information that could help demonstrate infringement or validity issues. The more supporting evidence you gather independently, the less susceptible you may be to any discovery battles. Taking early control of building your case leads to better litigation outcomes.
Following these patent litigation best practices can help make the difference between winning and losing your case. Leverage expert witnesses, understand claim construction, push for early settlement, and leave no stone unturned in collecting supportive evidence.
With the right litigation strategies, you will be better positioned for protecting your intellectual property or avoiding infringement.
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