Patent litigation

A Deep Dive into Patent Litigation: Your Essential Companion 

In the world of innovation and intellectual property, the protection of patents plays a crucial role. However, with the competitive landscape evolving rapidly, patent litigation has become an indispensable aspect of safeguarding intellectual property rights. In this comprehensive guide, we’ll take a deep dive into patent litigation, covering its various aspects, from understanding what it is, the differences between UK and US patents, to the time and financial costs involved in the process. 


What is Patent Litigation? 

Patent litigation is a multifaceted legal process that revolves around the enforcement and protection of patent rights. It occurs when one party, known as the plaintiff, brings a lawsuit against another party, the defendant, alleging that the defendant has infringed upon their patented invention without obtaining the necessary permission or license. This infringement could take various forms, such as using, making, selling, or importing a product or process that falls under the coverage of the patent. Patent infringement can lead to substantial financial consequences, calculated based on the loss of profits or reasonable royalties for the patent owner. 


What does a patent cover?

A patent is a form of protection for intellectual property granted to inventors and innovators for their novel, useful, and non-obvious creations. It covers a wide range of innovations, including products, processes, and services, and grants exclusive rights to prevent others from using, making, selling, or importing the patented invention. Patents are territorial, with each country having its own patent system, and they have a limited duration, typically 20 years for utility patents and 15 years for design patents. In exchange for exclusivity, inventors must publicly disclose their invention. Patents serve as incentives for innovation, protect research and development investments, and contribute to the body of knowledge. 


The Difference Between UK and US Patents 

It’s crucial to understand that the rules and processes surrounding patents can vary significantly depending on the country in which you operate. UK and US patents differ in their legal systems, application and examination processes, geographic coverage, costs, and procedures, as well as duration.  

UK patents are granted by the UK IPO, with protection limited to the UK. US patents are managed by the USPTO, providing protection in the US. UK patents often have more straightforward examination procedures and are generally more cost-effective. US patents involve rigorous examination but can be more costly. Both have a 20-year duration from filing.  

Understanding the distinctions between UK intellectual property laws and US intellectual property laws is crucial for those seeking to protect their intellectual property effectively in these jurisdictions, meaning IP strategies should be tailored accordingly.  

patent infringement

What is Patent Infringement? 

Patent infringement refers to the unauthorised act of using, making, selling, or importing a patented invention without the permission of the patent holder. It’s essential to note that keeping a patented product for commercial use can also be considered infringement. Furthermore, competitors cannot stockpile patented products for future sales after the patent expires. 

If a patent holder believes their patent has been infringed upon, they have the legal right to report the infringement and take appropriate legal action. Importing products obtained from a patented process into the patent’s country also constitutes infringement, as do any subsequent actions with these products within that country. 


Types of Patent Infringement 

Patent infringement is a complex area of intellectual property law and generally falls into two main categories: direct and indirect infringement. 

  • Direct infringement: Direct infringement occurs when a party engages in the unauthorized making, using, selling, or importing of a patented invention without the permission of the patent holder. This form of infringement is the most straightforward and is often the focus of patent litigation. 
  • Indirect infringement: Indirect patent infringement is a legal concept that comes into play when a party is not directly making, using, selling, or importing a patented invention but is still contributing to or facilitating the infringement of a patent. A subcategory of this is contributory infringement, which involves supplying essential elements or components related to a patented invention to others who then use those elements to commit direct infringement. For instance, selling a part that is specifically designed for an infringing use can constitute contributory infringement. 


Patent Infringement Caveats

Patent infringement caveats encompass various intricacies in patent law. Key considerations include: 

  • Knowledge Requirement: In many patent infringement cases, the infringer must have knowledge that they are using or making a patented invention without permission. This knowledge requirement means that a party cannot be held liable for patent infringement if they were genuinely unaware of the existence of the patent. 
  • Wilful Blindness: The knowledge requirement can be a complex issue. In some cases, even if a party can claim ignorance, they may still be found liable for infringement if it is apparent that they are intentionally avoiding knowledge. This concept is known as “wilful blindness.” In other words, if it is obvious that infringement is occurring and a party deliberately avoids learning more about the patent, they may not be protected from infringement claims. 
  • Knowledge Exemptions: The knowledge requirement does not apply universally. In certain instances, the law may not require the infringer to have specific knowledge of the patent. For example, with infringements related to patented products, the party’s awareness of the patent may not be a prerequisite for establishing infringement. 

These caveats are crucial in determining patent infringement liability and the extent of protection offered to patent holders. Legal expertise is often necessary to navigate these complexities effectively. 


Exceptions to Infringement 

Exceptions to infringement in patent law encompass specific scenarios where certain actions or uses of patented inventions are not considered infringements and do not give rise to legal liability for the alleged infringer. In many patent systems, actions performed for personal or non-commercial purposes are generally exempt from patent infringement claims.  

Patents are primarily designed as commercial tools and are not meant for enforcement against private individuals not engaged in business. This exception recognises that individuals or entities may use patented inventions in a private or non-commercial context without violating the patent holder’s rights. For instance, using a patented tool or method at home for personal DIY projects is typically not considered infringement. 


Contributory Patent Infringement 

Contributory infringement happens when someone supplies essential elements related to a patented invention, and this can constitute infringement. However, infringement occurs only if the supplier knows, or it’s obvious, that the supplied elements will be used to make the patented invention. If the supplied product has at least one plausible non-infringing use, the supplier typically won’t infringe. However, supplying even common products may infringe if the supplier encourages infringement, such as by providing instructions for turning them into patented products. Additionally, both the supplier and the recipient must be in the patent’s country of origin for contributory infringement to apply. 

Contributory infringement is a vital concept that helps protect patent rights by holding accountable those who knowingly enable or facilitate patent infringement. This concept discourages parties from indirectly profiting from the unauthorized use of patented inventions by providing essential components or encouraging others to infringe. Contributory infringement cases often involve complex legal and factual considerations, such as determining the intent and knowledge of the accused party, the nature of the supplied components, and the practical application of the patent claims. Legal experts and the courts play a critical role in determining the outcome of contributory infringement cases, and each case is evaluated on its specific merits and circumstances. 


Unjustified Threats of Infringement 

Unjustified threats of infringement refer to the making of groundless, unwarranted, or baseless threats of legal action against another party for alleged patent infringement. These threats typically come from a patent holder, or someone claiming to represent the patent holder and are aimed at stopping or preventing the alleged infringer from continuing their activities.  

They have legal consequences and are a matter of concern in patent law due to their potential to hinder legitimate competition and innovation. Recipients of such threats have rights and remedies to protect themselves from unfair claims, and parties making these threats must exercise caution and ensure that their actions are legally sound. 


How Long Does the Patent Litigation Process Take? 

The duration of patent litigation typically spans from the plaintiff’s initial complaint to the end of an appeal. This can vary significantly based on a multitude of factors, making it challenging to predict precisely how long a case will take. On average, it takes three to five years. However, more straightforward single patent actions, if well-managed, can be completed in less than two years, possibly as quick as 12 to 14 months. The duration depends on the complexity of the case and the country’s court system. 


How Much Does Patent Litigation Cost? 

Patent litigation costs can vary significantly and are influenced by factors such as case complexity, legal fees, expert witness expenses, discovery costs, and the duration of the case. A straightforward case with validity and infringement issues can cost more than £750,000. A simple, single patent action case might start from around £300,000 to £400,000. More complex or valuable cases can cost significantly more, sometimes exceeding £1.5 million. 

Effective management of costs in patent litigation requires strategic planning, budgeting, and a careful assessment of the potential risks and benefits of pursuing legal action. Parties involved in patent disputes should work closely with legal counsel to control costs and achieve their objectives. 


Patent Prosecution Overview 

To succeed in patent litigation, the patent holder must present a strong case to demonstrate that the defendant likely infringed upon their patent. This requires the patent holder to prove that the defendant’s actions fall within the scope of the patented invention and that those actions occurred without permission.  


Defendant’s Counteractions 

The defendant in a patent litigation case has several strategies to counter the patent holder’s claims: 

  • Invalidity Claims: The defendant may assert that the patent claims are invalid. To do this, they need to provide evidence that the technology covered by the patent claims existed before the patent was filed. This evidence, known as “prior art,” can include publications, patents, or public disclosures that predate the patent’s priority date. 
  • Ambiguity or Lack of Precision: Another line of defence for the defendant is to argue that the patent language lacks clarity and precision regarding the protected invention. They may claim that the patent’s claims are vague, overly broad, or ambiguous, making it difficult to determine what is actually protected by the patent. 


Proving Indirect Infringement 

Proving indirect infringement can be complex, but it’s a critical aspect of patent litigation: 

  • Identification of Specific Actions: The patent holder, as the plaintiff, must identify specific actions by the defendant that led to another party’s direct infringement of the patent. These actions may include supplying components, providing instructions, or engaging in activities that actively facilitate or contribute to the infringement. 
  • Knowledge and Intent: To establish indirect infringement, the plaintiff must demonstrate that the defendant knew that their activities would lead to the direct infringement or that they were “wilfully blind” to the consequences. This knowledge requirement involves showing that the defendant was aware, or should have been aware, of the potential infringement resulting from their actions. 

Proving indirect infringement often requires a comprehensive analysis of the defendant’s actions, intentions, and their role in enabling or inducing others to infringe the patent. Expert testimony and documentary evidence may be used to build a case for indirect infringement. 

The Patent Litigation Process 

The patent litigation process can be protracted typically consists of several stages, including: 

Discovery Phase 

Essential to patent trials, the discovery phase can last from months to years. It includes the exchange of internal business records between the plaintiff and defendant, written interrogatories exchanged between parties, and depositions (recorded, sworn, pretrial attorney questioning of witnesses and experts). The findings during discovery, such as patent validity, may lead to requests for summary judgment. 

Pre-trial Motions 

Pre-trial motions may be filed a month or so before the scheduled court date. These can include motions to exclude evidence, motions to strike expert testimony, motions to bifurcate the case into separate trials for simplification, or motions to limit the scope of the trial. 

Markman Hearing 

A key aspect of patent litigation is the interpretation of the patent’s claims. The court holds a Markman hearing to determine the meaning and scope of the patent claims. This hearing can significantly impact the outcome of the case by defining what is protected by the patent. 

Trial Stage 

The trial stage typically involves a jury that decides factual issues and damages in case of infringement. Plaintiff attorneys explain the patent, present fact witnesses, clients, and expert testimonies. The defendant cross-examines and introduces its evidence to challenge the patent’s validity. 

Verdict and Judgement 

Following the trial, the judge or jury issues a verdict. If infringement is proven, the court may order monetary damages to compensate for lost earnings due to infringement, injunctions barring the defendant from using the process or selling the product, and specified royalties for potential future infringing activity. 

Post-trial Motions and Appeals 

After the trial, the losing party may file post-trial motions seeking to overturn the verdict based on errors or misconduct during the trial. Appeals can also be filed with the appropriate appellate court, with a median decision time of roughly a year. Typically, it involves oral arguments before a three-judge panel, with a majority vote determining the verdict. 

Reduce the Time and Financial Cost of Patent Litigation with Minesoft 

Patent litigation can be a resource-intensive process with considerable time and financial commitments. Since patent infringement can pose a genuine threat to a company’s existence or market position, it becomes a crucial strategy for protecting its competitive survival. 

To navigate patent litigation effectively, companies rely on various research tools and strategies, including Patent Databases, Prior Art Searches, and Legal Research Platforms to gain Competitive Intelligence. 

Minesoft offers a suite of powerful patent intelligence tools, such as Minesoft Origin, PatBase and Minesoft Trackers that can save you considerable time and financial resources in patent litigation by allowing you to perform prior art searches and monitor patent legal status changes. Experience the benefits of Minesoft’s suite of patent intelligence solutions first hand by Requesting a Demo Today. 

In conclusion, patent litigation is a complex and multifaceted process that requires careful consideration, significant resources, and a deep understanding of patent law. Whether you are protecting your patents or defending against infringement claims, having a robust strategy in place is essential for safeguarding your intellectual property and competitive position in the market.