Only in the field of patent litigation is spending $250,000 on lawyer’s fees considered a deal. It is incredibly, mind-blowingly expensive to defend or challenge a patent. This is because the patent litigation process is extremely complex and time-consuming.
If you would like to ensure that your patent application minimizes the potential for future pricey litigation, the Law Office of Michael O’Brien can help. To learn more, call us at 916-760-8265, or send us a message using our contact form.
Here’s how the patent litigation process typically works.
Proving that patent infringement has occurred requires (1) a valid patent, and (2) a demonstrable act of infringement. Traditionally, both of these issues were litigated in the Federal District Courts, and usually in a serious of steps.
The process starts when the plaintiff sues the defendant, providing a long list of patent claims that they claim have been infringed. These claims are comprised of a lot of words that describe the various aspects of the patent(s). The first step in patent litigation is to determine what those words mean. When you consider that a former lawyer (and president) once made headlines for debating the definition of “is,” you can begin to appreciate how much of a debacle this can be.
The hearing where a judge makes a determination about the definitions of each of these words is known as a “Markman hearing”—derived from Markman v. Westview Instruments, in which the Supreme Court found that only they, and not juries of laypeople, had the right to determine the meanings of the words used in patent claims.
Once the court has ironed out the relevant definitions, there are usually summary judgment motions by the defense for non-infringement. After that, the claims that could potentially have been claimed are then tested for invalidity. Whatever claims survive this process—and thus have been found to be both potentially infringed and viable—then go to trial.
This process is rather lengthy and expensive, and litigants can spend millions before they know whether there will actually be a jury trial.
The America Invents Act created the inter partes (between the parties) review process in an attempt to reduce the cost of patent litigation.
The inter partes review (IPR) process takes the invalidity test step and removes it from the courtroom, instead having the USPTO examine the question of validity. The process is further streamlined by minimizing the issues that can be examined. The idea behind this approach is that it’s a bit less expensive than letting the court handle it.
But the real value in the IPR process is that it puts the question of patent claim validity in the hands of an expert panel of judges who handle hundreds of these reviews a year, rather than a small handful. This has produced more consistent rulings that allow potential litigants to get a better sense of whether their patent claims will hold up before they ever go to trial.
In addition, the process is a real boon to defendants, since their defenses often don’t hinge on whether infringement occurred, but rather whether the patents were valid in the first place, as is often seen in pharmaceutical patent infringement cases. It has also helped to reduce the cost of patent troll cases, as facile claims are shot down before they ever make it to court.
For more information on how the IPR process can help you with your patent litigation case, contact the Law Office of Michael O’Brien by calling 916-760-8265, or sending us a message using our contact form.