The Patent Infringement Litigation Process

Austin Patent Attorneys

Patent infringement cases are typically filed in federal court, and usually begin with a complaint. In some cases, they may have been preceded by a notice letter or a cease and desist letter from counsel or the patent holder.

The defending attorneys will have strategic decisions to make at this point. They may answer the complaint; or they may file other motions to either dismiss the case for improper pleading, or they may also file to try to get venue changes if appropriate. In some cases, motions to “stay” or pause the proceeding may be filed to try to move disputes of patent validity to an administrative forum such as in the Patent Trial and Appeal Board (“PTAB”) where inter partes review, ex parte reexamination, derivation proceedings, or post grant review procedures may occur.

If the case stays in the court in which it was filed though, the courts will typically focus initially on matters pertinent to setting up scheduling orders, protective orders, and will often move into matters of claim construction. How individual courts schedule matters of procedure varies across the country, and with Local Rules. But with “claim construction,” the court reviews the language of the claims of the patent to define the scope of possible coverage and resolve ambiguities. During this process, the court looks at the patent filing history and all paperwork leading up to the issuance of the patent. After hearing arguments from patent attorneys on both sides of the case and possibly calling in experts to help decipher the claims, the court issues an order construing the claims (called a Markman order), which will have a major impact on the rest of the case—and often if a case remains. This issuance determines how both parties will continue to prepare arguments for their case.

If the claim construction order does not contribute to resolving the case, the parties will start to focus on infringement liability. During this time, attorneys try to prove or disprove the accused infringing product reads on the claims as they were construed by the court. During this time, our attorneys work with you to gather evidence, witnesses, and depositions to support your case.

After claim construction, damages will become more important and the parties will spend time preparing alternate damages models to present to the court. If the defendant is found to infringe a patent, damages may be awarded in the form of either “lost profits” or a “reasonable royalty.” Typically, this part of the case is expert intensive. It’s common for both parties to bring in forensic accountants and economists to testify in an effort to argue to establish what they feel is a fair amount. At times, the court decides to separate the damages phase of the proceedings from liability when the interest of justice, costs, or proprietary nature of financial materials warrant it.

Will You Have to Pay Punitive Damages If Patent Infringement Has Occurred?

Austin Patent Attorneys

It is not uncommon for a plaintiff to make accusations of “willful” infringement to try to recover enhanced damages. The court has the ability to increase damages if intentional infringement is shown, and also to award attorney fees in some cases of “exceptional” bad faith conduct. However, whether this type of damages are available is factually specific. Simply being found to infringe will not warrant such relief in most cases, and particularly if a defendant has a good faith basis to believe they do not infringe or a patent is not valid. In some cases, infringement opinions from counsel can help avoid enhanced damages awards. Patent infringement opinions are often secured as part of an overall plan in defense, but they may be useful for this purpose as well.

Our firm has experienced patent litigators. Our lawyers are federally registered and well versed in providing infringement and invalidity opinions. If you need help with a patent infringement case, contact us for a free consultation.

Declaratory Judgements and Patent Litigation

Under federal patent law, a party who is being threatened with patent infringement allegations or litigation has the right to file a Declaratory Judgement Action in a forum of his or her choosing. This action enables the court to step in to determine whether the threatening party’s patent is actually valid and/or if patent infringement has even occurred.

If you have a strong case of noninfringement or patent invalidity, this may be a good strategy. A patent attorney might start your case by filing a Declaratory Judgement Action.

If you have been accused of patent infringement, you need a reliable patent attorney by your side. Do not hesitate to schedule a free consultation with The Buche Law Firm, PC.

Our Legal Professionals

John Karl Buche

With more than two decades of experience, John provides clients with counsel in matters of civil, injury, business and intellectual property law.

Garett Gray

With over a decade of experience as a disability representative registered with the Social Security Office, Garett Gray specializes in working on disability claims

Byron Ma

Byron Ma is of counsel to The Buche Law Firm, PC in Austin. Byron has experience with patent prosecution matters as well as patent, trademark, and copyright litigation.

Bryce A. Johnson

Bryce Johnson is a partner of The Buche Law Firm, PC in the Austin, Texas office, and his practice focuses on patents and intellectual property.