Patent Litigation, broadly, is a suit to enforce patent rights against an alleged patent infringer, or a suit for a declaratory judgment that a patent referred to in a cease and desist letter, or that the product referred to in the cease and desist letter, are respectively unenforceable or not infringed.

If you are the Plaintiff in a patent infringement action, you are typically seeking monetary damages and a royalty on the patent against the other side’s allegedly infringing goods, but at times plaintiff wishes to enjoin the allegedly infringing defendant from selling at all in the US.

Patent litigation is akin to commercial litigation on steroids-not for the faint hearted.  If you are sued for patent infringement call a patent attorney right away to see what your options are.  The first thing he or she will do is take a good look at the patent claims and compare the allegedly infringing product(s) to same, and see if there actually is a competent claim for literal infringement.  Then, or contemporaneously,  the patent attorney will find the file history(s) of the patent(s) at issue, and see if there is something therein that might operate to estop the accuser from asserting the scope of the claims capture the allegedly infringing product.  The next action is to do a very thorough prior art search to see if there is prior art out there, preferably not yet considered by the USPTO during prosecution of the patent at play, that might invalidate the patent.  If this is the case, the accused infringer has some ammunition to negotiate, and if actually sued, can Answer with the affirmative defense that the patent is invalid, or spin off an inter partes review (IPR) to invalidate the patent, and attempt to stay the litigation until that time the Patent Trial and Appeal Board (PTAB) renders a decision on validity via the IPR.

If you have a patent that you believe is infringed, your patent attorney should go through the same process that an accused infringer should go though, to make sure there is a valid claim for infringement before a cease and desist letter is prepared and sent.  The only hard advice we can provide, without first investigation, is NOT to ever send out a cease and desist letter alleging infringement unless you have the express approval to do so from your patent attorney, after his or her careful investigation.

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