Virtually any successful company, irrespective of the industry, can be blindsided by a patent infringement lawsuit. In addition to being unexpected, patent litigation is often highly complex and expensive. According to the 2024 data, a median verdict in a patent trial is approximately $ 3.7 million, 1 while the median litigation costs range from $ 600k( when the damages are below $ 1 million) to $ 3.6 million( when the damages exceed $ 25 million). 2 What’ s more is that trial outcome statistics in patent infringement lawsuits heavily favor the plaintiffs— of 82 verdicts entered in 2024, only 17 were in favor of accused infringers. 3 Bad actors, including certain non-practicing entities( NPEs), are eager to capitalize on these statistics, and so they send out volumes of fraudulent cease-and-desist letters and massfile frivolous patent infringement |
complaints, often seeking a quick settlement, knowing that defending against a patent infringement lawsuit is cost prohibitive for many of their targets. Fortunately, there are several straightforward strategies that can help identify and effectively counter such shakedown attempts.
Three Pathways for Prevailing Against a Patent Infringement Claim
Generally, to prevail in a patent infringement lawsuit, the defendant must demonstrate one or more of the following:( 1) procedural defects in the complaint or the patent,( 2) non-infringement, or( 3) patent invalidity. When the infringement claims are legitimate, these issues require a highly complex and comprehensive legal and technical analysis. Fortunately, when patent infringement claims are frivolous, there are practical solutions that can immediately reveal fatal flaws under each of these three pathways,
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potentially helping to eliminate the frivolous threat at the early stages of the case.
A. Procedural Defects Only an owner( or, in certain circumstances, an exclusive licensee) of a patent has standing to bring forth an infringement claim. Accordingly, upon receipt of a cease-and-desist letter or service of a patent infringement complaint, it is critical to verify that the party sending the letter or filing the lawsuit actually owns the patent. The United States Trademark and Patent Office( USPTO) maintains a database of patent assignments and licenses( available at the following URL: https:// assignment. uspto. gov / patent / index. html #/ patent / search). If the search results reveal that the party alleging infringement is not the owner or the exclusive licensee of the patent, then the infringement threat is likely a fraud.
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