Many companies will find themselves served with a patent lawsuit at some point. In fact, it is becoming increasingly likely as patent lawsuits continue to grow. Even in 2020, when the pandemic slowed much of the legal system, the number of patent lawsuits actually increased.
In some instances, a patent lawsuit settlement is one of the top ways to bring a quick end to a case. However, there are many ways to turn the suit around and win your case.
Here is what you need to know about how to win patent litigation, including the types of patent lawsuits, and tips to avoid a potential case.
How to Win Patent Litigation
Some of the main steps you can take to win your lawsuit include:
#1: Build a Strong Patent Portfolio
The best way to win is by avoiding a lawsuit in the first place. Building a patent portfolio can do just that. In fact, not having one can leave your products and ideas vulnerable. A strong patent portfolio can be a powerful deterrent for competitors since you can potentially file a countersuit. It can also provide more settlement options. For example, you can cross-license your patents for a license to the plaintiff’s patents.
#2: Document Your Evidence
Long before you run into a patent lawsuit, keep documentation. Save an archive for your new products and processes to serve as evidence of the timeline of the launch. If you do this ahead of time, you can strengthen your patent defense.
According to the law, a patent is invalid if the infringed process or product was sold more than a year before seeking a patent. You will have a strong defense if you have clear proof that your innovation predates the patent by a year.
#3: Know Who You’re Up Against
Often, patent suits are between parties that know each other well. They are usually between competitors, but they can also be between suppliers and customers. However, there is a rise of lawsuits by patent-monetizing entities, sometimes referred to as “patent trolls.”
Figure out exactly what type of plaintiff you are facing and what their ultimate goal is. Find out their history of litigation and how these other suits were resolved. See what their risk tolerance is and the resources they can commit to the case. Knowing the plaintiff’s pain points can help you in your defense and strategy.
#4: Consider a Reexamination of the Asserted Patent
It is possible to challenge the plaintiff’s patent outside of the court. According to US patent law, a defendant can petition the Patent Office to reevaluate the claims of a patent against prior publications and patents that could affect that patent’s validity.
A reexamination can put the case on hold until the Patent Office comes to a final decision. It can reduce the scope of the patent’s claims and even possibly eliminate them. However, this can be a risky step. If the patent remains somewhat intact and still covers your process or product, it can strengthen their position in front of the jury.
#5: Own the Case
Lawsuits are often fraught with emotion. Patent lawsuits, in particular, can put you on the defense. That is why you need to be proactive instead and take charge. Assign a business leader from the beginning to work alongside the litigation team. That person can provide valuable information about the technology. Also, use any downtime to work on your strategy fully. Patent litigation often swings between a flurry of activity followed by a lull.
Take advantage of these slow times by studying the strengths and weaknesses of both sides. Evaluate the level of evidence established by each side. It is during these evaluations that you can strengthen your case and fix any deficiencies. Don’t lay low and hope that the lawsuit will disappear. Instead, continue to work and own the case to win.
Types of Patent Infringement
Not all patent infringement is the same. How you defend your product or service and win the trial depends on what type of infringement your case involves. The most common forms of infringement include:
1. Direct Infringement
This form of infringement encompasses using, selling (or even trying to sell), producing, or importing a patented idea or product without permission. It is a direct infringement when it either provides the exact function as the patented process or copies the patented description.
An example is Microsoft’s lawsuit against Harmony Computers & Electronics for selling their product without a license. Another example is the Fortinet settlement against Sophos for poaching trade secrets, which led to the infringement of six patents.
2. Indirect Infringement
This type of infringement is further broken down into two types.
- Contributory infringement: You don’t have to directly create a patented item to be involved in a patent litigation suit. In the case of contributory infringement, you can be sued if you supply unique materials that are exclusive to the patented item.
- Infringement by inducement: This includes any activity by a third party that results in someone else infringing on the patent. In this case, an organization or individual convinces someone else to behave in a way that would lead to infringement. The defendant would be held liable even if they did not know about the original patent.
3. Willful and Literal Infringement
Willful infringement has to do with the concept of intention. In this case, the plaintiff accuses the defendant of completely disregarding the protections of the patent, citing their full knowledge of the patent and ignoring it anyway. A rarer form of infringement is literal—this is where the plagiarized version has the exact copy of every feature in the patented version.
In the case of willful and literal infringement, the fine can be substantially worse. Cisco was recently ordered to pay $1.9 billion, about 2.5x the amount of damages, for infringing on a network protection system.
4. Doctrine of Equivalents Infringement
This is where the infringed product or process has the same result and function as the patented version. In this case, even if the infringing product or process is more efficient, it still violates the patent. The judge can cite the doctrine of equivalents if the product or process is too similar to the patent.
How Can I Avoid Patent Infringement?
Considering that a patent litigation costs anywhere between $2.3 to $4 million, winning a case isn’t enough. It would be most effective to avoid a lawsuit in the first place. While it may be impossible to avoid every patent lawsuit, performing specific searches and tests ahead of time can help you avoid infringement.
These tests include:
Freedom to Operate (FTO) Search
Also called a patent infringement search, this will help you ensure that your product or process doesn’t infringe on any current patent. This type of search will unearth specific patents that your product or process may be infringing on. It’s vital to do this search early to make sure you design around any current patents.
Technology Vitality Report (TVR)
Running a TVR can also help you evaluate your innovation’s novelty and anything similar to your results. While an FTO search focuses on infringement, TVR helps you prove the novelty of your idea. It can also help you win any cases because it shows that you performed your due diligence.
Doctrine of Equivalents (DOE) Test
Because of the doctrine of equivalents, avoiding direct infringement is not enough to escape a trial. A DOE test will help you ensure that your technology or innovation does not function in a similar way to a patented idea.
By performing these tests, you can avoid a potential lawsuit and ensure your innovation is original.
You Can Win Your Patent Lawsuit
A patent lawsuit doesn’t have to end in settlement. With the proper steps in place, you can ensure that you win your case. You can create a compelling case by documenting your process, doing your research early and upfront, and potentially requesting a reexamination of the infringed patent.
Being proactive will help you win your case and avoid potential patent lawsuits in the future. Evaluating your innovations early on will enable you to steer clear of any infringement.