Patent litigation benefits include Post-grant opposition proceedings, permanent injunctions, harmonization with other countries’ patent laws, and Costs. However, there are also drawbacks. These include a lack of legal certainty, a lack of witnesses, and the absence of live arguments. Nonetheless, many people see the benefits of patent litigation. The patent litigation process is an integral part of the patent-protection process. It rewards careful strategic thinking and patience, an expansive patent portfolio, and attention to IP trends. It is a competitive field, but if you can navigate the court system, you should be able to succeed.
It Rewards Creative, Strategic Thinking
Patent litigation is an exciting career for creative people with a strategic flair. In this challenging field, you’ll get to interpret a unique legal document and compete with smart people to prove their case. As a result, patent litigators rarely get cornered by the law; instead, they prefer to outsmart their opponents and fight them on their terms.
It Rewards a Robust Patent Portfolio
In the United States, patent litigation has a high success rate for universities, and universities continue to have the most successful cases. For instance, Carnegie Mellon University was awarded $1 billion in damages in a lawsuit against Marvell Technology Group. The University of Minnesota was awarded $300 million in damages in a patent dispute against Glaxo Wellcome. On the other hand, the University of Rochester lost a multi-billion dollar lawsuit against a pharmaceutical company.
A plaintiff must file a lawsuit within six years of discovering the patent infringement to obtain a patent. The timeframe for bringing a lawsuit depends on the patent, which can take a year or more. Parties can sometimes agree to a shorter timetable to settle their cases. There are also “rocket docket” courts that aim to settle claims within a year. In patent litigation, the parties involved include a plaintiff, a defense, and attorneys for both sides. Patent litigation courts also apply juries, which decide whether a patent is valid.
Patent litigation is essential for patent owners to protect their intellectual property and prevent unauthorized competitors from using it. Patent litigation can be expensive, though. It can result in significant damages and injunctions, which can cause a company to stop production or sales. This discourages innovation and can impede business relationships. It can also increase the cost of borrowing money.
It Rewards Paying Attention to IP Trends
Patent litigation has risen over the last few years, and companies must be aware of current trends. This can assist companies in many ways, including business expansion, employee engagement, and retention. If companies are not familiar with current IP trends, they should begin by implementing an internal IP strategy.
Patent litigation is a complex process that requires experienced legal counsel and managers. As such, many funders shy away from the process because of the alleged expense, difficulty, risk, and duration of the case. However, analysis of recent patent litigation trends indicates that these perceived drawbacks are less than previously thought and are starting to change.
Post-Grant Opposition Proceedings
In patent litigation, post-grant opposition proceedings challenge a patent’s validity. These proceedings are typically filed by a party interested in the subject matter of the patent. These parties include individuals engaged in research or entities interested in the patented goods. In some cases, these parties may cross-claim against the patentee.
While patent owners may be wary of post-grant opposition proceedings, they should be aware of their rights and obligations. For example, in India, only interested parties may file post-grant opposition. An interested party is an individual or entity with a direct financial interest in the patent. In the U.S., however, any third party may file an opposition after the patent has been granted. However, in this country, stricter requirements must be met for the third party to have a direct financial interest or effect from the patent.
In most cases, post-grant oppositions fail to follow proper methodology when arguing about the patent’s obviousness. First, interested parties will say that a patented invention lacks novelty based on prior art. Then, in some cases, they will cite additional prior art and indicate that the patented design lacks some essential elements.
Permanent Injunctions
In a recent opinion, the USPTO and the National Institute of Standards and Technology (NIST) urged policymakers to continue applying injunctions and appropriate remedies in SEP disputes. The economic consequences of a weaker patent system are unclear, but the effects of soft patent protection are already being felt at a micro-level.
Whether permanent injunctions are proportionate and effective depends on the lawsuit’s context. For example, patent owners must demonstrate that their infringement is causing them harm before a request can be granted. In addition, a patentee seeking a permanent injunction must show that it will likely have the monetary damages necessary to do a sustainable business.
The court may also supplement damages with injunctions. For instance, if a plaintiff has an existing patent and cannot protect it from infringement, a court may order the plaintiff to reimburse the damages the plaintiff caused.
Harmonization With Other Countries’ Patent Laws
While patent laws of different countries may differ somewhat, they share common issues and practices. Therefore, patent law harmonization has been a goal of the World Intellectual Property Organization (WIPO) since the early 1960s. It aims to create a more uniform environment for patenting, which benefits both patenting and patent litigation.
One of the most important goals of harmonization is to improve patent law administration and create a level playing field for inventors and third parties. Patent laws in different countries differ in their approaches to utility. For example, European patent law is based on a different concept of utility than U.S. patent law, and the United States patent law is based on the idea of industrial applicability, which requires that an invention be helpful rather than amusement or a mere object of further research. Harmonization is particularly beneficial in patent litigation, as it promotes a fair and uniform legal framework. Other harmonization initiatives include the Patent Law Treaty, Substantive Patent Law Treaty, and Convention on Biological Diversity.
The EPO has been a significant player in judicial harmonization, organizing the biennial European Patent Judges’ Symposium and annual European Judges’ Forum and arranging judicial internships for national courts. Moreover, the EPO has several judges from various countries as external members of its Enlarged Board of Arbitration (Enlarged BoA).