If your company has just been named in a patent infringement lawsuit, you may be facing an unfamiliar and high-stakes process. Patent litigation is unlike most commercial disputes—it involves complex legal standards, highly technical subject matter, and specialized procedural rules.
This guide provides a practical overview of the key legal issues and procedural stages in a typical patent case. It is intended for companies navigating this process for the first time and looking to make informed decisions early in the dispute. Understanding how these cases unfold, and what strategic options exist at each stage, is critical to protecting your business and developing a sound defense.
What Are Patents and Patent Claims?
A patent is a government-issued right that allows its holder to exclude others from making, using, selling, offering for sale, or importing the patented invention for a limited period. The scope of the patent is defined by its “claims,” which are numbered statements at the end of the patent that describe, in technical and legal terms, what the patent covers.
What Is Patent Litigation?
Patent litigation arises when a patent owner alleges that another party’s product or process infringes one or more of its patent claims. To succeed, the patent owner must prove:
- Ownership of a valid and enforceable patent and
- That the accused product or process satisfies every element of at least one asserted claim
Defendants may also face claims of indirect infringement, specifically induced or contributory infringement, based on their role in facilitating the actions of others who directly infringe.
Patent litigation takes place in the federal courts and is particularly common in industries such as pharmaceuticals, biotechnology, medical devices, mechanical devices, software, and electronics.
Key Defense Strategies
Successfully defending a patent infringement case requires careful planning and early strategic thinking. While each case is unique, experienced counsel will often focus on the following core components:
- Assessing Exposure: The first priority is to understand the scope of the allegations, evaluate any potential risks, and implement steps to preserve relevant evidence. This early analysis shapes the overall litigation strategy.
- Exploring Early Resolution: In some cases, it may be possible to resolve the dispute early through direct settlement negotiations or mediation, minimizing costs and business disruption.
- Mounting a Defense: If the case proceeds, defendants typically raise a mix of substantive and procedural defenses. Common arguments include:
- Non-infringement: The accused product or process does not infringe because it does not meet every element of any asserted patent claim.
- Invalidity: The asserted claims are legally invalid, often due to prior art that discloses the invention, or because the claims are indefinite or abstract, lack enablement, or are otherwise defective under patent law.
- Unenforceability: The patent is unenforceable because of misconduct during the patent application process (known as inequitable conduct).
- License: The defendant has a license or other right to use the patented technology.
- Procedural defenses: The case may be subject to dismissal or narrowing because of issues such as lack of personal jurisdiction, improper venue, or pleading deficiencies.
- Going on the Offensive: In many cases, defendants benefit from asserting counterclaims that shift leverage and put the plaintiff on the defensive. Common counterclaims include:
- Declaratory judgments seeking a ruling of non-infringement or patent invalidity.
- Patent infringement counterclaims if the defendant owns relevant patents that the plaintiff may be infringing. These can open the door to cross-licensing discussions or settlement leverage.
Such strategies can reshape the litigation and strengthen the defendant’s negotiation position.
How a Patent Case Typically Proceeds
While procedures can vary by court, most patent cases follow a structured timeline:
- Filing and Service of the Complaint: The lawsuit begins when the plaintiff files a complaint in federal court and serves the defendant with the complaint and summons. The defendant typically has 21 days to respond, although most courts will grant reasonable requests for an extension.
- Answer or Motion to Dismiss: The defendant may file an answer to the complaint or move to dismiss the complaint for legal insufficiency.
- Preliminary Injunctions: The plaintiff may seek an early injunction to halt the alleged infringement during the pendency of the case.
- Fact Discovery Phase: The parties exchange documents and take depositions of key witnesses. Patent cases often involve substantial technical and financial discovery.
- Claim Construction (Markman) Hearing: A key stage in which the court interprets the meaning of disputed patent terms. This ruling can heavily influence the outcome of the case.
- Expert Discovery Phase: Each side presents expert witnesses, who submit written reports and are deposed on issues such as infringement and validity.
- Summary Judgment Motions: The parties may seek to resolve some or all issues without trial by showing that the material facts are undisputed.
- Trial: If the case is not resolved earlier, it proceeds to trial, where a judge or jury decides infringement, validity, and any appropriate remedies.
In many jurisdictions, it can take approximately 24 to 36 months from the filing of the complaint to reach trial.
Potential Remedies
If the court finds that infringement occurred and the patent is valid and enforceable, the plaintiff may be awarded:
- Monetary Damages: Including lost profits, reasonable royalties, or both
- Treble Damages: Up to three times the actual damages for willful infringement
- Injunctions: To prohibit future use or sale of the accused products or processes
- Attorneys’ Fees: In exceptional cases, courts may award fees to the prevailing party
Why Experienced Counsel Matters
Patent litigation is uniquely complex, requiring counsel who can effectively blend legal strategy, technical insight, and an understanding of your business objectives. Successful defense often depends on precise interpretations of patent claims, credible expert analysis, and strategies carefully tailored to strengthen your position.
At Venable, our patent litigation attorneys regularly handle complex disputes across industries, including pharmaceuticals, biotechnology, medical devices, mechanical devices, electronics, software, and other innovation-focused sectors.
If your company is facing or anticipating a patent infringement dispute, please contact Zachary L. Garrett or John D. Murnane to learn how we can assist.