Key litigation aspects for US patents

Key litigation aspects for US patents can significantly impact their strength and enforceability. When involved in patent litigation in the United States, the following aspects are crucial to consider:

1. **Validity Challenges**: The defendant may challenge the patent's validity, claiming that the patent does not meet the necessary legal requirements for patentability. Common challenges include prior art (existing public knowledge or patents), lack of novelty, obviousness, and insufficient written description.

2. **Infringement**: The plaintiff must demonstrate that the defendant's product or process infringes on the patented claims. Infringement can be literal or under the doctrine of equivalents.

3. **Claim Construction**: Courts often interpret the language used in the patent claims to determine their scope and meaning. Claim construction significantly influences the outcome of patent litigation.

4. **Defenses**: The defendant may assert various defenses, such as non-infringement, invalidity, or inequitable conduct during the patent application process.

5. **Damages**: Calculating damages is crucial in patent litigation. Plaintiffs can seek lost profits or reasonable royalties, while defendants may argue for lower damages based on various factors.

6. **Willful Infringement**: If the defendant is found to have willfully infringed the patent, the damages may be enhanced by the court.

7. **Patent Marking**: Properly marking products covered by the patent can influence the damages awarded in cases of infringement.

8. **Exhaustion**: The first sale of a patented product exhausts the patent holder's rights over that specific item, preventing them from controlling downstream uses.

9. **Defensive Measures**: Cross-licensing, portfolio building, and patent pooling are strategies companies use to defend against patent litigation and potential counterclaims.

10. **Preliminary Injunctions**: During litigation, a party may seek a preliminary injunction to halt alleged infringing activities before the case's resolution.

11. **Venue and Jurisdiction**: Determining the appropriate court and jurisdiction for the litigation is crucial and can impact the case's outcome.

12. **Inter Partes Review (IPR) and Post-Grant Review (PGR)**: These proceedings at the Patent Trial and Appeal Board (PTAB) can be used to challenge patent validity.

13. **Patent Ownership and Assignment**: Ensuring proper ownership and chain of assignment of the patent is essential to establish standing in court.

14. **Trade Secrets**: In some cases, litigants may argue that the patented technology is actually a trade secret and not properly protected by the patent.

15. **Doctrine of Equivalents**: This doctrine allows a finding of infringement even if the defendant's product or process does not precisely match the literal language of the patent claims but is equivalent in function and purpose.