presented by: kenneth lemke – briggs & stratton corp. toby reynolds – hansen reynolds...
TRANSCRIPT
Presented by:Kenneth Lemke – Briggs & Stratton Corp.Toby Reynolds – Hansen Reynolds Dickinson Crueger LLC
Patent Litigation 101
WISACCA – 2014 Annual ConferenceMay 15th & 16th
Patent Litigation Facts and Figures
< 1 1-10 10-25 >250
1000
2000
3000
4000
5000
6000
7000 Through TrialThrough Discovery
Amount in Controversy ($Millions)
58%42%
Who is Bringing Suit?
Non-Prac-ticing En-tities
Average Legal Costs Defending Patent Case
($Millions)
2011 20120
5000
# Cases Filed
30% In-crease
Median Damages Award
$4,900,000
Phases of Patent Litigation Pre-Litigation (Saber-rattling)• Plaintiff
◦ Investigate Accused Product(s)◦ Cease and Desist Letter
• Defendant◦ Evaluate Patent and Potential Defenses (non-infringement/invalidity)◦ Evaluate Parallel Proceeding Options before the U.S. PTO (Inter partes review (pre-AIA), Post-Grant Review (AIA), CBM review)
Initiation of Litigation• Plaintiff
◦ Venue Choice – “Rocket Docket” vs. Local ◦ File Complaint / Move for Preliminary Injunction
• Defendant◦ File for Declaratory Judgment (non-infringement/invalidity)◦ File Parallel Proceeding with U.S. PTO and move for stay
Phases of Patent Litigation (cont’d) Discovery• Plaintiff & Defendant
◦ Compliance with discovery can overwhelm businesses◦ Substantial “soft” costs – time and effort taken from business activity
Motion Practice/ Pre-Trial Activity• Plaintiff & Defendant
◦ Claim Construction – Markman hearing◦ Summary Judgment of Validity◦ Summary Judgment of Infringement
Trial• Plaintiff & Defendant
◦ Complex technical issues for juries and sometimes judges◦ Reliance upon expert testimony (“Battle of the experts”)
At the Heart of Every Patent Case…
1. Court deciding what claim words mean (Markman)
2. Comparing accused product to claim language
Simple example to illustrate process
“Reading the Claims on” the Accused Product and Prior ArtPatent for a Sitting Device
Filed: 1/1/2008
Issued: 1/1/2010
Claims –
I claim:
1. A sitting device comprising:
a round seat; and
three legs coupled to the seat.
2. The sitting device of claim 1, wherein the seat is made of wood.
3. The sitting device of claim 2, wherein the legs are painted black.
4. The sitting device of claim 1, further comprising a fourth leg.
5. The sitting device of claim 1, wherein the legs are at least 24 inches long.
Specification-
Accused Product
Made in 2013
24”
Prior Art
A. Public Use or Sale Iowa County Fair
1995
B. Described in a Printed Publication Woodworking Journal
2001
15”
22”
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