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Once
your patent has issued, you have the right to sue
others in federal court for making, selling or using
your invention. If you win, you can get monetary
compensation. You can also get injunctive relief:
an order from the court preventing the infringer
from using or selling your invention.
However, patent litigation should not be undertaken
lightly. First of all, it requires a very experienced
patent law firm. It will take many years, perhaps
a decade, to litigate the dispute. It will likely
cost over $1 million in attorney's fees. And you
could lose, either because a court concludes that
the accused infringer did not infringe your patent,
or because a court concludes your patent is invalid.
If you decide to sue, these are some of the issues
that will arise in your patent lawsuit. You, as
the patent owner, have the burden of proving infringement.
One of the first battles you will have with the
defendant is over the meaning of the claims. The
court must therefore "interpret" the claims to analyze
the scope of a patent. Common words and phrases
used in the claims will be argued about. Once the
court has figured out what the claims mean, it will
compare the defendant's product to the claims. In
order for there to be "literal infringement" of
a patent, the defendant's product must include every
element required by at least one claim. If the accused
product is missing even one element, the accused
product does not literally infringe that claim.
Even if there is no literal infringement, you may
be able to win by proving infringement under the
"Doctrine of Equivalents." Thus, even if the product
does not contain every element in at least one claim,
the Doctrine permits a finding of infringement if
the product contains the functional equivalent of
the missing element. The Doctrine is intended to
prevent a bad-intentioned defendant from unfairly
making minor changes to the invention claimed by
the patent to avoid infringement.
Meanwhile, the defendant may resort to a number
of common defenses. The defendant may try to show
that the patent is invalid for failing to comply
with one or more of the statutory requirements.
Other common defenses include inequitable conduct
before the PTO, patent misuse, estoppel and laches.
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