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Presented by: Kenneth Lemke – Briggs & Stratton Corp. Toby Reynolds – Hansen Reynolds Dickinson Crueger LLC . Patent Litigation 101. WISACCA – 2014 Annual Conference May 15 th & 16 th. Patent Litigation Facts and Figures. Average Legal Costs Defending Patent Case ($ Millions).

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presented by kenneth lemke briggs stratton corp toby reynolds hansen reynolds dickinson crueger llc

Presented by:Kenneth Lemke – Briggs & Stratton Corp.Toby Reynolds – Hansen Reynolds Dickinson Crueger LLC

Patent Litigation 101

WISACCA – 2014 Annual Conference

May 15th & 16th

patent litigation facts and figures
Patent Litigation Facts and Figures

Average Legal Costs Defending Patent Case ($Millions)

Median Damages Award

$4,900,000

phases of patent litigation
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 partesreview (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
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 – Markmanhearing
      • 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 p atent c ase
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 art
“Reading the Claims on” the Accused Product and Prior Art

Accused Product

Made in 2013

Patent 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-

  • Prior Art
  • Public Use or Sale
  • Iowa County Fair
    • 1995
  • B. Described in a
  • Printed Publication
  • Woodworking Journal
  • 2001

15”

24”

22”