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Ever since the U.S. Supreme Court confirmed in 1996 that patent claim construction is a legal issue, not a factual one, an increasing percentage of patent cases have been resolved on summary judgment-that is, a ruling that one party is entitled to judgment as a matter of law. Summary judgments are appropriate in cases where there are no substantial disputes of fact. In these cases, the court’s legal determination of what the patent claims mean-which most courts resolve through briefing and a hearing-resolves the infringement issue. Questions concerning patent validity, especially those relating to novelty, often resolve in this manner, as well. Most patent infringement litigants, therefore, focus tremendous effort on winning summary judgment, in the hope of avoiding the risk and cost of trial.

But if no summary judgment is forthcoming, the parties proceed to trial. A typical patent-infringement trial typically lasts one to four weeks; with more complex cases taking even longer. This process involves the parties preparing pretrial briefs, witness lists, evidentiary motions, jury instructions, and other legal papers. Strategies for trial presentations need to be refined, witnesses need to be prepared, and cross-examination needs to be mapped out-all in tremendous detail. It is expensive and time-consuming for lawyers and businesspeople alike.

As anxiety-provoking is it can be to be sued for patent infringement, or to decide to file a patent infringement law suit, the process plays out over a long period of time, and affords ample opportunity for thoughtful deliberation. There seldom is the need to panic. Bear in mind a few basic principles and you will be in a better position in the long run to deal with patent infringement litigation.

First, prosecute your patents thoroughly and diligently. Take it upon yourself to identify relevant prior art (that is, earlier technology) before you file your patent application and while you are prosecuting it. Nobody will challenge the patentability of your invention more vigorously than an accused infringer, but you can strengthen your patents by identifying and disclosing to the Patent Office the best prior art available. For example, a patent covering an innovative computer networking system that the Patent Office issues after carefully considering all of the relevant prior art will be much stronger than a patent describing some Internet variation of a well-known business method.

Second, learn as much about your competition and its products as you can. Draft your patents to cover not only your own technology but, if possible, your competitors’ technology as well. Remember that patents are intended to protect new and innovative ideas, not just the specific implementation of those ideas that your own engineers and scientists have thought of.

Third, take reasonable steps to identify sooner rather than later competitors’ patents that might be relevant to your product development. If you find out about relevant patents, take them seriously. Design-arounds that might be easy to make early in a product’s development cycle become much harder to accommodate once the product is on the market. Should you unfortunately find yourself a patent infringement defendant, you will be better off if you are dealing with a patent that you knew about-and anticipated properly-than one that has taken you by surprise.

If you are enjoying substantial success in a technology-based business, patent litigation could be an inevitable part of your future-either as a patent owner protecting hard-earned market share against infringers, or as an accused infringer challenging an established market leader.  In both cases, many critical battles can be won before they are fought-by anticipating and preparing for the conflict. Once the battle begins, keep a cool head, focus on business issues, not personal ones, and execute on the plans you have laid in advance.

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