Patent Litigation Lawyer

Williams Kherkher - Working with a Patent Litigation Lawyer

If you have a patent infringement issue pending, contact a patent litigation lawyer from Williams Kherkher. We have a team of patent litigation lawyers that have in-depth knowledge of patent laws and the steps needed to take care of a patent infringement case.

Understanding Patent Infringements

Patent infringements normally begin with serving notice by way of a cease-and-desist letter. Another method of starting an infringement claim is to file a complaint with the federal court alleging patent infringement. It is the plaintiff's burden to show the defendant's "accused device" literally infringes the claims set out in the patent, or infringes through what's known as the doctrine of equivalents. Naturally, this burden requires hiring experts, which is one reason patent litigation is extraordinarily expensive. Williams Kherkher represents clients on a contingent fee basis for the precise reason of attracting clients who otherwise couldn't afford the expert costs and court costs.

This process of evaluation also includes reviewing the history of a patent from the Patent and Trademark Office (PTO). Defendants will typically scour the PTO for "prior art," meaning trying to find an application that discloses a similar invention to the patent claimed in the lawsuit. Surprisingly, there often exists prior art that will serve to invalidate the patent. Defendants will also claim the patent is "obvious," and therefore is not appropriate for a patent in the first place.

After the case is filed but before it goes to trial the Judge will conduct a claim construction hearing, also known as a Markman hearing. The purpose of this is for the Court to determine what the patent claims actually mean in common language. In other words, if the patent claim discloses a device that "enables" something, the court may define "enable" to mean "turn on." While one would think everyone could agree to the common meanings, the claim construction is pivotal to the case because too narrow of a construction will make it difficult to convince a jury that the accused device infringes. The claim construction hearing is an active and dynamic exchange with the Court, and it is in this type of proceeding a client is well-served to have a lawyer with experience and a proven history as a trial lawyer. Some patent infringement lawyers, while brilliant, have difficult interacting with the Court in a persuasive manner.

Assuming the plaintiff wins, the jury will award a reasonable license for the accused devices already sold, and also impose this royalty on future sales. If the plaintiff actually produces a competing product, it can get lost profits reflective of sales it lost to the competing, and infringing, product.

The "hammer blow" of a successful patent case is the ability to obtain a permanent injunction that prevents the defendant from selling any more infringing products. In many instances this will result in the financial failure of the defendant, as their entire business model may revolve around the infringing device. RIM faced this scenario in the BlackBerry litigation, and basically had no choice but to pay massive damages. Recent court decision, however, reflect the courts' unwillingness to give injunctions in every case. They now focus on whether the plaintiff actually competes and has lost market share to the infringing device. In other words, courts have adopted a rule that prevents the so-called "patent trolls" from filing suits just to threaten permanent injunctions.