Contrary to the accusations that our society is a litigious one, most people don’t want to go to court unless they have to. Even so, there are times when taking legal action becomes an obvious necessity. If you work in the software field, it may become necessary to file suit for patent infringement.
But when exactly should you pull the trigger, and how should you handle this situation?
First Steps
Filing a lawsuit can be complicated and expensive, so it’s a good idea to take some first steps before you even consider moving forward with this legal action.
- Conduct research. First, you’ll want to conduct some research. You don’t need to become an expert in patent law, but you should have a reasonable understanding of what your patent covers. You should also begin to understand the patent lawsuit process and what constitutes a valid claim of patent infringement. After that, you should do some preliminary research into the suspected infraction. What makes you think that this person or entity is violating your patent? How much information can you gather on your own?
- Hire a lawyer. Early in the process, it’s a good idea to hire a patent lawyer. Lawyers with specialization in intellectual property laws can help you better understand the nature of your case and develop a strategy for how to move forward. At this point, they can help you validate your suspicions and discuss your options with you. It’s a good idea to listen to and follow their advice, as they’re going to serve as your representative in this complex matter.
- Consider hiring an expert witness. An expert witness who is familiar with patent law can assist you and your lawyer in several ways. Expert witnesses have knowledge and expertise in a given subject or field, and they have the resources and abilities necessary to provide valuable information for your case. They may be able to help you with research and analysis, strategic positioning, and even negotiations.
- Gather evidence. Together with your lawyer, your expert witnesses, and other authorities, you can begin gathering more evidence. How and when did the patent infringement occur? How do you know for sure that it’s patent infringement?
The Process
Assuming your claim makes it this far, most patent infringement cases follow a process like the following:
- A cease and desist letter. Sending a cease and desist letter to the suspected patent infringer might resolve the issue immediately. This is a formal, legal demand that the perpetrator stop infringing on your patent. You may demand payment, or simply make the request for them to stop. Either way, if they comply with your request, the legal matter will be settled. If they don’t comply with your request, you can move to the next stage.
- Formal complaints/lawsuits. At some point, you may want to file a formal legal complaint. Once this process begins, the opposing party becomes a defendant, and they may choose to hire lawyers of their own. There’s a formal process typically followed, ultimately resulting in a trial if it becomes necessary.
- Negotiations. About 97 percent of patent cases are settled out of court. Accordingly, the bulk of patent cases unfold through negotiations. You, your lawyers, the defendant, and their lawyers will all work together to try and find a mutually amenable solution to avoid the possibility of going to trial.
The Costs of a Legal Battle
Do you understand that a legal battle over patent infringement might be worth it, but it is going to be costly. That’s why many businesses only pursue a patent legal battle over significantly disruptive matters or with entities with deep pockets.
- Money. It’s very expensive to hire a legal team and even more expensive to go to trial. In some cases, you’ll be completely responsible for paying all your own legal costs. Accordingly, you should run the calculations and make sure that the benefits you get from pursuing this case will be more than what you spend pursuing it.
- Time. Legal battles over patents take, on average, three to five years. Even if the matter is settled relatively quickly, it could still take months to resolve. Are you prepared to deal with this matter for months or years?
- Stress. Legal issues can be stressful, even in a business context. Just because you file a patent lawsuit doesn’t mean it’s going to go your way, and there will probably be lots of complications and obligations along the way.
So, when exactly should you file a lawsuit for patent infringement? That depends on your circumstances and the advice of your lawyer. Patent violations can be complicated and challenging to deal with, but in most cases, they can be resolved with a mutually agreeable solution long before they ever go to trial.
