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Benefits of U.S. Patent and Reduced Cost Strategies for Pursuing Infringers

August 8, 2017 by Holiday W. Banta, Partner
Benefits of U.S. Patent and Reduced Cost Strategies for Pursuing Infringers

Once issued, a U.S. Patent provides you with the assistance of the U.S. Patent Office, at no cost to you, to prevent issuance of patents to others for identical or obvious variant technology. A U.S. Examiner is more likely to find and use U.S. references than foreign references that might be viewable only in another language, apart from the abstract.
A U.S. Patent provides clear notice to would-be infringers in the U.S. that you own a certain invention. This knowledge is a very strong deterrent to a would-be infringer, as everyone in the U.S. knows, or has a good sense, of the significant expense presented by a patent infringement case and the damages that could follow from being adjudged an infringer.
In particular, most sophisticated companies will conduct a freedom-to-operate search before launching a new product or product line. If your U.S. Patent is identified in that search, then the company will endeavor to remove the patented feature or will decide not to pursue that particular product or product line. This benefit also comes at no cost to you following issuance of your U.S. Patent. Your U.S. Patent then acts as a silent sentinel, deterring others from infringing without your intervention.

If an infringer is found in the U.S., it is often effective to send a cease and desist letter to the infringer to ask it to stop. Again, the cost of patent litigation is a strong deterrent to infringement, and the risk of being found to willfully infringe a U.S. patent after being put on direct notice of that patent through a letter frequently leads to quick cessation of the infringing activity.

If litigation must be filed, the cost of litigation for both sides typically results in a settlement, sometimes quite early in the case. Less than 2% of all patent litigation cases filed in U.S. district courts ever go all the way through a trial of the matter, because the cost of litigation is so high, and each side must bear its own attorneys’ fees absent very special and limited circumstances. Most patent litigation matters do not concern products or technologies for which the damages following a trial of the matter would be sufficient to undertake the risk of a trial.

For more information on patent law, contact Holly Banta or another member of our Intellectual Property Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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