WISACCA – 2014 Annual Conference

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Presentation transcript:

WISACCA – 2014 Annual Conference Patent Litigation 101 Presented by: Kenneth Lemke – Briggs & Stratton Corp. Toby Reynolds – Hansen Reynolds Dickinson Crueger LLC WISACCA – 2014 Annual Conference May 15th & 16th

Patent Litigation Facts and Figures Average Legal Costs Defending Patent Case ($Millions) Median Damages Award $4,900,000

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 partes review (pre-AIA), Post-Grant Review (AIA), CBM review) Initiation of Litigation Venue Choice – “Rocket Docket” vs. Local File Complaint / Move for Preliminary Injunction File for Declaratory Judgment (non-infringement/invalidity) File Parallel Proceeding with U.S. PTO and move for stay

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 Claim Construction – Markman hearing Summary Judgment of Validity Summary Judgment of Infringement Trial Complex technical issues for juries and sometimes judges Reliance upon expert testimony (“Battle of the experts”)

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 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- Accused Product Made in 2013 Prior Art Public Use or Sale Iowa County Fair 1995 B. Described in a Printed Publication Woodworking Journal 2001 15” 22” 24”

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