The Must-Have Guide to the Patent Litigation Process

What is patent litigation?

Patent litigation is a civil lawsuit in which a patent owner asks a federal court to stop an infringer and award damages. Patent cases are heard only in federal court, and appeals go to the Court of Appeals for the Federal Circuit. The accused infringer usually fights back by arguing it does not infringe, that the patent is invalid, or both.

What are the stages of the patent litigation process?

Most cases move through the same stages, though many settle before trial.

What counts as patent infringement?

• Direct infringement. Making, using, selling, offering to sell or importing the patented invention without permission.
• Induced infringement. Actively encouraging someone else to infringe, for example through instructions.
• Contributory infringement. Selling a component made for use in the patented invention with no other substantial use.

Damages can include a reasonable royalty or lost profits, and the law limits recovery to infringement in the six years before suit. Read more on patent infringement damages.

How long do patent lawsuits last?

Often two to three years from the complaint to a trial, and longer if the case is appealed. Discovery and claim construction take most of that time, and the court's schedule matters, since some districts move far faster than others.

What does patent litigation cost?

Patent cases are among the most expensive kinds of civil litigation, and the cost grows with what is at stake. Discovery, expert witnesses and claim construction drive most of it, which is why many owners weigh a demand letter, a license or a settlement first.

Are there alternatives to a lawsuit?

Yes. A cease and desist letter can resolve a dispute without a suit, and a license turns an infringer into a paying customer. Accused infringers often challenge the patent at the USPTO's Patent Trial and Appeal Board through inter partes review, and imports can be stopped through the US International Trade Commission.