What happens if a company infringes on a client’s patent?
If for example, a client comes to us and says, “We think one of our patents is being infringed,” this involves a little bit of due diligence. First, we have to take a look and do an infringement analysis of their product and compare it to the patent. We’ll take a close look at what defenses they might bring. If it does look like they’re infringing, we’ll take a look if, you know, we wrote the patent or others wrote the patent. We’ll take a look at the prosecution history. We’ll probably undertake a new prior art search, to make sure there’s not some prior art out there that the patent office didn’t have, that might render some of our claims invalid or unenforceable, or not as strong as perhaps the client thinks they are.
And then we’ll also take a look at the potential infringer’s patent portfolio. Indeed there may be a situation that there are patents that they have that our clients may be at risk of infringing.
So we’re not going to make any contact until we understand the complete story. How strong the patent is. How strong the infringement case is. Are there any other potential push-back claims that that infringer might make?
And after some study, then we’ll look at our options. What should we do? How should we approach this? Does a CEO call? Do we send a letter? Do we know their attorneys to call? Do we do a letter? Do we sue? Do we open up license negotiations? It always, of course, depends upon the client, the relationship with the potential infringer. Are they ready to spend the kind of money that’s involved in litigation?