Patent litigation is a complex legal process with your IP rights and money at stake. Moreover, it requires multiple stakeholders, comprehensive evidence, witnesses, and technical analysts to prove your patent ownership in court.

However, on the brighter side, it plays a significant role in preserving the rights of the plaintiff (patent owner) and preventing future infringements. For large-scale enterprises, it prevents loss of revenue to the infringer.

Understanding its significance, let’s uncover what is patent litigation and its process in depth in this article.

What is Patent Litigation?

Patent litigation is a legal process where the rightful owner of an IP can sue another party for unlawful use or acclamation of their patented invention. The proceedings are held in federal court with the aim to recover the damages.

Moreover, it also helps prevent the infringing party from reproducing, using, importing, or selling the patented product or service illegally.

Mostly, the patent holder can take legal action within 6 years of the first infringement date. However, as a patent’s lifespan is about 15-20 years from the filing date, it must be made sure that the infringement occurred within that duration.

lawyer working on a documents

Key Stakeholders in Patent Litigation

There are multiple stakeholders associated with patent law litigation. For the process, the key stakeholders include plaintiffs, defendants, and their legal teams.

Plaintiff: The plaintiff (registered owner of the patent) can either be the inventor or a company that initiates a lawsuit against infringement of their IP.

Defendant/Infringer: The accused individual or company that infringed patent rights without authorization from the owner.

Legal Teams/Attorneys: Lawyers of both the plaintiff and the defendants who provide legal advice, gather evidence, present arguments, and advocate their client’s position in the court.

Expert Witnesses: An expert witness is liable for describing technical information related to the patent’s field and the merits of the invention.

Courts and Judges: The judges and judicial system are responsible for making a fair decision about patent infringement. They interpret patent laws and evaluate the evidence provided to make an unbiased decision.

Jury: In certain unresolved patent infringement cases, a jury needs to be involved. It listens to the arguments and re-evaluates the provided evidence, and then votes in favor or against the plaintiff after determining if the infringement happened or not.

Why is Patent Litigation Important?

Patent litigation is crucial for protecting patented property after an infringement event has occurred. Since competitors are not legally allowed to reproduce or sell the patented product, doing so will have them pay for the damages incurred by its owner.

This legal procedure plays a crucial role in protecting one’s intellectual property, fostering innovation, and resolving conflicts. And if everything goes well, it can offer the rightful patent owner a number of benefits, like:

  • Recovery of lost profits due to infringement
  • Reclamation of the royalties gained from unauthorized use
  • Retrieval of court filing fees, litigation expenses, and attorney’s fees

Permanent injunction: It prevents the infringers from reproducing the product in the future.

Process of Patent Litigation: Key Stages

When you file for claiming your patent rights against an infringing party, the litigation process will initiate. Its proceedings may last between 3 to 5 years after the submission of the claim.

1. Filing of Complaint

When the plaintiff decides to proceed, they file a complaint to the court specifying their claim against the infringer (defendant). The court serves the complaint by sending an official notice of the lawsuit to the defendant.

2. Counterclaims

The defendant then provides a counterclaim by filing an answer to the complaint. They can either admit or deny the allegations and further raise defenses and counterclaims, establishing that the patent is invalid.

It may involve proving the patent technology to be older than the patentee’s filing or the patent’s language being not precise.

3. Discovery

Discovery is the next major step in patent litigation. It encompasses the exchange of business records and written questions between the parties. Additionally, it also involves carrying out the processes of deposition, such as questioning the witnesses and experts and ensuring they are sworn upon and recorded.

Then, a request for summary judgment without a trial is put up. For this, the findings of the discovery, like the patent’s validity, are submitted.

4. Pre-Trial Motions

Before the court’s trial, both parties can file for pre-trial motions to address legal issues concerning the upcoming trials.

There are two types of pre-trial motions:

  • Motion to suppress evidence or expert testimony: Both parties can seek to preclude any evidence or testimony of experts that the other party has hired. They can argue that the testimony or evidence is irrelevant to the case.
  • Motion to bifurcate the case: It is done to simplify the case and to speed up the process. For example, the liability trial is first held. In case no liability is found, the need for a damages trial would be eliminated.
black woman with documents

5. Claim Construction (Markman Hearing)

The Markman hearing focuses on examining specific terms and drawings used in the patent claims. The judge uses a legal dictionary, expert testimony, patent claims, etc., for this purpose.

The case’s verdict may depend upon the agreed-upon meaning of clauses in the patent claim as decided in Markman Hearing.

6. Trial Stage

In some jurisdictions, one trial hearing is considered enough; while in others, separate sessions are conducted over a period of weeks or months to resolve different claims.

During these trials, both parties submit briefs and evidence. And the court also holds technology reviews and collects evidence from expert witnesses.

In this stage, the judges make the decision based on the facts presented in the court. They also determine the damages to be paid by the defendant if patent infringement is proven.

7. Verdict and Judgment

If the plaintiff proves the infringement, the court may order:

  • The recovery of monetary damages from the infringing party
  • The injunction to prevent further infringements
  • Payment of specified royalties in case of potential infringement in future

8. Post-Trial Motions and Appeals

After the final verdict, both parties can file post-trial motions within a specific duration to challenge any aspect of the decision. The losing side can appeal in the Federal Circuit if they think the decision is unjustified or a certain piece of evidence was overlooked.

The verdict is then reconsidered, where mostly the provided evidence is looked upon. However, in some cases, both parties are asked to provide oral arguments in front of a 3-judge panel. The judges then vote for a final decision. Whoever gets the most votes wins the case.

If the losing party still wants to appeal, they have two options:

  1. File a petition for rehearing by the original appeal panel or the entire court
  2. File petition for a “writ of certiorari” (the higher court review) within 90 days


Although it is a complex and painstaking process, the right patent litigation strategy helps in protecting the rights of inventors and patent owners. The patent litigation process has several stages: discovery, pre-motion trials, court trials, etc. All of these help the jury make a fair decision when a patent infringement occurs.

Frequently Asked Questions

The process for registering a trademark varies from country to country. To file for a trademark in the US, you can file an online application with the USPTO. The USPTO entertains two types of applications: ‘In-use’ and ‘Intent to use’. The online application is known as Trademark Electronic Application System (TEAS).

Just like every country has its own registration process, the cost varies as well. Depending on the legal fees and the length of the process, the cost can go up or down. In the US, the price of registering a trademark ranges from $500 to $3000.

You need to file an application which should contain: your name and address, if it’s a business then the type of legal entity it is, details of the trademark, list of goods and services, the details of the class(es). 

Yes, you can file for both: a local and an international trademark. Some countries entertain a single application to register a trademark locally as well as internationally. 

Yes. It is possible to register a trademark in multiple countries with a single application but it depends on which union the country is part of. You can do this through the Madrid Protocol or EUIPO. 

Countries have different laws regarding what can be registered as a trademark. In the US, the types of trademarks that can be registered are slogans, shapes, names, phrases words, images, 3D shapes, holograms, smells, and colors.

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