A patent does not enforce itself. Patent owners generally must identify possible infringement and decide whether enforcement makes business sense.
Start With an Infringement Analysis
The first step is usually infringement analysis, not immediately filing a lawsuit.
Compare the Product to the Patent Claims
Your patent attorney compares the accused product or process with the claims of the patent. For literal infringement, each required limitation of at least one claim generally must be found in the accused product or method.
A claim chart is often used to organize that analysis.
Consider Licensing or Notice
If the evidence supports infringement, the next step may involve contacting the other party. Depending on the circumstances, that could include a licensing proposal, notice letter, negotiation, or cease-and-desist communication.
Evaluate Validity and Business Risk
Before taking action, however, the patent owner should evaluate more than infringement. Important questions may include:
- Is the patent still in force?
- Who owns the patent?
- Which claims appear to be infringed?
- What evidence supports the analysis?
- How might the accused party challenge validity?
- Could marking or notice issues affect damages?
- What is the likely commercial value of enforcement?
- Would licensing or settlement make more sense than litigation?
Litigation Is Usually Not the First Step
If the dispute cannot be resolved, a patent owner may file an infringement action in federal court. Imported products can also present issues involving the U.S. International Trade Commission.
The commercial objective should drive the strategy. In some situations, licensing may be the best outcome. In others, litigation may be necessary.