How is Patent infringement typically addressed?

Well before infringement of a patent is suspected, it can be worthwhile to verify that adequate financial resources will be available to finance enforcement of the rights to exclude others from practicing the patent.  For those who do not have the financial means to engage in patent litigation, often patent assertion insurance can be purchased that will provide the needed financial muscle to discourage or halt infringement.

Once infringement is suspected, a patent owner should proceed extremely carefully by:

  1. recognizing the time limits for enforcing patent rights:
    1. The patent owner must not delay filing suit for an unreasonable and inexcusable period of time from the date it knew or reasonably should have known of the potential infringement, particularly if that delay causes the alleged infringer to suffer material prejudice.
    2. A delay of more than 6 years likely will be considered to be unreasonable, especially if it results in evidentiary or economic prejudice to the alleged infringer.
    3. Per the applicable statute of limitations, damages for patent infringement must be sought within 6 years of the expiration of the patent.
  2. fully verifying that their patent rights have indeed been meaningfully violated by:
    1. seeking a competent patent attorney to review the situation;
    2. providing all evidence of the alleged infringement to that patent attorney;
    3. assisting the patent attorney in determining the economic value of the alleged infringement.
  3. thoroughly considering the patent attorney's:
    1. factual and legal analysis of the alleged infringement;
    2. assessment of the legal and economic strengths and weaknesses of the patent owner's position; and
    3. suggested tactics for enforcing the patent rights.
  4. with the patent attorney's assistance, engaging the alleged infringer in a dialog regarding the potential infringement, such as by;
    1. providing to the alleged infringer a properly written infringement analysis;
    2. discussing the infringement concerns with the alleged infringer;
    3. listening carefully to all issues, vulnerabilities, and potential defenses raised by the alleged infringer;
    4. negotiating a satisfactory settlement; and/or
    5. suing the infringer for patent infringement.
  5. properly seeking an appropriate and desired measure of respect for the patent rights, such as:
    1. a purchase of the patent by the alleged infringer;
    2. payments of monetary royalties by the alleged infringer to the patent owner;
    3. removal of the allegedly infringing products from the stream of commerce; and/or
    4. exit of the alleged infringer from the market.
  6. wisely avoiding overly emotional reactions, which can:
    1. sour negotiations;
    2. undermine the patent owner's position;
    3. raise the need or likelihood for a costly litigation; and/or
    4. incur liability for false accusations of infringement.

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