Determining whether a patent is infringed should entail the same process that a court would use. Generally, a court would make findings on validity, infringement, and enforceability. Below is a list of nineteen specific defenses to patent infringement claims:
Expired Patent, Noninfringement under 35 USC § 271, Anticipation by prior art under 35 USC § 102 (a), (b), (d), (e), or (g), Obvious over prior art under 35 USC § 103, Double patenting, Improper inventorship under 35 USC § 102 (f), Improper scope of claims under 35 USC § 112, Fraud, Antitrust violation, Plaintiff does not own the patent, License to the patent, Abandonment under 35 USC § 102 (c), Misuse, Laches, Intervening Rights, Lack of utility under 35 USC § 101, Inoperable invention under 35 USC § 112, Not statutory subject matter under 35 USC § 101, Foreign filing after non-publication request.Successfully bringing a patent infringement lawsuit does not require proving that the defendant intentionally or willfully made, sold, or used the invention in the U.S. However, proving willful infringement often entitles a successful plaintiff to collect treble damages and attorney fees. While a defendant certainly may seek to avoid even unwilling infringement of patents, one should seek to also ensure that no claim of willful infringement is successful.
The Federal Circuit Court of Appeals repeatedly has required that a defendant obtain and rely upon legal opinion letters regarding whether the defendant infringes a valid patent. Not only must the defendant rely on the non-infringement opinion, but also the courts require that the opinion be complete, thorough, and prepared by a competent attorney. To ensure a defendant's success in potential patent disputes, these requirements are taken very seriously.
Other than patent infringement defense concerns, a design around effort serves to support required documentation for financial considerations, including due diligence connected with an initial public offering of company stock. Providers of insurance for infringement defense routinely require non-infringement opinion letters. Another facet of the design around process is to assess and support the validity of patents issued to defendant. Ongoing reassessment of patents belonging to you permits you to exploit the patents to the fullest extent without unnecessary attacks on the validity of patents or infringement by competitors.
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