English
Patent Reexamination as a Form of Litigation Damage Control
Threat of Injunction Dissolves in Flexiteek Litigation
The initiation of patent reexamination for patents subject to concurrent litigation can provide strategic benefits independent of the ultimate outcome of the reexamination. These litigation inspired applications of patent reexamination can be thought of as falling into one of two categories, namely, pre-trial maneuvers or post-trial, damage control.
Pre-trial Maneuvers are those patent reexaminations initiated to potentially enhance a defendant’s battle in the district court. For example, patent reexamination may be sought as an avenue to establish objectively reasonable behavior for use in preventing a willfulness finding. (see e.g., the yesterday’s Fairchild Semiconductor press release). Still other defendants initiate patent reexamination concurrent with litigation as a mechanism to leverage more acceptable settlement terms, provide additional fodder for claim construction, or to demonstrate the materiality of a reference subject to an inequitable conduct defense.
Post-trial (damage control) on the other hand, is a litigation inspired use of patent reexamination that seeks to undo the damage inflicted by the ruling of the district court. Read the rest of this entry »
