Presented by:Kenneth Lemke – Briggs & Stratton Corp.Toby Reynolds – Hansen Reynolds Dickinson Crueger LLC

Patent Litigation 101

WISACCA – 2014 Annual ConferenceMay 15th & 16th

Patent Litigation Facts and Figures

< 1 1-10 10-25 >250

1000

2000

3000

4000

5000

6000

7000 Through TrialThrough Discovery

Amount in Controversy ($Millions)

58%42%

Who is Bringing Suit?

Non-Prac-ticing En-tities

Average Legal Costs Defending Patent Case

($Millions)

2011 20120

5000

# Cases Filed

30% In-crease

Median Damages Award

$4,900,000

Phases of Patent Litigation Pre-Litigation (Saber-rattling)• Plaintiff

◦ Investigate Accused Product(s)◦ Cease and Desist Letter

• Defendant◦ Evaluate Patent and Potential Defenses (non-infringement/invalidity)◦ Evaluate Parallel Proceeding Options before the U.S. PTO (Inter partes review (pre-AIA), Post-Grant Review (AIA), CBM review)

Initiation of Litigation• Plaintiff

◦ Venue Choice – “Rocket Docket” vs. Local ◦ File Complaint / Move for Preliminary Injunction

• Defendant◦ File for Declaratory Judgment (non-infringement/invalidity)◦ File Parallel Proceeding with U.S. PTO and move for stay

Phases of Patent Litigation (cont’d) Discovery• Plaintiff & Defendant

◦ Compliance with discovery can overwhelm businesses◦ Substantial “soft” costs – time and effort taken from business activity

Motion Practice/ Pre-Trial Activity• Plaintiff & Defendant

◦ Claim Construction – Markman hearing◦ Summary Judgment of Validity◦ Summary Judgment of Infringement

Trial• Plaintiff & Defendant

◦ Complex technical issues for juries and sometimes judges◦ Reliance upon expert testimony (“Battle of the experts”)

At the Heart of Every Patent Case…

1. Court deciding what claim words mean (Markman)

2. Comparing accused product to claim language

Simple example to illustrate process

“Reading the Claims on” the Accused Product and Prior ArtPatent for a Sitting Device

Filed: 1/1/2008

Issued: 1/1/2010

Claims –

I claim:

1. A sitting device comprising:

a round seat; and

three legs coupled to the seat.

2. The sitting device of claim 1, wherein the seat is made of wood.

3. The sitting device of claim 2, wherein the legs are painted black.

4. The sitting device of claim 1, further comprising a fourth leg.

5. The sitting device of claim 1, wherein the legs are at least 24 inches long.

Specification-

Accused Product

Made in 2013

24”

Prior Art

A. Public Use or Sale Iowa County Fair

1995

B. Described in a Printed Publication Woodworking Journal

2001

15”

22”

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