What makes a Bad Patent Infringement Case?
For many reasons, some just and some unjust, there are patent infringement cases that just aren’t worth the tremendous time and effort that a successful campaign takes:
1. Is the patent itself weak? Are there significant problems in the prosecution history, such as limiting amendments made by the inventor? Is the prior art very close? Are there issues surrounding proper ownership of the patent?
2. Is the patent infringement case weak? Does the alleged patent infringement only cover a single claim, and is there a good argument that the allegedly infringing product doesn’t infringe at all? Do you have to argue that the allegedly infringing product “is a lot like,” or “works the same as,” the patented one; rather than being “just like it?”
3. Is there very little active patent infringement so that the total dollar value of damages will be very small? Are the patent infringers beyond the reach of the U.S. courts? Are the patent infringers so small or insolvent that they are unlikely to be able to pay a court judgment?
4. Is the patent holder unwilling or unable to take an active part in helping the contingent fee patent lawyers win the case?
5. Is this particular case just not a good “fit” for a particular contingent fee patent attorney or law firm? Patent litigators are every bit as different as clients or patents, and sometimes we just are not right for each other.