Patent Litigation Lawyers Worldwide.

While the names sound similar, they represent opposite ends of the patent lifecycle. Patent Prosecution is the administrative process of negotiating with the patent office to get the patent granted, involving friendly (though bureaucratic) back-and-forth with an examiner. Patent Litigation is the aggressive legal battle that happens after the patent is granted, where you sue a competitor in federal court for stealing your invention. Essentially, prosecution builds the weapon, and litigation fires it; litigation is significantly more expensive, with the American Intellectual Property Law Association estimating the average cost of a patent lawsuit to be between $2 million and $4 million.

A lawyer proves infringement by conducting an “element-by-element” analysis, often using a visual chart called a “claim chart.” To win, they must show that the competitor’s product contains every single limitation listed in your patent claim. If your patent claim describes a chair with “four legs and a red cushion,” and the competitor sells a chair with three legs or a blue cushion, they generally do not infringe. This strict requirement is why lawyers fight so hard during the drafting phase to keep the claim language broad.

Yes, the most common defense in a patent lawsuit is to argue that the patent should never have been granted in the first place. A competitor will search for “prior art”—old documents or products that existed before you filed—to prove your invention wasn’t actually new or non-obvious. If they succeed, the judge invalidates your patent, meaning you not only lose the lawsuit but also lose your intellectual property rights forever. In the US, competitors often use the “Inter Partes Review” (IPR) process at the patent office to invalidate claims because it has a lower burden of proof than federal court.

The Markman Hearing is the “make or break” moment of nearly every patent lawsuit. It is a pre-trial hearing where the judge—not the jury—decides exactly what the specific words in your patent claims mean (e.g., does “processing unit” mean any computer chip or just a specific type?). Since the definition often determines whether the competitor is infringing or not, the entire case often settles immediately after this ruling. Statistics show that once the judge defines the terms, the losing side usually realizes a trial is futile and negotiates a settlement.

Yes, but it is incredibly difficult to obtain. A preliminary injunction is an emergency court order forcing the competitor to pull their product off the shelves before the trial even finishes. To get one, you must prove you will suffer “irreparable harm” that money cannot fix, such as going out of business or losing permanent market share. Since the US Supreme Court’s 2006 eBay decision, courts rarely grant these injunctions to companies that don’t actually make products (like patent trolls), reserving them mostly for direct competitors.

Damages are designed to make you whole. Lost Profits attempt to pay you exactly what you would have earned if the competitor hadn’t stolen your customers, which requires proving that people bought the fake product specifically because of your patented feature. If you can’t prove that, the law defaults to a Reasonable Royalty, which is the hypothetical license fee the competitor should have paid you to use the technology legally. In 2024, the median patent damage award in the US remained high, often driven by these royalty calculations on massive sales volumes.

Willful infringement occurs when a competitor knew about your patent and brazenly copied it anyway, without a valid reason to believe the patent was invalid. If a jury finds willfulness, the judge has the discretion to award “enhanced damages” (up to 3x the actual amount) as a punishment. This is the nuclear option in patent law; however, the Supreme Court’s Halo standard makes it clear that this is reserved for “egregious” misconduct, not just standard business disputes.

Defending against a Patent Troll—a company that buys patents just to sue people—requires a strategy of attrition and invalidation. Since trolls usually want a quick “nuisance settlement” (a payment lower than the cost of fighting), a lawyer often counters by filing an “Inter Partes Review” (IPR) to invalidate the troll’s patent at the USPTO. This is a cheaper and faster way to kill the lawsuit than going to court. Data shows that roughly 80% of IPR petitions result in at least some patent claims being cancelled, making it a highly effective shield against weak troll patents.