Obtaining a patent is one thing. Protecting the rights after assignment of a patent is another. Each are separate activities. The process in the first instance is patent prosecution. The functions associated with the second focus on defending a patent against infringement and fall under litigation, as do those associated with challenging the validity of a patent in the first place.
The array of steps involved in those processes and the different venues available for patent enforcement make for a complex maze, safe navigation of which depends on help of experienced legal pilots. In this post, our goal is to provide readers some insight into the different routes that can arise in the patent enforcement landscape.
A mingling of executive and judicial branches
Founded in the rule of law as we are, everything begins with legislation passed by Congress. That authority stems from the Constitution, giving lawmakers power to enact laws that promote scientific and artistic initiatives and progress. This is done by granting limited, exclusive rights of use to creators through patents.
In the hierarchy of patent rights enforcement, things generally break down along these lines.
Obtaining a patent begins at the U.S. Patent and Trademark Office (USPTO). Challenges to applications can surface from the outset for many different reasons. For example, claims of interference or theft of idea can trigger reviews within the review process. Also, even after a patent is granted, it is possible to initiate reviews, including inter partes reviews, which we have discussed previously.
If the infringing goods involved are imports from a foreign country, a challenge may be possible through another administrative agency, the International Trade Commission.
Assuming a patent exists and remains valid, the enforcement road presents a fork that leads to the federal courts.
Time as a factor
Unsurprisingly, cases that go through the federal court system tend to take longer to resolve than those addressed through the administrative channels. For many years, as a way of covering all bases, cases have often been initiated simultaneously through both enforcement vehicles.
However, in recent years, court decisions and rule changes at the USPTO have sparked hope among many experts that patent dispute resolution may be on a smoother, swifter course. That said, every case is different and there are many unknowns on and beyond the horizon.