Enforcing Your Patent
A patent is a “right to exclude.” Once you have been granted a patent, others cannot use your invention without your permission. But what if someone is using it without your permission?
You can approach them about licensing your patent. Unfortunately, that often doesn’t work.
Companies will often disagree about whether a patent is really a valid patent or whether a product actually infringes a patent. Some large companies even have a “so sue us” attitude, knowing that patent litigation is expensive and hoping that the patent owner will just give up rather than litigate.
As soon as you discover someone is infringing your patent it’s a good idea to contact an experienced patent litigation attorney. Even approaching the company that is infringing the patent to ask for a license is something that needs careful consideration.
Once the infringing party knows you are planning to enforce your patent they could try to “beat you to the punch” by filing a Motion for Declarative Judgment seeking a judgement that either your patent is invalid or they are not infringing. The benefit to them of filing first is they get to decide things such as which court will hear the case, which can be a significant advantage.
Costs to Enforce a Patent
While it does not cost a lot to file a lawsuit, seeing it through can be very expensive.
According to the American Intellectual Property Law Association, the average cost of a patent lawsuit where between $1 million and $25 million is at stake is nearly $3 million.
If you have a strong patent and there is clear infringement, a law firm might take the case on a contingency basis. Most of the time, however, even if a law firm takes a case on a contingency basis the patent owner will pay for out-of-pocket expenses, which can include experts to testify about the infringement. Such costs can easily be in the tens or hundreds of thousands of dollars.
Another option is to work with a patent monetization firm, also known as “patent assertion entity” or PAE. PAEs will often work with patent owners on a shared revenue basis with no cost to the patent owner, or they may offer to buy the patent outright. PAEs are typically very selective about the patents they will accept.