Use Of Patent Invalidity Search For Initial Defense In Pre-litigation

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Introduction 

Over the years, technology’s importance in business has multiplied. As a result, businesses that develop new technology frequently get patents to safeguard their inventions. Due to the increase in patents, there are now more prospects for patent licensing and cases of patent infringement. In order to invalidate a competitor’s claims and avoid punitive damages, companies that are subject to infringement lawsuits or seek to avoid them frequently choose to conduct patent invalidity searches. This article goes into great detail on patent invalidity searches, including what they are, how they work in prelitigation, and more. 

Table of Contents

Search For Invalidity: A Potent Instrument

Market players in emerging economies and around the world are vying for the technical landscape’s lion’s share with the arrival of Industrial Revolution 4.0. Therefore, it is unavoidable that such conflict will result in one party losing and another winning. The best way to defend against a claim of patent infringement or to boost one’s advantage over a rival by acquiring a tactical or technological edge over that rival is to conduct an invalidity search. By establishing the validity or invalidity of patents in lawsuits for patent infringement, major firms have resolved patent conflicts in the past. However, as a result of ongoing innovation and changing market demands, patent wars are currently on the rise. 
Now you must be wondering where the patent invalidity search is used. 
Let’s break it down for you; 
A patent invalidity search is typically used to either validate a patent (in which case one is the defendant and must demonstrate his claims are valid in order to defend against a potential patent infringement litigation) or to invalidate the claims of a competitor’s patent (also called the plaintiff). In addition to determining a patent’s validity or invalidity, invalidity searches can be used to gauge a patent’s strength for licensing, acquisition, or merger goals. If the defendant is successful, the plaintiff’s patent may be deemed invalid and unable to prevent the sale or manufacture of the contested technology by others. 

What Is A Patent Invalidity Search? 

A patent invalidity search, which is also known as an opposition search, tries to find patent and non-patent documents that may have an impact on the claims of a given patent. A search for patent validity or invalidity is also conducted to assess a patent’s strength and determine how well it can fend off validity challenges. 

You can invalidate patent claims and block patents using the results of this search, which can be helpful in the licensing or firm acquisition process.  

Goal Of The Patent Invalidity Search

The goal of the validity/invalidity search is to either confirm that a patent’s claims can be enforced or, in the alternative, to correspondingly invalidate one or more of a patent’s claims. The search is limited to a time period that is calculated from the priority date of the target patent. 

Patent validity or invalidity searches are extremely thorough because they have virtually endless potential. If a company wants to invalidate a patent held by a rival, it can keep looking until it finds information that will help it in its goal.  

When facing a lawsuit for patent infringement, a patent validity or invalidity search can be used to determine whether there is a chance of an invalidity defense. Prior art searches are used to declare a patent invalid that has been or might be highlighted. It may also be used to proactively evaluate a patent’s validity before enforcing it. Therefore, it is crucial to do the most extensive and detailed invalidity search possible. 

Uses Of Patent Invalidity Search 

Typically, invalidity searches are used for the following activities.  

Invalidate Patent Infringement caused by you: 
You can use a Validity Search to try and invalidate a patent if you have been accused of violating one. 

Prepare for the enforcement of patents: 
A validity search can confirm your ability to enforce a law or reveal earlier undiscovered prior art that could be detrimental to your defense. 

Analyzing whether the technology is currently used is essential to practically every conceivable patent monetization option when it comes to determining the value of a patent. 

For instance, the fundamental rule for assessing whether a piece of technology violates a patent is to interpret the patent claim to determine its breadth and meaning before comparing it to the allegedly infringing product. We are aware that to constitute a patent claim as infringed, every element of the claim must exist in the allegedly infringing product. 

Use Of Patent Invalidity Search In Pre-Litigation  

Here are some simple tricks that are used when patent invalidity searches are carried out for use in pre-litigation cases.  

A short and quick search is done to find a lot of prior-art references that reveal the innovative features of the patent claim broadly, combined with a broad/clause-based mapping report. The time and effort required to record and map claims may be reduced with the aid of these rapid searches. 

The insights and prior-art references can be used effectively to deter accusers and prove that the grounds that they have cited are not strong enough to hold them through the lawsuit. Having stated that, you must first consider the patent’s filing date before starting a search for patent invalidity. You might discover prior art via a patent invalidity search that the previous examiner may have overlooked. This is the best answer if a company is contesting a competitor’s patent or preparing a defense against an accusation of infringement. 

Conclusion

These searches are required not only during litigation and infringement scenarios but also in pre-litigation cases. 

Pre-litigation analysis, also known as pre-filing analysis, is crucial to the final result of a patent lawsuit. Wet TT Consultants thoroughly research the patent(s) to be litigated, leaving no stone unturned, and produce a complete actionable report. This report aids in evaluating a case’s strengths and weaknesses for both lawyers and their clients. We also help lawyers focus on the best claim formulation feasible and create charts with both internal and extrinsic evidence. When getting ready for the Markman hearing, these charts are quite helpful. 

Reach out to TT Consultants if you need professional help regarding Patent Invalidity Search in Pre-Litigation. 

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