{"id":152866,"date":"2026-10-30T12:00:09","date_gmt":"2026-10-30T12:00:09","guid":{"rendered":"https:\/\/www.legal500.com\/guides\/chapter\/united-states-patent-litigation\/"},"modified":"2026-10-30T13:11:18","modified_gmt":"2026-10-30T13:11:18","slug":"united-states-patent-litigation","status":"publish","type":"comparative_guide","link":"https:\/\/www.legal500.com\/guides\/chapter\/united-states-patent-litigation\/","title":{"rendered":"United States: Patent Litigation"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-152866","comparative_guide","type-comparative_guide","status-publish","hentry","guides-patent-litigation","jurisdictions-united-states"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Skadden, Arps, Slate, Meagher &amp; Flom<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/www.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/02\/Skadden-Logo.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Skadden, Arps, Slate, Meagher &amp; Flom<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/www.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/02\/Skadden-Logo.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Patent Litigation laws and regulations applicable in United States<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the forum for the conduct of patent litigation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, federal district courts are the primary forum for patent litigation, holding original jurisdiction for all patent cases.\u00a0 They handle primary patent issues like infringement, invalidity, ineligibility, unenforceability, and related matters like ownership, licensing, and contract disputes.\u00a0 They also grant various remedies, primarily damages, and injunctive relief.\u00a0 The Eastern District of Texas is by far the busiest patent venue: in 2025 it received roughly a quarter of all new U.S. patent cases, more than the next two busiest venues, the Western District of Texas and the District of Delaware, combined.\u00a0 The Northern and Central Districts of California also maintain substantial patent dockets.<\/p>\n<p>Another U.S. forum for patent litigation is the International Trade Commission (ITC).\u00a0 The ITC is an independent federal agency that can investigate and adjudicate cases involving unfair trade practices, including importing articles that infringe a U.S. patent.\u00a0 The ITC applies the same substantive patent law as federal district courts, but it is limited to injunctive relief, primarily excluding the importation of infringing products.\u00a0 ITC proceedings are generally faster, typically reaching an evidentiary hearing within about nine to ten months and a final determination within about 16 to 18 months, and competitors often use them in cases involving imported goods like hardware and electronics.\u00a0 A respondent in an ITC investigation is entitled, on request, to a mandatory stay of parallel district court litigation involving the same claims.\u00a0 28 U.S.C. \u00a7 1659.\u00a0 The ITC has also become more accessible to patentees that do not manufacture in the United States: in <em>Lashify, Inc. v. Int\u2019l Trade Comm\u2019n<\/em>, 130 F.4th 948 (Fed. Cir. 2025), the Federal Circuit held that U.S. investments in sales, marketing, warehousing, and distribution can satisfy the ITC\u2019s domestic industry requirement.<\/p>\n<p>Parties can also initiate administrative proceedings before the U.S. Patent and Trademark Office (USPTO) to resolve questions of patent validity.\u00a0 In addition to being the federal agency that grants and administers patents, the USPTO reviews already-issued patents through <em>inter partes <\/em>review (IPR), post-grant review (PGR), and <em>ex parte <\/em>reexamination (XPR).\u00a0 Depending on the circumstances, these proceedings can run parallel to federal district court and ITC infringement actions and may result in a stay in federal district court litigation.\u00a0 As discussed below, however, access to IPR and PGR has narrowed considerably since 2025.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the typical timeline and form of first instance patent litigation proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Federal district courts are the primary forum of first instance for patent litigation.\u00a0 In federal district court, the time from filing a complaint to trial, whether bench or jury, is typically two to two and a half years, and the median time to trial in the Eastern District of Texas is under two years.\u00a0 A typical case proceeds through pleadings, the exchange of infringement and invalidity contentions under local patent rules, fact discovery, a claim construction (<em>Markman<\/em>) hearing, expert discovery, summary judgment, and trial.\u00a0 Infringement, invalidity, and damages are usually tried together (unless good cause exists to modify this).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can interim and final decisions in patent cases be appealed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Interim decisions in patent cases, such as rulings on claim construction, discovery motions, or summary judgment, are generally not immediately appealable. \u00a0However, some exceptions allow for certain interlocutory appeals, such as appeals from orders granting or refusing an injunction.<\/p>\n<p>One kind of interim appeal often sought is a writ of mandamus from the Court of Appeals for the Federal Circuit (CAFC), ordering a district judge to transfer a case under 28 U.S.C. \u00a7 1404(a), which provides for transfer \u2018[f]or the convenience of parties and witnesses, in the interest of justice.\u2019\u00a0 U.S. patentee-plaintiffs often bring suit in the Eastern or Western Districts of Texas, where defendants commonly seek mandamus for transfer.<\/p>\n<p>Final decisions in patent cases may be appealed.\u00a0 The CAFC has exclusive appellate jurisdiction over patent cases from district courts and ITC and USPTO patent proceedings.\u00a0 The CAFC decisions may be appealed to the U.S. Supreme Court.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Which acts constitute direct patent infringement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under 35 U.S.C. \u00a7 271(a), anyone who \u2018makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States\u2019 any patented invention during the term of that patent directly infringes.\u00a0 There are two types of direct infringement: (1) literal and (2) under the doctrine of equivalents.<\/p>\n<p><strong>Literal infringement:<\/strong> Literal infringement requires that the accused product or process practice each and every limitation as recited in a claim.<\/p>\n<p><strong>Doctrine of equivalents: <\/strong>Under the doctrine of equivalents, an accused product or process may infringe if there is substantial equivalence between the elements of the accused product and the claimed invention.<\/p>\n<p><strong>Produced outside the U.S.: <\/strong>Note that \u00a7 271(a) would not apply to a product made overseas using <strong>an infringing process<\/strong> if the product itself were not covered by a patent.\u00a0 \u00a7 271(g) closes this loophole by creating liability for importing into the United States \u2018a product which is made by a process patented in the United States.\u2019<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do the concepts of indirect patent infringement or contributory infringement exist? If so, what are the elements of such forms of infringement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, there are two types of indirect infringement: (1) induced infringement under 35 U.S.C. \u00a7 271(b) and (2) contributory infringement under 35 U.S.C. \u00a7 271(c).\u00a0 Induced infringement occurs when someone induces\u2014persuades, instructs, or encourages\u2014someone else to infringe a patent, and that person actually does infringe.\u00a0 Contributory infringement holds someone liable for providing a direct infringer with a specialized tool or part that enables infringement.<\/p>\n<p><strong>Induced infringement:<\/strong> A party induces infringement \u2018by actively and knowingly aiding and abetting another\u2019s direct infringement.\u2019\u00a0 <em>C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc.<\/em>, 911 F.2d 670, 675 (Fed. Cir. 1990).\u00a0 To prove induced infringement, a patent owner must show that: (1) someone directly infringed; (2) the accused party knowingly took steps that led to those infringing acts; and (3) the accused party knew of the patent and knew or was willfully blind to the fact that the acts were infringing.\u00a0 <em>See Power Integrations, Inc. v. Fairchild Semiconductor Int\u2019l, Inc.<\/em>, 843 F.3d 1315, 1332 (Fed. Cir. 2016).\u00a0 The Supreme Court recently reinforced the \u2018active steps\u2019 requirement.\u00a0 In <em>Hikma Pharms. USA Inc. v. Amarin Pharma, Inc.<\/em>, 608 U.S. 580, 581 \u00a0(2026), the Court unanimously held that inducement requires affirmative, rather than passive, steps to encourage infringement, and that a generic drug maker\u2019s label carving out the patented use, combined with routine statements describing its product as a generic equivalent of the branded drug, did not plausibly state a claim for induced infringement.<\/p>\n<p><strong>Contributory infringement: <\/strong>A party contributorily infringes when it imports, sells, or offers to sell a material component of an infringing product or process, knowing that the product or process will infringe.\u00a0 Making a component by itself is not enough for contributory infringement.\u00a0 To prove contributory infringement, a patent owner must show that: (1) someone directly infringed; (2) the accused party sells, offers to sell, or imports within the United States a material component of that infringing product, material, apparatus, or process; (3) the component is not a staple article or suitable for substantial non-infringing use; and (4) the accused party knew of the patent and knew or was willfully blind to the fact that the component is especially made or adapted for use in infringement.\u00a0 <em>See Fujitsu Ltd. v. Netgear Inc.<\/em>, 620\u00a0F.3d 1321, 1326 (Fed. Cir. 2010).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How is the scope of protection of patent claims construed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A patent\u2019s claims define the scope of the invention and provide the measure by which the jury determines whether an accused product or process infringes. \u00a0To make that task easier, a court may interpret the meaning and scope of claims through a process called claim construction.<\/p>\n<p>During claim construction, terms are generally given their plain and ordinary meaning as understood by a person of ordinary skill in the art at the time of the invention.\u00a0 This person of ordinary skill in the art is \u2018deemed to read the claim term not only in the context of the particular claim in which the disputed term appears but in the context of the entire patent, including the specification.\u2019\u00a0 <em>Phillips v. AWH Corp.<\/em>, 415 F.3d 1303, 1313 (Fed. Cir. 2005) (<em>en banc<\/em>).\u00a0 If necessary, the court may also consider extrinsic evidence (such as dictionaries, treatises, expert testimony, etc.) to interpret the meaning of claim terms.<\/p>\n<p>A patent owner can vary a term\u2019s plain and ordinary meaning through its own lexicography (by providing a specific definition for a term in the patent\u2019s specification) or prosecution disclaimer (through statements made during patent prosecution to distinguish the invention from and overcome prior art).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key defences to patent infringement?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Key defenses to patent infringement are non-infringement, invalidity, and equitable defenses.<\/p>\n<p><strong>Non-infringement:<\/strong> An accused party can argue that its product or process does not infringe.\u00a0 To infringe, a product or process must meet all limitations of the asserted claim, either literally or under the doctrine of equivalents.\u00a0 If an accused product does not meet all limitations, then it does not infringe.<\/p>\n<p><strong>Ineligibility<\/strong>: Section 101 requires claimed inventions to be directed to patent-eligible subject matter, meaning that the invention must be human-made and useful.\u00a0 A patent claim is ineligible under 35 U.S.C. \u00a7 101 if it is directed to an abstract idea, a law of nature, or a natural phenomenon without adding any transformative inventive concept.\u00a0 Patent eligibility is a common issue for software patents, in part because the Supreme Court has yet to resolve uncertainty as to how courts should apply <em>Alice Corp. v. CLS Bank Int\u2019l<\/em>, 573 U.S. 208 (2014) to such patents.\u00a0 <em>See<\/em>,<em> e.g.<\/em>,<em> Audio Evolution Diagnostics, Inc. v. United States<\/em>, 145 S. Ct. 2777 (2025) (denying certiorari for Federal Circuit ineligibility ruling on human organ sound recording patent);<em> Eolas Techs. Inc. v. Amazon.com, Inc.<\/em>, 2024 WL 371959 (Fed. Cir. Feb. 1, 2024), <em>cert. denied<\/em>, 145 S. Ct. 149 (2024) (denying certiorari over invalidation of software patents on subject matter eligibility grounds).\u00a0 At the USPTO, the Appeals Review Panel\u2019s precedential decision in <em>Ex parte Desjardins<\/em> (September 2025) directs examiners not to reject artificial intelligence (AI) and other software claims as abstract where the claims recite a genuine technological improvement, but that decision binds examiners, not courts.\u00a0 In court, AI patents are subject to the same eligibility rules as any other patent.\u00a0 In <em>Recentive Analytics, Inc. v. Fox Corp.<\/em>, 134 F.4th 1205 (Fed. Cir. 2025), <em>cert. denied<\/em>, 146 S. Ct. 891 (2025), the Federal Circuit\u2019s first eligibility decision on machine learning claims, the court held ineligible claims that applied generic machine learning techniques to a new data environment without claiming any improvement to the techniques themselves.\u00a0 Legislative reform through the Patent Eligibility Restoration Act remains pending in Congress.<\/p>\n<p><strong>Invalidity<\/strong>: An accused party can challenge the patent\u2019s validity as a defense.\u00a0 A patent may be invalid based on anticipation by the prior art, obviousness over the prior art, lack of enablement, lack of written description, or indefiniteness.\u00a0 An invalid patent cannot be infringed.<\/p>\n<p><strong>Equitable defenses:<\/strong> An accused party can also raise certain equitable defenses that render the patent unenforceable against that party, such as equitable estoppel, implied license, and intervening rights.\u00a0 An accused party can also raise equitable defenses that render the patent unenforceable against anyone, such as alleging inequitable conduct committed during patent prosecution before the USPTO.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key grounds of patent invalidity?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><strong>Lack of novelty:<\/strong> A patent claim is invalid under 35 U.S.C. \u00a7 102 if it is anticipated by a single prior art reference that discloses all its elements, either expressly or inherently.<\/p>\n<p><strong>Obviousness:<\/strong> A patent claim is invalid under 35 U.S.C. \u00a7 103 if it is obvious over prior art, whether it is a combination of prior art references or a single reference modified given the knowledge of a person having ordinary skill in the art, considering the scope and content of the prior art, the differences between the prior art and the claims, the level of ordinary skill in the art, and any objective indicia of nonobviousness, such as commercial success, long-felt but unsolved need, failure of others, or unexpected results.<\/p>\n<p><strong>Lack of written description:<\/strong> A patent claim is invalid under 35 U.S.C. \u00a7 112(a) if it lacks sufficient written description.\u00a0 A patent must have sufficient disclosure to reasonably convey to those skilled in the art that the inventor had possession of the claimed invention.<\/p>\n<p><strong>Lack of enablement: <\/strong>A patent claim is invalid under 35 U.S.C. \u00a7 112(a) if it does not enable a person of ordinary skill in the art to practice the claimed invention without undue experimentation.<\/p>\n<p><strong>Indefiniteness: <\/strong>A patent claim is also invalid under 35 U.S.C. \u00a7 112(b) for indefiniteness if the claim, read in light of the specification and the prosecution history, fails to inform a person of ordinary skill in the art about the scope of the invention with reasonable certainty.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How is prior art considered in the context of an invalidity action?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Prior art is \u2018knowledge that is available, including what would be obvious from it, at a given time, to a person of ordinary skill in an art.\u2019 <em>Kimberly-Clark Corp. v. Johnson &amp; Johnson<\/em>, 745 F.2d 1437, 1453 (Fed. Cir. 1984) (<em>en banc<\/em>).\u00a0 Prior art can take the form of patents, applications for patents, other printed publications, publicly used products, or any other reference otherwise publicly available before the effective filing date of the claimed invention.<\/p>\n<p>Prior art is typically used to argue that a patent is anticipated or obvious.\u00a0 A patent claim is invalid if it is anticipated by a single prior art reference that discloses all of its elements, either expressly or inherently\u2013i.e., \u2018[t]hat which infringes, if later, would anticipate, if earlier.\u2019\u00a0 <em>Peters v. Active Mfg. Co.<\/em>, 129 U.S. 530, 537 (1889).\u00a0 A patent claim is invalid as obvious \u2018if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art.\u2019\u00a0 35 U.S.C. \u00a7 103.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can a patentee seek to amend a patent that is in the midst of patent litigation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A patentee can seek to amend a patent during district court litigation by filing a reissue application at the USPTO or by seeking to amend a patent during IPR or XPR proceedings.\u00a0 Patentees will generally need to retain counsel separate from their district court litigation counsel to seek amendments.\u00a0 Amended claims must not enlarge the patent\u2019s scope (broadening is permitted only through a reissue application filed within two years of the patent\u2019s issuance, and never in IPR) or introduce new matter, and may be subject to third-party intervening rights.\u00a0 Importantly, amending a patent can significantly reduce or eliminate the damages the patentee can recover in the district court litigation.\u00a0 The amended claims typically cannot support past damages, unless the patentee shows that there have been no substantial changes to the original claims.\u00a0 If substantial changes have been made, the patentee is only entitled to infringement damages for the period following the amendment.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is some form of patent term extension available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Two mechanisms can extend a patent\u2019s term: patent term adjustment (PTA), which compensates owners of utility and plant patents for delays during prosecution, and patent term extension (PTE), which compensates for time lost during regulatory review.<\/p>\n<p>A PTA compensates for delays caused by the USPTO during patent prosecution.\u00a0 The USPTO guarantees, with some limitations, that it will process an application within three years from the initial filing date.\u00a0 Any delay after that period will result in an extension of one day for every day over the three-year period until the patent is issued.<\/p>\n<p>A PTE compensates for time lost during the regulatory review period (for example, before the Food and Drug Administration (FDA)) before a product can be commercially marketed or used.\u00a0 PTE is capped at five years, and the patent\u2019s remaining term after regulatory approval cannot exceed 14 years.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How are technical matters considered in patent litigation proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Technical matters are typically presented in two ways:<\/p>\n<p><strong>Court-appointed technical expert<\/strong>: The district court may appoint a technical expert to assist with technology tutorials, claim construction, discovery, and dispositive motions like summary judgment.\u00a0 The court may ask parties to submit nominations, but may appoint any expert of its choosing.<\/p>\n<p><strong>Party experts<\/strong>: Each party may retain its own technical experts (who do not share in the case\u2019s success) to discuss issues such as infringement, validity, and the level of ordinary skill in the art.\u00a0 Expert testimony at trial is often subject to motions seeking to exclude some or all the testimony from being presented to the jury.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is some form of discovery\/disclosure and\/or court-mandated evidence seizure\/protection (e.g. saisie-contrefa\u00e7on) available, either before the commencement of or during patent litigation proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The United States does not have a seizure mechanism like <em>saisie-contrefa\u00e7on<\/em>.\u00a0 Instead, the United States has a system for seizing infringing goods at its borders through U.S. Customs and Border Protection and uses court orders to preserve evidence during litigation.<\/p>\n<p>Federal district courts also embrace liberal discovery and disclosure to prevent \u2018trial by surprise,\u2019 reducing court congestion and encouraging early resolution of matters.\u00a0 Discovery obligations also impose financial and administrative burdens, incentivizing settlements.<\/p>\n<p>\u2018Unless otherwise limited by court order,\u2019 parties \u2018may obtain discovery regarding any nonprivileged matter that is relevant to any party\u2019s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties\u2019 relative access to relevant information, the parties\u2019 resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.\u2019\u00a0 Fed. R. Civ. P. 26(b).\u00a0 While courts have latitude to broadly interpret relevancy and proportionality, most courts favor the party requesting discovery.\u00a0 While the requesting party is responsible for showing relevance, the opposing party bears the burden of establishing that the proportionality test is not met.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there procedures available which would assist a patentee to determine infringement of a process patent?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The patent owner bears the burden of proving infringement by a preponderance of the evidence.\u00a0 This is true for both system and method claims, with minimal exceptions.<\/p>\n<p>In actions alleging infringement of a process patent based on the importation, sale, offer for sale, or use of a product made by that patented process, the burden shifts to the accused infringer to show \u2018that the product was not made by the process,\u2019 if the court finds \u2018(1) that a substantial likelihood exists that the product was made by the patented process, and (2) that the plaintiff has made a reasonable effort to determine the process actually used in the production of the product and was unable to so determine.\u2019\u00a0 35 U.S.C. \u00a7 295; <em>see id. <\/em>\u00a7 271(g).\u00a0 \u2018Because the accused infringer is in a far better position to determine the actual manufacturing process than the patentee, fairness dictates that the accused, likely the only party able to obtain this information, reveal this process or face the presumption of infringement.\u2019\u00a0 <em>Creative Compounds, LLC v. Starmark Lab\u2019ys<\/em>, 651 F.3d 1303, 1314\u201315 (Fed. Cir. 2011).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there established mechanisms to protect confidential information required to be disclosed\/exchanged in the course of patent litigation (e.g. confidentiality clubs)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Due to the complexity and confidentiality of technical, sales, and marketing information necessary to patent cases, parties often request the court\u2019s permission to enter a protective order. \u00a0This order limits the disclosure of sensitive information to a select group, such as a limited number of in-house counsel or only outside counsel, and prohibits disclosure of such information to the public.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, there are three kinds of post-grant opposition proceedings in which the USPTO may reconsider whether a patent was correctly granted: (1) <em>inter partes<\/em> review (IPR) under 35 U.S.C. \u00a7\u00a7 311\u2013319, (2) post-grant review (PGR) under 35 U.S.C. \u00a7\u00a7 321\u2013329, and (3) <em>ex parte<\/em> reexamination (XPR) under 35 U.S.C. \u00a7\u00a7 301\u2013305.<\/p>\n<p>Parties can file such proceedings concurrently with district court litigation.\u00a0 Depending on the circumstances, a district court may either proceed in parallel or stay proceedings pending the USPTO\u2019s determination, since the USPTO may invalidate some or all claims, simplifying the district court\u2019s case.\u00a0 The USPTO may also decline to institute IPR proceedings based on ongoing district court litigation.<\/p>\n<p>Access to IPR and PGR has narrowed markedly since 2025.\u00a0 In March 2025, the USPTO rescinded earlier guidance limiting discretionary denials and began deciding discretionary denial issues in a separate, preliminary stage.\u00a0 Since October 2025, the USPTO Director has personally decided whether to institute each IPR and PGR, often by summary notice. The Director bases these decisions on new considerations, such as whether the parties\u2019 products are manufactured in the United States.\u00a0 The USPTO has also proposed rules that would bar institution where the challenged claims have previously been upheld or where a parallel district court or ITC proceeding is likely to decide validity first, and that would require petitioners to forgo prior art invalidity defenses in other forums.\u00a0 Institution rates have fallen sharply as a result, from roughly two-thirds of petitions in late 2024 to well under half in early 2026.\u00a0 Those rates understate the change, because many accused infringers have stopped filing petitions altogether: petition filings in fiscal year 2026 are on pace to fall to roughly a third of the prior year\u2019s total.\u00a0 Accused infringers therefore can no longer count on the USPTO as a validity forum. \u00a0Conversely, ex parte reexamination has gained renewed importance.\u00a0 Because these rules continue to shift, parties that intend to use these proceedings should consult counsel early.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To what extent are decisions from other fora\/jurisdictions relevant or influential, and if so, are there any particularly influential fora\/jurisdictions?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Decisions of other intellectual property (IP) jurisdictions and comparative patent law have a limited role in U.S. patent litigation. Decisions from other jurisdictions are persuasive, but not controlling authority for district courts. Comparative patent law may be important on specific ownership issues, contract and licensing rights, and privilege during discovery.\u00a0 Increasingly, however, foreign courts are willing to adjudicate U.S. patent rights.\u00a0 Following the Court of Justice of the European Union\u2019s decision in <em>BSH Hausger\u00e4te GmbH v. Electrolux AB<\/em> (Case C-339\/22, February 25, 2025), courts in EU member states may hear infringement claims under non-EU patents, including U.S. patents, against defendants domiciled there.\u00a0 S. courts have responded with anti-suit injunctions (see below).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How does a court determine whether it has jurisdiction to hear a patent action? And in what circumstances will a court anti-suit to preserve its jurisdiction.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><u>Jurisdiction<\/u><\/p>\n<p>A court must have both subject matter jurisdiction and personal jurisdiction to hear a case.\u00a0 Federal district courts have congressionally granted subject matter jurisdiction over patent actions under 28 U.S.C. \u00a7 1338. \u00a0As for personal jurisdiction, there is no rule specific to patent cases.\u00a0 Plaintiffs generally must show that the defendant is either \u2018essentially at home\u2019 in the state or that it possesses certain \u2018minimum contacts\u2019 with the state such that the suit does not \u2018offend traditional notions of fair play and substantial justice\u2019 (there are also traditional bases of personal jurisdiction such as consent and waiver).\u00a0 <em>World-Wide Volkswagen Corp. v. Woodson<\/em>, 444 U.S. 286, 291 (1980).<\/p>\n<p>Even where jurisdiction is proper, it is important to consider the possibility that the particular district court is not the right <strong>venue<\/strong>, a different but related doctrine to personal jurisdiction. Unlike personal jurisdiction, venue does have specific rules for patent cases. <em>See <\/em>28 U.S.C. \u00a7 1400(b).\u00a0 Applying this statute in 2017, the Supreme Court narrowed the scope of where venue is proper in patent cases against corporate defendants to states (1) in which defendants are incorporated or (2) in which they have regular and established places of business and have committed acts of infringement.\u00a0 <em>TC Heartland LLC v. Kraft Foods Grp. Brands LLC<\/em>, 581\u00a0U.S.\u00a0258, 267\u201368 (2017).\u00a0 <em>TC Heartland<\/em> initially curtailed \u2018forum shopping\u2019 in patent cases, where patentee-plaintiffs chose the Eastern or Western Districts of Texas to benefit from perceived strategic advantages.\u00a0 Because foreign defendants may be sued in any district, and many large companies maintain places of business in Texas, the Eastern District of Texas has since regained its position as the busiest patent venue in the country.<\/p>\n<p>Finally, even where venue is <strong>proper<\/strong>, it may be inconvenient, and a district court may be convinced to transfer the case to a more convenient forum under the doctrine of <em>forum non\u00a0conveniens<\/em>, codified in 28 U.S.C. \u00a7 1404(a). Disputes over venue are common where plaintiffs have chosen advantageous district courts, and where transfer is denied, defendants often seek a writ of mandamus from the CAFC to command transfer to a more convenient forum.<\/p>\n<p><u>Anti-suit injunctions <\/u><\/p>\n<p>Once a court determines it has jurisdiction, it may on rare occasion use an anti-suit injunction (\u2018ASI\u2019) to preserve it. An ASI is an interlocutory remedy issued by a court that prohibits a party from initiating or continuing parallel litigation in another jurisdiction. In the U.S., ASIs have been issued in a wide range of commercial, antitrust and bankruptcy actions involving foreign parties or subject matter.\u00a0 In recent years, ASIs have also been used significantly in IP disputes that involve the adjudication of global fair, reasonable and non\u2011discriminatory (\u2018FRAND\u2019) rates for standard-essential-patent (\u2018SEP\u2019) licenses.\u00a0 Jorge L. Contreras,<em> Anti-Suit Injunctions and Jurisdictional Competition in Global FRAND Litigation: The Case for Judicial Restraint<\/em>, N.Y.U. J. Intell. Prop. &amp; Ent. L. 171 (2021).<\/p>\n<p>S. courts apply a three-part framework to decide whether issuing an ASI is appropriate. First, the court examines whether the parties and issues are the same as between the domestic and foreign suits, and whether resolution of the domestic suit is dispositive of the foreign action. <em>Telefonaktiebolaget LM Ericsson v. Lenovo (U.S.), Inc.<\/em>, 120 F.4th 864, 870 (Fed. Cir. 2024).\u00a0 If so, it considers whether one of the anti-suit injunction factors applies, including whether the foreign litigation would (1) frustrate a policy of the forum issuing the injunction; (2) be vexatious or oppressive; (3) threaten the issuing court\u2019s <em>in rem <\/em>or <em>quasi in rem<\/em> jurisdiction; or (4) prejudice other equitable considerations.\u00a0 <em>Id. at 869.<\/em>\u00a0 If at least one of the factors is present, the court must assess whether the ASI\u2019s impact on comity, or its respect for the laws of other jurisdictions is \u2018tolerable.\u2019\u00a0 If so, the court may issue the ASI.\u00a0 <em>Id. at 870<\/em> (citing <em>Microsoft Corp. v. Motorola, Inc.<\/em>, 696 F.3d 872, 881 (9th Cir. 2012)).\u00a0 In the IP context, ASIs are a powerful, but infrequently used, tool for courts to preserve jurisdiction, most often used in litigation involving SEP licenses.\u00a0 ASIs have recently extended beyond the SEP context.\u00a0 In early 2026, after a patentee relied on <em>BSH<\/em> to assert U.S. patents against BMW in the Munich Regional Court, the Western District of Texas granted an ASI ordering the patentee to withdraw the German actions, holding that the infringement of U.S. patents is a matter for U.S. courts.\u00a0 As foreign courts continue to assert jurisdiction over U.S. patents, similar ASI motions are likely.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Nearly all heavy patent jurisdictions encourage ADR to reduce the burdens on the district court. Private resolution also helps the parties find a mutually agreeable business solution. Many jurisdictions require at least one ADR session, and in other instances, the parties may seek, and\/or the district court may order, multiple ADR sessions without limit.\u00a0 The vast majority of the cases settle through these sessions or later, after key rulings.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><strong>Pre-filing diligence:<\/strong> Any lawyer signing a complaint alleging patent infringement certifies that they have conducted a reasonable legal and factual inquiry underlying the allegations in the complaint. A failure to do so may subject the lawyer and the client to monetary and other sanctions.<\/p>\n<p><strong>Six-year limitations period: <\/strong>While there is no \u2018limitations period\u2019 per se, under 35 U.S.C. \u00a7\u00a0286, a patentee typically cannot recover for any infringement committed more than six years prior to the filing of the infringement complaint or counterclaim.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The patent owner has standing to bring a patent infringement action against an accused infringer.\u00a0 An exclusive licensee holding all substantial rights in the patent, such that its license amounts to an assignment, may sue in its own name; an exclusive licensee holding fewer rights generally must join the patent owner.\u00a0 A non-exclusive licensee lacks standing to sue.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the district court, a party accused of infringing a patent or who faces a credible threat of such accusation may have standing to bring a declaratory judgment action to challenge the validity or scope of the patent if there is an actual controversy between the parties that is ripe for judicial resolution.<\/p>\n<p>There is no standing requirement before the USPTO, and any party other than the patent owner can request IPR, PGR, or XPR.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are interim injunctions available in patent litigation proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Preliminary injunctions are available but are \u2018an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.\u2019\u00a0 <em>Winter v. Nat. Res. Def. Council, Inc.<\/em>, 555 U.S. 7, 22 (2008).\u00a0 A patent owner must show it is (1) likely to succeed on the merits, (2) likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest.<\/p>\n<p>Since the <em>eBay v. MercExchange<\/em> decision in 2006, courts have adopted a strict interpretation of the standard and have rarely granted injunctions.\u00a0 547 U.S. 388 (2006).\u00a0 In June 2025, the U.S. Department of Justice and USPTO jointly filed a statement of interest urging courts to give greater weight to the difficulty of calculating damages when assessing irreparable harm, though the patentee withdrew its preliminary injunction motion before the court ruled.\u00a0 <em>Radian Memory Sys. LLC v. Samsung Elec. Co.<\/em>, No. 2:24-cv-1073, slip op. at 52 (E.D. Tex. June 24, 2025).\u00a0 The Federal Circuit has since confirmed that no presumption of irreparable harm applies at the preliminary injunction stage, even where the patentee makes a strong showing of validity and infringement.\u00a0 <em>Socket Solutions, LLC v. Import Global, LLC<\/em>, No. 25-1121, slip op. at 41 (Fed. Cir. Aug. 4, 2026).\u00a0 Preliminary injunctions therefore remain rare outside disputes between direct competitors.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Damages are the most commonly sought and awarded remedy in patent infringement cases. \u00a0After an infringement verdict, a patent owner is entitled to compensation for the infringement, including interest and costs as determined by the court. \u00a0This compensation may cover:<\/p>\n<p>&nbsp;<\/p>\n<ul>\n<li><strong>Damages proven at trial<\/strong>: The primary damages established during the trial, which include a reasonable royalty, what a willing licensee would have agreed to at a hypothetical negotiation, or lost profits caused by the infringement.<\/li>\n<li><strong>Supplemental damages<\/strong>: For additional infringing conduct occurring after the trial.<\/li>\n<li><strong>Pre- and post-judgment interest<\/strong>: Interest accrued before and after the judgment.<\/li>\n<li><strong>Ongoing royalty<\/strong>: For continued infringement post-judgment.<\/li>\n<\/ul>\n<p>In cases of egregious infringement, the court may award up to treble damages. \u00a0Additionally, in exceptional cases, the prevailing party may be awarded attorneys\u2019 fees. \u00a0Injunctive relief, either preliminary at the start of a case or permanent at the end, may also be available but is not guaranteed.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Patentees are entitled to \u2018damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.\u2019\u00a0 35 U.S.C. \u00a7 284.\u00a0 Patentees generally pursue damages based on lost profits due to infringement or a reasonable royalty to compensate for infringement.<\/p>\n<p>To recover lost profits, the patentee must show (1) a demand for the patented product; (2) the absence of acceptable non-infringing substitutes; (3) its own manufacturing and marketing capability to meet demand for the patented product; and (4) the amount of profit lost.<\/p>\n<p>To recover royalty-based damages, patentees can proffer an established royalty or argue for a \u2018reasonable royalty.\u2019\u00a0 The more common approach for calculating a reasonable royalty is a hypothetical negotiation between the patentee and infringer at the time the infringement began.\u00a0 Another method is the analytical method, which focuses on the infringer\u2019s projected profit for the infringing product.\u00a0 Courts closely scrutinize the reliability of damages expert testimony.\u00a0 In <em>EcoFactor, Inc. v. Google LLC<\/em>, 137 F.4th 1333 (Fed. Cir. 2025) (en banc), the Federal Circuit held that a district court must exclude a damages expert\u2019s royalty opinion that is not based on sufficient facts or data, and ordered a new trial on damages.\u00a0 Large verdicts nonetheless remain possible.\u00a0 In September 2026, a federal jury in the Southern District of California returned a verdict of approximately $5.7 billion for Taction Technology on patents covering haptic feedback technology, reportedly the largest patent damages verdict in U.S. history. How it fares under the scrutiny the Federal Circuit applied in <em>EcoFactor <\/em>(and in other cases) will be closely watched.<\/p>\n<p>A patentee may also recover enhanced damages, up to three times the amount awarded, where a court finds the infringer\u2019s conduct egregious.\u00a0 This typically means willful infringement.\u00a0 To make this determination, courts consider a number of factors, including but not limited to: deliberate copying; good-faith belief in invalidity or non-infringement; litigation behavior; closeness of the case; the size, financial condition, and motivation of the infringing party; and the duration, remediation, and concealment of the infringement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How readily are final injunctions granted in patent litigation proceedings?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Permanent injunctions are not granted as a matter of course.\u00a0 A patentee must demonstrate (1)\u00a0irreparable harm, (2) that a legal remedy (damages) alone would be inadequate, (3) that the balance of hardships favors an injunction, and (4) that the public interest would not be disserved by an injunction.\u00a0 This generally means that, to get an injunction, a patentee must show competitive harm\u2014such as price erosion, lost market share, and damage to goodwill and reputation.\u00a0 If the court does not award an injunction, it may order an ongoing royalty for any infringement after judgment.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>A party may file a complaint for declaratory judgment of non-infringement in district court.\u00a0 The party must establish that there is a case or controversy\u2013i.e., an actual dispute of sufficient immediacy and reality between the parties.\u00a0 In making this determination, courts look to the presence of a dispute as to a legal right, how far in the future the potential infringement is, and the likelihood that the alleged infringing product will indeed infringe if it is produced as designed.\u00a0 Notice of infringement from a patent owner can satisfy the case or controversy requirement, in which case a potential defendant in an infringement action can use a declaratory judgment action to choose the forum.\u00a0 To avoid this risk, notice letters should not contain an \u2018enforcement or defense effort.\u2019<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In the United States, each party generally bears its own litigation expenses\u2014e.g., attorneys\u2019 fees, expert fees, and costs\u2014whether in district court, administrative agency, or on appeal.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can the successful party to a patent litigation action recover its costs?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under 35 U.S.C. \u00a7 285, a district court may award reasonable attorney fees to the prevailing party in \u2018exceptional cases.\u2019\u00a0 An exceptional case \u2018is simply one that stands out from others with respect to the substantive strength of a party\u2019s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.\u2019\u00a0 <em>Octane Fitness, LLC v. ICON Health &amp; Fitness, Inc.<\/em>, 572 U.S. 545, 554 (2014).\u00a0 District courts determine whether a case is \u2018exceptional\u2019 on a case-by-case basis, considering the totality of the circumstances.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The most significant growth areas in patent litigation in the United States are biotechnology, software, and consumer electronics, fueled by the growth and integration of cloud services and AI into our daily lives.\u00a0 Patent filings rose sharply in 2025 to their highest level in a decade, driven largely by suits that non-practicing entities (NPEs) brought in the Eastern District of Texas, many of them backed by third-party litigation funding.\u00a0 Patents covering AI, semiconductors, and wireless connectivity are especially frequent subjects of these suits.\u00a0 AI-related patents receive no special treatment.\u00a0 Only natural persons can be named as inventors, <em>Thaler v. Vidal<\/em>, 43 F.4th 1207 (Fed. Cir. 2022), and the USPTO\u2019s November 2025 inventorship guidance treats AI as a tool, applying the same conception standard to AI-assisted inventions as to any other.\u00a0 AI patents in litigation face the same eligibility, written description, and enablement challenges as other software patents.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The most contentious issue is likely to be access to USPTO validity review.\u00a0 The USPTO\u2019s expanded use of discretionary denial, centralized institution decisions, and proposed institution rules have drawn legal and legislative challenges, and their outcome will determine whether accused infringers retain a meaningful alternative to challenging validity in district court.<\/p>\n<p>Injunctions\u2013whether exclusion orders in the ITC or injunctions in district court\u2013will also remain contentious, particularly as the U.S. government has urged courts to grant them more readily.\u00a0 Injunctive relief is generally granted against a competitor and can impact the marketplace and competitive landscape.\u00a0 Battles for market access and market share are hard-fought.<\/p>\n<p>Also likely to be contentious is the enforcement of standard-essential patents (SEPs), which cover technologies that are essential to comply with a technical standard, such as wireless communication, video compression, or internet protocols.\u00a0 SEPs are typically subject to a commitment by the patent owner to license them on fair, reasonable, and non-discriminatory (FRAND) terms to anyone who implements the standard.\u00a0 Still, there are many disputes over what constitutes FRAND terms, how to determine them, and how to resolve them in litigation or arbitration, and these disputes increasingly give rise to cross-border jurisdictional conflicts, including anti-suit injunctions.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the biggest challenges and opportunities confronting the international patent system?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>One of the biggest challenges and opportunities confronting the international patent system remains harmonization.\u00a0 The ever-increasing diversity of the global innovation landscape, combined with the complexity of global supply chains, makes harmonization and coordination across borders essential.\u00a0 It also presents the opportunity to foster a more inclusive and accessible patent system, improve the quality of patents, and improve the efficiency of patent prosecution.\u00a0 The Unified Patent Court (UPC) is a good test case, and its successes and learnings will likely influence more global efforts.\u00a0 Now in its fourth year, the UPC, together with the <em>BSH<\/em> decision, has made Europe an increasingly attractive venue for multinational enforcement campaigns, including against U.S. companies.\u00a0 The resulting jurisdictional competition between courts, reflected in the rise of anti-suit and anti-anti-suit injunctions, is likely to be a defining challenge for the international patent system in the coming years.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">6872<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/www.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/152866","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/www.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/www.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=152866"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}