Brett Trout
In the world of intellectual property, securing a patent is just the beginning. The real challenge often lies in defending that patent. The key is crafting you patent not only for breadth, but with an eye toward litigation. The more you prepare your patent for trial, the less likely you are to end up there. The goal is for competitors to look at your patent and decide they would rather stay out of your market or pay you a licensing fee than try to fight your patent in court. As the type of attorney who writes patents is typically not the same type of attorney who fights patents in court, finding a patent attorney who does both can be difficult. But if you want a patent that encourage your competition to avoid court, finding a patent attorney well-versed in both patent prosecution (the process of obtaining a patent) and patent litigation (enforcing or defending against infringement claims) can return large dividends.
Understanding Patent Prosecution vs. Litigation
Patent prosecution involves the process of drafting, filing, and negotiating with the United States Patent and Trademark Office (USPTO) to obtain a valid patent. A skilled prosecution attorney ensures that the patent is strong, broad enough to provide meaningful protection, and properly aligned with the latest legal precedents.
Patent litigation, on the other hand, comes into play when a patent is challenged or infringed upon. This involves lawsuits, settlements, and sometimes courtroom battles. Litigation attorneys need to be aggressive, strategic, and knowledgeable about how patents hold up under scrutiny.
Many attorneys specialize in one area or the other, but patent holders must be prepared for both securing their patents and defending them when challenged.
Why Your Patent Attorney Should Be Experienced in Both Fields
- Stronger Patents Mean Better Defense
- A well-drafted patent considers potential litigation from the outset. Patent attorneys with litigation experience know the weaknesses that can be exploited in court and will draft patents to avoid those pitfalls.
- Litigation-Ready Prosecution Strategy
- If a patent is challenged, having an attorney who understands litigation ensures that the patent has the right legal foundation to hold up in court. Competitors will aggressively challenge patents if they believe they can win.
- Cost-Effective Protection
- Hiring separate attorneys for prosecution and litigation can be expensive and lead to communication breakdowns. A single attorney or firm handling both can streamline the process and improve consistency.
- Strategic Enforcement
- Enforcing a patent requires strategic decision-making. A litigation-savvy attorney can assess whether litigation, licensing, or settlement is the best course of action, maximizing the value of the patent.
Final Thoughts
Whether you’re securing a patent for a new invention or preparing to defend against potential infringement claims, having an attorney who understands both sides of the equation is essential.
If you’re investing in intellectual property, don’t just think about getting the patent—think about protecting it. The best defense is always a strong, well-strategized offense.
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