As the debate over patent reform begins again, we thought it might be helpful to do some background posts for those of you who don’t live and breathe patent litigation and/or may not be intimately familiar with the proposed reforms.
Typically, a business’s first interaction with a patent troll is receiving a demand letter. (Sometimes the troll skips the demand letter and goes straight to the complaint, which is described below.)
The purpose of a demand letter is to notify a business of a patent owner’s belief that the business infringes one or more patents. In theory, it should identify the patents and give a description of why the patent owner believes the business infringes.
A complaint is the document filed with a court that starts a lawsuit. It’s supposed to provide a defendant with notice of the plaintiff’s claims with enough information for the defendant to be able to respond.
Due to an odd quirk in the rules, however, “enough information” is a pretty low bar in patent cases. It’s enough to name the patent and give a vague description of what the defendant is allegedly doing to infringe.
It is possible to ask the judge to dismiss the case at this point, although it isn’t easy. A defendant has to persuade the judge that even if everything alleged in the complaint is true, the plaintiff still doesn’t have a valid claim.
In a patent case, generally the only way is to argue that the patent is unpatentable subject matter
After the defendant files an answer, the court sets the schedule for the case. The judge will set the length of time for discovery, a target date for trial, and a few other deadlines. The judge will also set down some ground rules which determine whether the case is more or less expensive.
Discovery is where most of the action in a case happens. This is the period where the parties request information from each other, exchange documents, take depositions, and answer questions called interrogatories.
In general, if information is relevant, a party has to produce it unless it’s protected by some sort of privilege. Courts differ widely in how they interpret “relevant,” with some courts requiring production of nearly everything that’s even marginally relevant and others being more restrictive in what they allow parties to request.
A patent claim is supposed to be read “in light of the specification,” meaning that you interpret the claims based on what’s in the application. For example, in the sample claim, what is a “facilitator” (see the first line)? Does the term include a website? Does it require some specific computer application? Does it include a mobile phone?
The parties will actually go through the claims and propose their definitions to each other. Typically, they’ll end up agreeing on a lot of the terms so that the judge only has to decide a few things. (Judges strongly encourage such agreement.)