Sheer carelessness while suing someone for infringement of your patent can call in trouble for you. You might have to pay the defendant's attorneys fee. Therefore, you should be very careful and must review the below mentioned points before charging anybody of infringement.
Get acquainted with your business objectives
Are you looking for money (any reasonable payment, lost profits, etc)? Or, you are seeking a ban/court order that doesn't permit infringer from infringing the patent? Is your ultimate goal to make your point clear to your competitors or you just want to talk and negotiate a license? You must know that once litigation starts, you cannot accomplish your goals. So, it is important to review your business objectives, before litigation starts.
Study infringement issue carefully and get ascertained of any invalidity issues
Check out for the weaknesses as well as strengths of your patent. Determine the facts such as should you hire an independent law firm for impartial assessment or not. Also, cross check the defendant's patents on the particular entity. However, do study strengths as well as weaknesses of defendant's patent.
Find out competitive place of invention
Study the scope whether the defendant can redesign your patent or not? Is the invention commercially beneficial and has future prospects? Look for the competitive products as well as services related to the invention. Is the invention good enough to create money on its own or is it successful after marketing?
Compare your product with the infringers product
Is your product at a loss or gain in the market? Are consumers seriously interested in your product? Is your product doing well as compared to the other products? Is the defendant's product anywhere near your product?
Look for the damages
Make an estimate of the damages. Are there any lost profits? What amount of royalty can you draw? Check out the insurance coverage or any advertising injury?
Calculate the litigation charge
Determine the legal fees, travel charges, etc. that would be spent in the whole process. Also, try to find out the litigation personality of infringer like the party believes in settling down or fighting?
Study deeply about the defendant
Don't restrict your search till Google. Find out the relevance of the product for the defendant. Also, learn about the prospective witnesses for the infringer. You must know that in case you win, would the defendant close down his company. Apart from all this, know about the defendant's attorney.
Assess your evidence
Collect all the documents and think of all the important documents that can be asked for by the defendant. The important papers are Product brochures, lab notebooks, advertisements, invention disclosures and prosecution history.
Preserve expert witnesses
Examine publications, credibility, previous work, etc.
Have a plan
Set a budget for the litigation lawsuit.
Hence, analyze these 10 important aspects before filling a lawsuit against an infringer.
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