Possible patent infringement

[divgradcurl]

Obviously the Plaintiff's patent has enough teeth to convince most of the original Defendants to settle, so would it be a proper assumption that the Plaintiff will not settle with the last Defendant prior to a Markman decision if it thinks it will gain a favorable decision?

I don't think you can say that for certain. No company wants to risk a courtroom battle if they can settle for a reasonable (to them) amount -- there is just too much uncertainty in the courtroom, and especially with a jury, for any infringement case to be a "slam-dunk." Very, very few companies will take a case to court instead of settling for favorable terms -- and usually then only when there is some large ego at the top that wants to punish or humilate some ego at the top of the other company.

My presumption is that the Plaintiff will have a much stronger position against potential other infringers with a positive Markman decision as compared to a scenario where it settled with all of the Defendants - is this correct thinking?

A patent that has been found valid in a court case is much stronger than one that is untested. But Markman alone is unlikely to prove anything significant, except for one judge's views on the construction of the claims. In fact, just going as far as Markman, and then settling, can actually weaken a patent in some cases, because if, in a later infringement action, a new defendant comes up with new and more damaging evidence to support their claims construction, the patent holder may be estopped from asserting a claim construction that is markedly different from the earlier case. That's just a possibility, and I don't think it is true in all cases, but it just points out that Markman isn't the be-all-end-all. It's important, but it's also important not to overstate it's importance. A plaintiff can win on Markman because they actually properly constured their claims -- but they can also win if they have a strongly pro-plaintiff judge, if the defendant provides poor support for their (perhaps otherwise correct) claim construction, or doesn't argue effectively in their Markman brief or hearing.

That's why the true test of a patent is really either in court, or even better, and the Court of Appeals for the Federal Circuit. Markman alone can give some indication as to the strength of a patent, but doesn't tell you everything.

 

[ckuratz]

Thanks once again.

I have another question. My presumption is that the disputing parties are obligated to keep the court well-informed about ongoing negotiations for settlement. Is this the usual protocol? If so, if the court is told that serious negotions are afoot, is this a mandate not to issue a Markman decision even when the court is prepared to do so?

 

[divgradcurl]

My presumption is that the disputing parties are obligated to keep the court well-informed about ongoing negotiations for settlement. Is this the usual protocol?

Typically, there are periodic case management conferences where the parties come to the courthouse and discuss the case with the judge or the magistrate that is handling the overall case -- which may or may not be the presiding judge. But yes, the court is typically kept abreast of negotiations between the parties.

If so, if the court is told that serious negotions are afoot, is this a mandate not to issue a Markman decision even when the court is prepared to do so?

The court can issue the Markman decision whenever they want. I suppose it is possible that a judge could withhold the decision based on settlement talks, but I am not aware of any case where this has actually happened. In fact, it should be quite the opposite -- usually it is seeing the Markman decision that gives the parties an indication of their likelihood of success in the courtroom, and helps drive the parties to settlement. It may be that one party or the other may feel that they would be hurt by Markmann, and may be trying to negotiate a better settlement now, but I am not aware of a judge withholding a Markman decision to spur settlement.

But there is certainly no "mandate." The judge in a case is the one who mandates things...

 

[entreprValerie]

Invention Financing

I am new and I am actually trying to create a thread but I don't know how to do it, I think I am just answering a post, I think...

In any case, I have a patent issued for a security device and I am just realizing the amount of work involved after the patent. I need funding, manufacturers, etc. before anyone will ever see it...

I am trying to find investors through usvisionaries.com, but I need manufacturers and other leads.

Can anyone give me some guidance. I thought that getting the patent was all I needed to do. Very nahive...

Valerie

 

[ckuratz]

In cases other than Markman, settlements end the court proceedings. Is Markman any different? That is, if the last of the Defendants settles in the particular case I have been following, then the litigants will never know how the judge would have ruled. Correct?

 

[divgradcurl]

n cases other than Markman, settlements end the court proceedings. Is Markman any different? That is, if the last of the Defendants settles in the particular case I have been following, then the litigants will never know how the judge would have ruled. Correct?

If the case settles before the Judge's decision on Markman comes out, then yeah, that's it. If one side or the other starts to get the jitters, and feels that the Markman decision will put them in a worse bargaining position, they might just settle the case before the decision is issued in order to bargain from a position of relative stregnth. Nothing strange about this at all.