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Patent Litigation

Patent litigation differs from ordinary commercial litigation, which is why many of our attorneys focus almost exclusively on this practice. From due diligence investigations through post-trial motions and appeals, we will ably handle your case at every stage, assessing the patents and prior art, taking and defending complicated technical depositions, and winning key claim construction issues, all while building a record for summary judgment or to successfully try the case. Our lawyers appear on both sides of the “v.,” representing plaintiffs and defendants.

Fitch Even’s patent litigation practice extends beyond the district courts. The firm has an active practice in the USPTO’s Patent Trial and Appeal Board, where we have successfully challenged and defended patents through numerous inter partes reviews and covered business methods proceedings. For more information on our PTAB Trial practice, click here.

Enforcement of Patent Rights

Fitch Even’s litigation teams have been entrusted to litigate and try complex intellectual property cases against tough opponents represented by top firms across the country, and our clients have obtained favorable verdicts, injunctions (preliminary and permanent), and bench decisions in a high percentage of these cases. We are experienced in many of the most active federal courts for patent cases. We know how to present complex technology, fact patterns, and legal doctrines in the courtroom through effective preparation and use of witnesses, demonstrations, computer animation, and other courtroom technologies.

A particularly active segment of Fitch Even’s litigation practice involves developing and executing broad patent enforcement and licensing initiatives in response to industry-wide patent infringements. We handle these matters under both traditional and contingent fee arrangements, often on behalf of small and midsized companies whose IP rights are being impacted by much larger industry participants. Our attorneys have successfully tried numerous patent infringement trials on behalf of patent owners against large, well-funded defendants represented by top firms.

We have particular experience executing multifaceted strategies using litigation in conjunction with reissue and continuation patent proceedings in the USPTO. We use these procedures to strengthen claims against prior art and to pursue later-developed infringing products. By asserting strong, targeted claims, we advance our clients’ ongoing patent enforcement and licensing efforts. This experience includes successfully handling numerous IPR proceedings challenging patent validity in the PTAB after litigation is initiated.

Defense of Adverse Claims

We are also frequently called upon to defend claims of patent infringement on behalf of corporate clients of all sizes. We have successfully defended cases with large damages exposures through jury verdict and appeal and are also adept at defeating adverse claims through effective use of tools such as Markman claim construction proceedings and summary judgment.

Our litigation teams often leverage reexamination and use inter partes review proceedings as a component of a comprehensive defense strategy. We have successfully used these procedures to stay district court litigations pending USPTO review, to reduce the number of patents and claims asserted against our clients, or to significantly narrow the asserted claims, and as a component of design-around risk reduction strategies. By pursuing winning arguments at the USPTO, we have obtained successful results for our clients in the related district court proceedings.

Case Studies

Protecting Market Share Through Patent Enforcement

Client:  United States Gypsum Corp.

Problem: USG, the nation’s leading wallboard manufacturer, owned several patents covering foundational technology for the formulation and manufacture of gypsum-containing products, such as wallboard. The patented technology used one or more chemical compounds to enhance certain properties of the gypsum products, including sag resistance, strength, and lighter weight. However, there was no conclusive test available to confirm whether any given competitor was using the patented technology.

Solution: Fitch Even was retained to conduct due diligence alongside the client, and then to bring a case against USG’s largest competitor, National Gypsum, for infringement of the key patents. Our team maneuvered the case through discovery, winning a key dispute regarding the burden to identify potentially infringing products and using fact discovery and expert testimony to develop a very strong case for infringement, validity of the patents, and a very large damage award.

Result: After successful claim construction, completion of discovery, and exchange of competing expert reports, the case settled shortly before expensive final trial preparation.

Reexamining and Redesigning En Route To Obtaining A Noninfringement Verdict

Client:  Leading Producer of Pasteurized Liquid Eggs

Problem: Our client was engaged in protracted litigation with a competitor over patents directed to ultra-high temperature pasteurization of liquid eggs. Although strong grounds existed for defending the client’s product and manufacturing process, the inherent uncertainty of litigation created risk to an expanding business.

Solution: Fitch Even worked closely with the client’s in-house team of legal, business, and technical representatives to execute a multifaceted strategy for defeating the legal threat with minimal risk to the business. A cross-functional team of litigators and attorneys experienced in post-grant proceedings challenged the four patents both in the lawsuit and in reexamination proceedings pursued in the U.S. Patent and Trademark Office (USPTO). Armed with insights about the scope of patent protection that might ultimately arise from the USPTO proceedings, we also counseled the client’s technical team regarding options for modifying the original process to further reduce the threat of infringement.

Result: The scope of the patents was narrowed by the USPTO. The client implemented the new process when the reexamined patents issued, with no loss in product quality or customer satisfaction. Fitch Even then defended the new process in a six-week jury trial, obtaining a verdict of non-infringement, which was affirmed by the Federal Circuit. An integrated strategy involving a range of legal and procedural options was successfully executed to resolve a complex IP dispute and eliminate a threat to the client’s pasteurized refrigerated liquid egg business

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