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Defending a Patent Infringement Case by Finding Unusual Prior Art

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Defending a Patent Infringement Case by Finding Unusual Prior Art Defending a Patent Infringement Case by Finding Unusual Prior Art By anDrew M. soloMon, roBert w. stevenson anD David B. gornIsh anyone defending a patent infringement lawsuit knows that such a suit can divert time, energy and money from the business of the accused. worse potential consequences include an unfavorable judgment (e.g., a court injunction against further infringement, significant compensatory damages, enhanced damages for willful infringement, etc.), and/or a costly “design around.” however, with a bit of resourcefulness, a defendant may succeed in obtaining an early dismissal or favorable settlement of such lawsuits. a patent infringement defendant’s case often stands or falls based on the quality of “prior art” that the defendant relies on to establish patent invalidity. ACC Docket 63 October 2011 to be patentable, an invention must be, viously used. In some cases, it can be Andrew M. Solomon among other things, different from and is a vice president and difficult to find prior art the PtO has not nonobvious over the prior art. For purposes assistant general already considered. counsel at the Perrigo here, prior art generally includes technology Company, a generic While searching the same sources as the that predates the filing date of the patent(s)- health care company, where his PtO is certainly appropriate, a defendant’s practice includes management of in-suit, such as other patents, published intellectual property and commercial search efforts ought not to end there. but law issues. He has practiced as articles, product catalogues, and public in-house and outside counsel for 26 they all too often do, even if only less-than- uses or sales of products similar or identi- years and is a registered patent ideal prior art is located. this can be a mas- 1 attorney. He can be contacted at cal to the patented invention. A patent [email protected]. sive strategic error. A defendant should not owner cannot defend against an assertion settle with building its case on mediocre Robert W. of unpatentability over certain prior art by Stevenson is a prior art based only on search methods and claiming a lack of knowledge of it. partner at Caesar Rivise, sources that may differ little, if at all, from Philadelphia and has If an invention had been identically more than 29 years of what the PtO used. Since the territory for disclosed in a prior patent, for example, the patent litigation experience in a potential prior art is vast, there are roads variety of technical areas. He also has invention would be unpatentable since it is US patent prosecution experience with not traveled by the PtO, which a defendant not new. If an invention is not identically hundreds of patents and many should try to find — and later explore — re-examinations during those years of disclosed in the prior art, the invention still his practice. He can be contacted at before determining that it has reasonably may be obvious. For example, if a prior art [email protected]. exhausted its search efforts. publication discloses something similar, but David B. Gornish is a to find key prior art outside of the PtO- partner at Caesar Rivise, not identical to, an invention, the invention Philadelphia and search paradigm, we suggest that a defen- would not be patentable if the differences divides his practice dant try and understand the business of the primarily between patent between the invention and the disclosure in litigation and patent prosecution. He patent owner as of the patent filing date the publication were technically obvious. has experience handling matters in and consider at least the following: diverse technologies including, most A patent that is later determined not to significantly, pharmaceuticals, • What was the size of the market at have met the criteria for patentability (i.e., it mechanical inventions and business the time? methods. He can be contacted at should not have issued in the first place) is [email protected]. • Who were the market players at the time? an invalid patent. An invalid patent cannot • What problem(s) did the inventors face, be infringed. Defendants thus commonly and what other entities were motivated assert patent invalidity as a defense in patent infringement to solve the problem(s) in the same or lawsuits. the most common invalidity defenses are based similar way previously? on prior art. Accordingly, it is imperative that a patent in- • Did the inventor(s) and/or plaintiff make any public fringement defendant find and appreciate the most relevant statements (e.g., in marketing materials, Sec filings, prior art. Failure to do so may cause the defendant to lose clinical study reports and/or FDA filings to the PtO) a case that could have been won if only the defendant had that can be used as admissions or at least lead to known about the most relevant prior art. important evidence of invalidity? Finding prior art sufficient to upset a patent’s validity • Keep an open mind to the fact that previously can be daunting under the best of circumstances. One rea- someone may have invented or sold the same thing son is that during the patent procurement process (known without patenting or publishing it. as “patent prosecution”), the United States Patent and trademark Office (PtO) searches available prior patents the bottom line is that in searching for prior art and and literature to determine patentability. In this and other building a case of invalidity, resourcefulness can be re- ways, the PtO plays a gatekeeping role — supposedly en- warded. resourcefulness does not lend itself to a simple suring that patents are granted only for truly patentable in- definition or even a set of specific principles. We can best ventions. because the PtO is presumed to have done iheats illustrate it by examples. the following examples describe job properly, an issued patent is presumed valid and can some of the authors’ own experiences in establishing patent be held invalid in court only upon a “clear and convincing” invalidity over prior art that the PtO or a standard search showing to the contrary (a high evidentiary burden). did not, and probably could not, find. At the beginning of a patent infringement lawsuit (if not earlier), most defendants conduct their own prior The case for the private investigator art searches. However, in many cases, the search tools A client was selling a cover designed to keep water from available to and used by defendants to locate prior art outdoor electrical outlets. A competitor sued for patent in- are the same as, or similar to, the tools the PtO pre- fringement. We did the usual PtO-type searching for prior ACC Docket 64 October 2011 art (i.e., prior patents and journal literature) and found some that was not bad — enough to possibly establish invalidity. However, as many patent litigators know, “not bad” prior art Ultimately, this published prior is often not good enough to succeed at trial, much less ob- art — evidence that could not tain a dismissal or convince the plaintiff to drop the lawsuit. After our initial search efforts, we thought about which have been found in a typical non-US markets would have had a need for the patented outlet cover and where one might actually have been sold. prior art search — caused We had in mind technologically advanced countries that were safety conscious and rainy, and ultimately focused the plaintiff to drop its lawsuit our attention on the United Kingdom and Japan. We hired private investigators in the United Kingdom and Japan to and abandon its patent. contact electrical supply companies. We wanted to know whether the companies had ever sold such covers, and if so, whether the companies published catalogs prior to the patent’s filing date. that approach yielded a plethora of sis technician in Seattle, obtained actual product in dated non-patent, published prior art catalogs for us that were sterilized packages showing that it had been on sale. directly on point. Ultimately, this published prior art — In addition, it turned out that a technician had designed evidence that could not have been found in a typical prior an earlier version of the double seal connector and had art search — caused the plaintiff to drop its lawsuit and presented his design at a conference in Seattle prior to abandon its patent. the investigators we used actually cost the patent’s filing date. He provided us with copies of his considerably less than typical patent searches for prior art. presentation and the conference agenda listing his presen- tation. Separately, we obtained documents showing that Secrets in Seattle the plaintiff’s inventors attended that same conference. All A client — a large multinational company — was selling told, three fact witnesses agreed to testify (at a trial that dialysate (a solution used in dialysis), which was admin- never ultimately took place). thus, without any formal istered to patients through an implanted catheter in the discovery (e.g., subpoenas or depositions), we found not patients’ abdomens from disposable plastic bags. the bags only terrific prior art, but evidence that the patent owner’s were connectable to the catheters with a double seal con- “inventors” may have obtained the double seal connector nector of a specific design that our client’s competitor had idea elsewhere! We informed the plaintiff of our findings, patented. the client attempted a “design around” but was the lawsuit settled, and our client remained on the market. nonetheless sued for infringement. As in the first example above, the client had performed What’s up, Doc? the usual PtO-type search, locating prior art that kept us A client was sued on a therapeutic method patent.
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