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So your probably staring at a patent infringement lawsuit claiming millions in damages right now, or maybe your getting cease and desist letters from patent trolls threatening to destroy your business, or worse – your facing WILLFUL infringement claims that could triple the damages to tens of millions. Maybe a competitor is claiming your flagship product infringes there patents. Maybe a non-practicing entity bought some vague patent just to sue you. Or maybe your ex-employee filed patents on work they did for you and now there suing YOU for infringement. Look, we get it. Your ABSOLUTELY PANICKING. And you should be! Because patent litigation costs average $2.8 MILLION just to get through trial according to American Intellectual Property Law Association data!
Let’s talk real numbers that’ll make your stomach drop. For cases with $1-25 million at stake, your looking at $2.3 million average litigation costs through trial. Got more than $25 million at risk? Now your spending over $4 MILLION in legal fees alone. And that’s if things go smoothly! Complex cases with multiple patents can easily hit $6-8 million.
Discovery alone costs $1-2 million in patent cases. Document review, source code examination, technical depositions, expert discovery – it’s insanely expensive. Claim construction (Markman hearing) runs $500,000 to $1 million. Trial preparation and the actual trial? Another $1-2 million minimum. These aren’t inflated numbers – this is reality in patent litigation.
The timeline makes it worse. Patent cases take 2-3 years to reach trial in the Southern District of New York or Eastern District. That’s three years of mounting legal bills, three years of business uncertainty, three years of your competitors using this against you in the market. Every month costs tens of thousands in legal fees even during slow periods.
And here’s the killer – even if you WIN, you rarely recover attorneys’ fees. The American Rule means each side pays there own way unless you can prove the case was “exceptional” – basically frivolous or brought in bad faith. That’s a really high bar. So even total victory might still cost you millions. Patent litigation is financial warfare where nobody really wins except the lawyers.
Willful infringement is the nuclear bomb of patent litigation. If they prove you KNEW about the patent and infringed anyway, the court can triple the damages under 35 U.S.C. § 284. That $10 million verdict becomes $30 million overnight. We’ve seen companies literally destroyed by treble damage awards.
The standard used to be really strict after the Seagate case, but the Supreme Court’s 2016 Halo decision changed everything. Now judges have broad discretion to award enhanced damages for “egregious” conduct. What’s egregious? Copying a competitor’s product after seeing there patent. Continuing to infringe after getting a cease and desist letter. Bad faith litigation tactics. The standards are subjective and terrifying.
Getting an opinion of counsel used to protect you, but that’s not automatic anymore. The opinion has to be competent, obtained before infringement started, and actually relied upon. A rushed opinion letter written after you got sued? Worthless. An opinion that ignores key prior art or claim constructions? Could make things worse.
The really scary part is that willfulness can be found even without direct evidence you knew about the specific patent. “Willful blindness” – deliberately avoiding learning about patents in your field – can count as willfulness. Some companies have “no patent search” policies thinking ignorance protects them. It doesn’t! Courts see right through that strategy.
Patent trolls (NPEs – Non-Practicing Entities) are parasites that exist solely to extort settlements from real businesses. They don’t make products, don’t innovate, just buy vague patents and sue everyone. And yes, they can absolutely destroy your business if you don’t handle them correctly.
The Eastern District of Texas used to be troll paradise – plaintiff-friendly judges, quick trials, devastating verdicts. The Supreme Court’s TC Heartland decision in 2017 reduced venue shopping, but trolls adapted. Now they’re filing in Delaware, Western District of Texas, and yes, even in NYC federal courts. There everywher
The troll business model is pure extortion. They know it costs you $2-3 million to defend, so they offer to settle for $500,000. Pay us or spend 5x more defending yourself. It’s legalized robbery. And they file against multiple defendants, spreading there costs while maximizing pressure. We’ve seen single patents generate dozens of lawsuits.
Fighting trolls requires special tactics. Early invalidity challenges through PTAB Inter Partes Review. Aggressive fee-shifting motions. Joint defense groups to share costs. Sometimes the only winning move is to fight hard early and make yourself too expensive to sue. Trolls want easy money, not real fights.
Non-infringement is the most straightforward defense – your product simply doesn’t meet every element of the asserted claims. But this requires detailed claim construction arguments and expert testimony. One missing element and you win, but patent claims are written broadly on purpose. Prosecutors argue for narrow construction, defendants for broad. Claim construction alone can cost $500,000+.
Invalidity is powerful but requires “clear and convincing evidence” – a high burden. Prior art that anticipates every element, or obvious combinations of references. But finding that killer prior art is expensive. Prior art searches, expert opinions, depositions of inventors. And patents are presumed valid, so your fighting uphill.
The best defense? Don’t infringe in the first place. Design around patents proactively. Get freedom-to-operate opinions before launching products. But once your sued, you need every defense available because patent cases are won by overwhelming the other side with arguments until something sticks.
This is the million-dollar question – literally. Patent cases settle 95-97% of the time because trial is Russian roulette with your company’s future. Even strong defenses can lose to hometown juries or technical misunderstandings. One bad claim construction ruling can flip a winning case to a loser.
Early settlement before discovery explodes is often smartest financially. If they want $500,000 pre-filing, that might become $2 million after claim construction, or $5 million on the courthouse steps. Every milestone that validates there case increases settlement value. Time is NOT your friend in patent litigation.
But some cases you MUST fight. When settling opens floodgates to more suits. When the patent is clearly invalid and killing it protects your entire industry. When the damages model is so inflated that settlement demands exceed fighting costs. When your facing a serial litigant who’ll come back for more if you show weakness.
The decision depends on case merits, financial resources, business impact, and precedent risk. Can you afford 3 years of litigation? Will customers flee during uncertainty? Does your insurance cover defense costs? Are there other defendants to share costs? Sometimes principle matters less than survival.
IPR at the Patent Trial and Appeal Board is a game-changer for patent defense. It’s faster (12-18 months), cheaper ($300-500K), and more defendant-friendly than district court. About 65% of instituted IPRs result in some or all claims being invalidated. Those are WAY better odds than jury trials.
The key is timing. You have one year from service to file IPR, but strategic timing matters. File too early and you might miss prior art discovered in litigation. File too late and the district court won’t stay the case. Most defendants file IPR within 3-4 months to maximize stay chances.
District courts stay litigation pending IPR about 60-70% of the time. A stay freezes litigation costs for 12-18 months while PTAB decides validity. Even if IPR doesn’t completely kill the patent, it narrows claims and creates estoppel against arguments the patent owner could have raised. It’s incredibly valuable even when not completely successful.
But IPR isn’t perfect. You’re limited to printed publication prior art – no on-sale bar or public use. Claim construction standards are different. Some judges refuse stays, especially in competitor cases. And if you lose IPR, your stuck with estoppel that might hurt district court defenses. It requires careful strategic planning.
Patent trolls are bad enough, but real competitors pile on everything – patent infringement, trademark violations, trade secret theft, unfair competition, false advertising. The kitchen sink approach multiplies defense costs and complexity. Each claim has different elements, defenses, and discovery requirements.
Trade secret claims are particularly dangerous because there’s no registration requirement – they can claim anything was a “secret.” Customer lists, pricing strategies, manufacturing processes, software algorithms. And unlike patents that expire, trade secrets last forever if properly maintained. Defense requires proving independent development or that it wasn’t really secret.
Trademark claims add injunction risks that can destroy product launches. Preliminary injunctions can issue within months, freezing sales while litigation continues. Rebranding costs fortunes and confuses customers. Even weak trademark claims create market uncertainty that competitors exploit mercilessly.
The overlap between IP claims creates discovery nightmares. Patent discovery focuses on technical documents. Trade secret discovery digs into employment history and competitive intelligence. Trademark discovery examines marketing and customer confusion. Your spending millions defending multiple fronts simultaneously. It’s exhausting and extraordinarily expensive.
Patent litigation is NOT regular commercial litigation. The Federal Circuit has its own precedents different from regional circuits. Claim construction is a specialized art requiring deep technical knowledge and legal expertise. Patent prosecutors might be great at getting patents but terrible at litigation. You need trial lawyers who understand technology and can explain it to juries.
NYC patent litigators know the Southern and Eastern District judges intimately. Judge Kaplan runs tight ships with aggressive schedules. Judge Chen is highly technical and reads everything. Judge Donnelly focuses on early case management. Knowing judicial preferences saves millions in wasted motion practice.
Technical expertise matters enormously. Many patent litigators have engineering or science degrees – electrical engineering, computer science, chemistry, biotech. They speak the language of patents and technology. They can cross-examine experts effectively. They understand prior art and validity arguments. Business lawyers pretending to do patent work get destroyed.
Speed and aggression win patent cases. While they’re building infringement theories, we’re invalidating patents at PTAB. While they’re taking depositions, we’re designing around there claims. While they’re calculating damages, we’re finding prior art that destroys everything. Patent litigation rewards proactive defense, not reactive scrambling.
Losing a patent trial is devastating but not necessarily fatal. Post-trial motions can overturn verdicts – judgment as matter of law, new trial motions, remittitur to reduce damages. About 20-30% of patent verdicts get modified or overturned post-trial. Those motions buy time for settlement while threatening appeal.
The Federal Circuit Court of Appeals is your next stop. They reverse or vacate about 30% of patent cases, much higher than other circuits. But appeals take 12-18 months and cost another $500,000+. Meanwhile, the plaintiff might be seeking injunctions or collecting on supersedeas bonds. Appeals are expensive Hail Marys.
Injunctions are the real business killers. If your found to infringe valid patents, courts can order you to stop selling products immediately. Permanent injunctions used to be automatic but the eBay decision made them discretionary. Still, competitors usually get injunctions. That means redesigning products, losing market share, explaining to customers why you can’t deliver.
Damages keep accumulating during appeals. Pre-judgment interest, post-judgment interest at treasury rates, ongoing royalties for continued infringement. A $10 million verdict becomes $15 million by appeal. If you lose the appeal, your paying everything plus two more years of attorneys’ fees. It compounds into astronomical numbers.
Prevention is infinitely cheaper than defense. Freedom-to-operate (FTO) analyses before product launches identify patent risks early. It costs $25,000-$50,000 for comprehensive FTO compared to $3 million for litigation. Design around problematic patents during development, not after getting sued.
Build defensive patent portfolios. Your own patents create counter-assertion opportunities that complicate plaintiff strategies. Cross-licensing negotiations replace litigation. Patent peace treaties with competitors avoid mutually assured destruction. Even weak patents have settlement value in portfolio cross-fires.
Watch for warning signs. New patents issued to competitors. Patent purchases by NPEs in your space. Cease and desist letters to industry peers. Patent litigation is rarely surprise attacks – there are usually months or years of warning signals if your paying attention.
Insurance is critical but complicated. General liability excludes patent infringement. Specialized IP insurance is expensive with high deductibles and coverage limitations. But it provides defense costs and settlement authority that might save your company. The premium pain is nothing compared to uninsured patent litigation costs.
Look, we’ve defended NYC companies against every type of patent assault – trolls, competitors, ex-employees, foreign entities. We know the SDNY and EDNY judges, know the Federal Circuit precedents, know the PTAB procedures. We’ve invalidated patents worth hundreds of millions, designed around claims to avoid injunctions, turned losing cases into favorable settlements.
Our technical team includes former USPTO examiners, engineers with advanced degrees, programmers who understand software patents, scientists who speak biotech. We don’t just argue law – we understand technology at the deepest levels. When experts testify about claim limitations, we know when there lying.
We coordinate comprehensive defense strategies. IPR proceedings to invalidate at PTAB while fighting invalidity in district court. Ex parte reexaminations for prior art not suitable for IPR. Design-around projects to moot infringement. Counter-assertions from defensive portfolios. Every angle of attack, simultaneously.
Most importantly, we understand business reality. Patent litigation can’t consume your entire existence. We handle the legal warfare while you run your company. Regular updates in plain English, not patent gibberish. Realistic assessments of risks and costs. Exit strategies when fighting stops making sense. Because winning means your business survives, not just prevailing in court.
Call us RIGHT NOW at 212-300-5196
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Don’t let patent litigation destroy your business! Every day you wait, they’re building their infringement case against you. Evidence is being created, damages are accumulating, litigation costs are mounting. The sooner we start defending, the more options we have – IPR deadlines, venue challenges, early settlements. Call immediately and let’s protect your innovations before it’s too late!
This is attorney advertising. Prior results do not guarantee similar outcomes. Patent litigation outcomes depend on specific facts, claims, prior art, and judicial assignments. Past victories don’t ensure future success.
Very diligent, organized associates; got my case dismissed. Hard working attorneys who can put up with your anxiousness. I was accused of robbing a gemstone dealer. Definitely A law group that lays out all possible options and best alternative routes. Recommended for sure.
- ROBIN, GUN CHARGES ROBIN
NJ CRIMINAL DEFENSE ATTORNEYS