Infringement Analysis: 19 Defenses to a Patent Infringement

Posted by Frederic Douglas | Jan 06, 2011 | 0 Comments

Infringement Analysis: 19 Defenses to a Patent Infringement Lawsuit

Copyright 2000-2010. Frederic M. Douglas. All Rights Reserved.

Determining whether a patent is infringed should entail the same process that a court would use. Generally, a court would make findings on validity, infringement, and enforceability. Below is a list of nineteen specific defenses to patent infringement claims:

(1) Expired Patent,

(2) Noninfringement under 35 USC § 271,

(3) Anticipation by prior art under 35 USC § 102 (a), (b), (d), (e), or (g),

(4) Obvious over prior art under 35 USC § 103,

(5) Double patenting,

(6) Improper inventorship under 35 USC § 102 (f),

(7) Improper scope of claims under 35 USC § 112,

(8) Fraud,

(9) Antitrust violation,

(10) Plaintiff does not own the patent,

(11) License to the patent,

(12) Abandonment under 35 USC § 102 (c),

(13) Misuse,

(14) Laches,

(15) Intervening Rights,

(16) Lack of utility under 35 USC § 101,

(17) Inoperable invention under 35 USC § 112,

(18) Not statutory subject matter under 35 USC § 101,

(19) Foreign filing after non-publication request.

I identified the above 19 defenses to patent infringement.

Do you know of any others?  Did I get any wrong?  Let me know

About the Author

Frederic Douglas

Frederic M. Douglas is an attorney practicing IP litigation. (949) 293-0442 @PhredDouglas In 1996, Mr. Douglas graduated from the University of California, Berkeley with a Bachelor of Science degree in chemical engineering. In 1999, he received his Juris Doctorate degree from the University of...

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