Frederic M. Douglas On IP Litigation

© Frederic M. Douglas 2010.  All Rights Reserved.

Patent litigation is discovery-intensive.  However, the maximum number of interrogatories propounded is twenty-five unless you get court approval.  So ask efficiently.  Each case is different; there is no routine case.  In that direction, an accused infringer should consider the following topics for propounding interrogatories to a plaintiff patent owner.

(A) Which claims are being asserted?

       Most well-drafted patents contain several claims, each one potentially asserted by the patent owner.  The amount of discovery, expert analysis, and trial presentation is directly affected by the number of claims in dispute.

(B) Provide a claim chart

       Ask for an element-by-element analysis of the plaintiff's infringement contentions, proposed claim construction and the intrinsic and extrinsic evidence supporting the proposed claim construction.  With this information, you can identify which claim constructions you can agree to, which ones to fight, and which ones you may need…

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