Patent Litigation 101

As I hope I have been clear about in these pages, my practice is entirely about patent prosecution, the pursuit of patents in patent offices, both domestic and international. As such I do not claim to be an expert in patent litigation, and do not intend to become one. Having said that, I recognize that some of my clients, especially those who have never had the joy of being part of an infringement trial, are still curious and would like to better understand how things work in court.

I could attempt to explain patent litigation because unfortunately I have been part of several patent infringements, both in the U.S. and Europe. My role was not to participate in court but to help the attorneys on one side or the other prepare their arguments for the judge and jury. So I learned some things but my explanations would not be considered definitive.

So I have been casting around for some practical explanations of the issues in patent litigation that I could share. I think I finally found something useful.

Recently (2007-2009) Chief Judge Paul R. Michel of the United States Court of Appeals for the Federal Circuit created the National Jury Instruction Project. The Chief Judge recognized that there has always been a problem in patent litigation in that the average jurors on patent cases are simply not familiar with the intricacies of patent law and that educating them is a burden for the federal judges that handle patent cases. 

As a result of that work there is now a formal set of instructions that are available to judges to use to educate jurors about patent law as it pertains to infringement. These instructions are now available to federal judges to use as they see fit. I doubt seriously that they are used slavishly but can be tailored to the case in hand. But as I read them they do a good job of something I wanted to do on, which is to give a good overview of the issues in patent litigation.

So be aware - I am using the guidelines as they were presented. If you are simply not interested in understanding patent litigation, you can simply skip this part of the website. But if you are interested I think you will find them to be well written and a good explanation in real English of patent law as practiced in U.S. courts. If you want to know how all of this works in other countries, sorry about that, but that is beyond the scope of what I am trying to do. 

Be prepared - this is a lot of material,  but you can pick and choose the sections you are most interested in. I have broken all of the jury instructions into a series of articles that are linked at the bottom of this page.


Preliminary Instructions

What is this about?

Final Instructions

What are the parties contending?


The various modes of infringement.

Willful Infringement

This is important to damages claims.


A key defense in patent infringement.


How do you decide on damages?


Patent Infringement 101

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Mike Ervin

Mike Ervin - Cost Effective Small Business Patent Protection.

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