Patents are enforced by filing a civil action for patent infringement in a federal court located in a state where the court has personal jurisdiction over the defendant. The person or company that files a civil action is known as the "plaintiff." The person or company defending a civil action is known as the "defendant." At FOXPATENT, we have represented clients both as plaintiffs and defendants. We have filed civil actions for patent infringement on the basis that a competitor was selling a product that infringed our client's utility and/or design patent. Conversely, we have defended clients who have been served with a complaint alleging that its sale of a product infringes the utility and/or design patent rights of the patent holder. We have also filed declaratory judgment actions in federal court requesting the Court to determine whether or not our client's continued sale of a product would infringement the patent rights of another party. A decision to file a declaratory judgment action typically arises when a patentee sends a cease and desist letter to our client (or their customer) alleging patent infringement and threatening to file a civil action if our client does not stop selling the product and requiring other terms, such as damages, that are wholly unreasonable and not justified. At FOXPATENT, we have battled some of the largest law firms in the United States. When negotiations fail or appear unrealistic going on the offensive is often a good litigation strategy. A defendant is typically more inclined to discuss settlement after a complaint is filed in federal court rather than before a complaint is actually filed. Also, the state where a civil action is filed is often a critical part of the litigation strategy as case law on affirmative defenses such as latches can vary and hiring local counsel is an additional expense to the client forced to incur such expenses.
Patent litigation costs (attorney fees and expenses) vary widely depending upon a number factors, including the type of patent (utility or design); the strength of the patent; and the amount of potential actual damages. Unlike utility patents, design patents are typically less expensive to litigate than utility patents as utility patents commonly have many claims that must be reviewed and litigated while a design patent has a single claim. In cases of willful patent infringement, it may be possible to obtain an award of treble damages (3x actual damages) and attorney fees. Quite often, the filing of a complaint ends the matter quickly resulting in a settlement agreement between the parties. Typically, any settlement agreement requites the parties to maintain the terms and conditions of the settlement agreement in confidence and may only be disclosed by a court order. However, a battle over infringement (what is "covered" by the claims of patent) and/or the validity of the patent can be very expensive - in excess of one million dollars ($1,000,000) if a large law firm is employed. At FOXPATENT, we handle patent litigation at an effective hourly rate that is significantly lower than large law firms thereby providing our clients with an important advantage over their competitors. The amount of attorney fees and expenses associated with patent litigation are always a critical factor when deciding when and how much money a defendant is willing to pay to settle a case or how far a plaintiff is willing to take a case. At FOXPATENT, we also accept patent infringement cases on a contingency basis ranging from 33% to 50% of any money received from a judgment or settlement. In such cases, the client may not pay for any attorney fees or costs or only out-of-pocket costs such as court filing fees and deposition costs.