An article in GE Magazine by specialists from patent lawyers Yetter Coleman LLP suggests ‘five ways to win patent litigation.’ The authors opine that patent litigation over oil and gas technology is ‘vibrant’ with a recent $106 million award to WesternGeco in its suit against ION and other ongoing suits over rig automation control systems.
If it is within your means, you might consider building your own patent portfolio to deter competitors from suing as Halliburton did after losing a $98 million hydrofrac suit to BJ Services in 2003. It is also a good idea to develop a procedure for archiving documents proving the timing of the launch. Doing this now can strengthen the defense in subsequent suits. In the digital era it may be hard to produce ‘clear and convincing’ evidence of your work—especially as document retention policies may be working against you.
Sometimes a vigorous defense may scare off a litigant if it looks as though the prospects of success are declining. In some cases an out-of-court challenge to a patent may put a case on hold pending a decision from the Patent Office. But watch out when the patent emerges from re-examination intact giving your adversary ammo to use against you. Communication is key in patent litigation.
The authors observe that jury trials bring ‘frequent, sometimes staggering verdicts’ in patent suits. Paradoxically, although the burden is on the plaintiff to prove its case, often the odds may seem stacked against the defendant. ‘Feeling overwhelmed and gun-shy is exactly the wrong response.’ More from Yetter Coleman.
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