Regardless of whether you think one of your patents has been infringed upon or you’ve been accused of infringing on a patent, it’s important that you know some of the common defenses that come up in patent litigation. If you don’t educate yourself, then you leave yourself susceptible to an unfavorable outcome that can cost you a lot of revenue.
Novelty and obviousness defenses
Arguments pertaining to novelty and obviousness are amongst those common defenses. When it comes to obviousness, a defendant essentially argues that any modifications to an item that was patented was a logical next step and was therefore obvious. Given the obviousness of it, the defense argues that the underlying work is non-patentable and therefore has not been infringed upon.
When assessing obviousness, a court will consider the work at issue from the perspective of someone with ordinary skill in the art in question to determine if he or she would consider the patented work an obvious next step. A court will also consider the nature and the scope of the work and consider whether it constitutes true innovation.
Preparing to address obviousness in your case
If you’re headed for patent litigation, then you need to have evidence to support your position. This probably means that you’re going to need experts in your field who can help you speak to the obviousness issue, and you’ll want to depose the other side’s witnesses to get a better sense of the arguments that will be put forward should your case go to trial. As you know, this is a very nuanced area of the law, which is why you need an advocate on your side who is experienced and knowledgeable, as well as someone who has a track record of success. Therefore, before settling on representation in your case, we encourage for fully research your options.