How to Enforce Patent Rights
Patent enforcement is a specialized and technical field of law, and in this area more than some others the famous words of Mark Twain are valid. If you seek to represent yourself, you have a "fool for a lawyer."
Nonetheless, if you have patent rights and see that they have been infringed, you will want to do more than simply call a lawyer and let her handle it. You, as client, will want to be a part of the enforcement process.
Your most important role will be to ensure that your lawyer has the detailed documentation that will assist her in bringing the case to a successful conclusion.
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Instructions
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Do Not Rely On U.S. Patent Office
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U.S. government grants the patents, but does not enforce them for you. Hire a lawyer. The U.S. Patent and Trademark Office plays no role in enforcement. Further, patent infringement is not a criminal offense, so neither state nor federal prosecutors will concern themselves with enforcement.
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Provide the lawyer with full documentation of the infringement. This may involve, for example, purchasing the potential defendant's product and taking it apart, analyzing the similarities between that product and the the claims in your own patent documents.
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Be prepared to settle if favorable terms can be obtained. Costs can be ruinously high if you take the attitude that "I'm fighting for the principle of the thing!"
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If you have no lawyer on call, and are not confident in selecting one, there is a relatively new type of business, the "patent enforcement firm" that serves as a go-between. The patent enforcement firm provides a range of enforcement-related services, including the retention of one or more law firms as necessary.
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Tips & Warnings
In some cases, the lawsuit backfires on the party that sought to enforce a patent right -- the court determines that the Patent Office was wrong to grant the award, and voids it.
One of the grounds on which a court can void a patent is known as "prior art" -- the discovery that the elements of the patent claim were already known and publicly available before the patent was granted.
File lawsuits only if you are prepared to meet such arguments.
References
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