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The High Cost of Settlement: Patentees May Be Prevented from Re-Litigating Claim Construction Issues Decided in Previously Settled Litigation

By Richard W. Erwine and Richard Martinelli

Patentees need to be aware that if they sue multiple entities at different times and in different courts for patent infringement, they may be “stuck” with the claim construction rendered by the first court in later litigations. As a result, patentees must carefully consider both the venue and order in which they face their opponents.

A patentee may believe that several different products, produced by different parties, are infringing his patent and, because of this, may wish to sue the entities responsible for those products at different times. Patentees will often sue one of the smaller entities first with the hope of building a war chest (either through settlement or judgment) for later, more expensive litigations.

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