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Reexamination As An Alternative To Litigation

By James Hanft

One of the main concerns of many companies is the ever-increasing cost of patent enforcement. The probative costs of patent litigation can have a chilling effect on innovative businesses and can result in forced settlements, ie, entering settlement rather than incurring attorneys' fees, costs and lost employee time. So the question is: if your company faces the prospect of defending a patent infringement action, is there an alternative to the expensive and time consuming process of litigating a patent in federal court?

Congress attempted to answer this question back in 1980 by enabling reexamination of a patent by the U.S. Patent and Trademark Office, and making relatively recent changes to the reexamination process to increase its effectiveness. However, despite Congress's attempts to create an effective alternative to litigating questionable patents, the prevailing view is that, in most instances, reexamination does not replace litigation. This is because reexamination, even under the relatively new inter partes procedure, has a different purpose than that of litigation.

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