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Don't Overlook Nontraditional Defenses in Patent Litigations

By Jonathan S. Caplan and Mark A. Baghdassarian

It is a staple in virtually every patent case for defendants to assert defenses of non-infringement, invalidity, and inequitable conduct. While patent litigators appropriately focus on these traditional defenses, there are also nontraditional defenses ' including lack of ownership of the patent-in-suit, judicial estoppel, and unclean hands ' that may be incredibly beneficial to patent defendants. Each of these defenses can quickly, and sometimes more efficiently, end a bitterly contested patent action, either through summary judgment, settlement or, in a best case scenario, voluntary dismissal by the plaintiff-patentee.

So when does it make it sense to devote precious resources (including, of course, the client's money) to these less traditional defenses? Well, more often than you might think. These defenses, along with the factual indicators that often give rise to them, are discussed below.

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