July 1, 2021
Natural Products Consulting
By Jeffrey D. Smyth; Amana Abdulwakeel; Jordan Fraboni
Patents are becoming increasingly important in the food and beverage industry, but a patent can be essentially worthless if not properly enforced. A patent owner has the right to exclude others from making, using, selling, offering to sell, or importing into the United States a product or process that is covered by a valid, enforceable U.S. patent. As discussed elsewhere in this book, patents can cover food products and compositions (such as non-natural foods and drinks, supplements, dietary substitutes, etc.), food preparation and kitchen devices, food preservation or alteration methods, methods and processes to make food products, food-based software, etc. As a result of the rapidly changing landscape of the food and beverage industry, and the constant need to maintain an edge over competitors, patent enforcement can be extremely important. This chapter outlines some basic aspects of patent litigation and enforcement.
The first half of this chapter provides an overview of patent infringement, defenses, and available remedies. It covers the various pre-litigation considerations that should answer the who, what, when, where, why, and how a company would commence with a patent infringement lawsuit. The second half of this chapter gives an overview of the patent litigation process from the time a complaint is filed in district court through appeal.
Generally speaking, patent litigation concerns whether a claim in a valid and enforceable patent has been infringed. Patent holders enforce their rights by suing a defendant (or defendants) for patent infringement. Those who have been sued for patent infringement (called “accused infringers”) primarily attempt to prove that they do not infringe the patents and/or that the patent claims that have been asserted against them are invalid or unenforceable.
The patent laws are generally established by Congress through the Patent Act, 35 U.S.C. § 1, et seq. Patent infringement is defined in 35 U.S.C. § 271 as making, using, offering to sell, or selling any patented invention within the United States, or importing into the United States any patented invention, without authorization from the patent holder. To prove infringement, a patent holder must prove (1) that it has standing to sue (i.e., owns or has all substantial rights in the asserted patent(s)), and (2) that the accused infringer has infringed each and every element of the at least one asserted patent claim. Although patent infringement cases often involve multiple patents and patent claims, to be successful, the patent holder only needs to prove that one claim from one patent has been infringed. In certain limited situations, an accused infringer may not meet every element of the asserted claims literally, but can nevertheless be found to infringe the patent claim under the doctrine of equivalents,[1] where the difference between the feature in the accused device and the limitation literally recited in the patent claim is found to be “insubstantial,” often proved by showing the accused device performs substantially the same function, substantially the same way, achieving substantially the same result.
There are two types of infringement that a patent holder may pursue under the statute: direct infringement and indirect infringement. Direct infringement is liability that attaches to the person or entity who is making, using, offering to sell, selling, or importation of any patented invention within the United States.[2] Direct infringement does not require the accused infringer to have knowledge of the asserted patent or specific intent to infringe—proving the act of infringement itself is enough for liability. However, a patent holder may be entitled to additional relief or damages (up to three times the amount) if it is able to prove the accused infringer had knowledge of the asserted patent and/or that the patent infringement was “willful.”
Indirect infringement can apply when an accused infringer does not actually commit the act of direct infringement itself, but causes another party to infringe the patent, and is therefore liable as an indirect infringer. There are two types of indirect infringement: (1) induced infringement, where a party instructs or causes another party to infringe a patent,[3] and (2) contributory infringement, where a party sells, offers to sell, or imports into the United States a component of a patented product or a material or apparatus to be used in performing a patented process. Unlike direct infringement, liability for indirect infringement requires some proof of knowledge of the asserted patents and of the infringing conduct.
An accused infringer has several defenses they can raise. Accused infringers commonly raise a defense of non-infringement, which is essentially arguing that the patent holder has not met their burden to prove that an act of infringement has occurred. There are also several defenses that can be raised based on the validity of the asserted patent, because there can be no infringement if the patent is not valid. Issued patents are presumed valid by statute,[4] but an accused infringer may establish that the patent is invalid if they meet their burden to prove so. Patent validity defenses may include proving that the patent is not directed to patentable subject matter (as required by 35 U.S.C. § 101), that it is not directed to novel or non-obvious subject matter in view of prior art (as required by 35 U.S.C. §§ 102 or 103), or that the inventor failed to provide a full description of the invention that establishes that the inventor was actually in possession of the claimed invention and that enables the public to practice the invention (as required by 35 U.S.C. § 112). In some less common instances, an accused infringer may also be able to argue that the patent is unenforceable due to “inequitable conduct” if the inventor withheld material information from the patent office when obtaining the patent. In addition to the above validity defenses, an accused infringer may have certain equitable defenses it can raise depending on the patent holder’s conduct is raising their infringement claims, including equitable estoppel[5] and/or waiver.[6]
A patent holder that prevails on its claims of infringement (and prevails with regard to any asserted defenses) is entitled to damages adequate to compensate for the infringement. Such damages may include lost profits (the amount of profit that would have been made but for the infringing conduct), but is in no event less than a reasonable royalty for the use of the invention by the infringer (typically the amount in royalties that would have been agreed to if the patent holder and accused infringer entered into a hypothetical negotiation on the eve of infringement).[7] Damages can be recovered for the period beginning up to six years before the date the patent infringement complaint is filed, as long as the patent holder has complied with any obligation to mark patented products with the number of the asserted patent (if any).[8] Since damages are tied to the patented product or process, it is typically necessary to employ a damages expert to assess the appropriate compensatory damages and/or determine a reasonable royalty under the circumstances (based on factors such as the value of the patents, the composition of the market, licensing practices, standard practices of the industry, etc.). Further, the court can enhance damages by up to three times the amount upon a finding of willful infringement.[9] If a court deems a case exceptional, the successful patent holder can also obtain costs and attorneys’ fees.[10]
A patent holder may also seek injunctive relief, where a court can prevent an accused infringer from engaging in further acts of infringement. An injunction is a very powerful tool as it may require an infringer to halt sales or production of the accused products. There are generally two types of injunctions potentially available in a patent infringement lawsuit: (1) a preliminary injunction, which typically occurs early in the case to maintain the status quo while the case is pending, and (2) a permanent injunction, which prevents the accused infringer from continuing to infringe the patent for the remainder of the patent’s term after the case is concluded and judgement has been entered.
Preliminary injunctions are generally considered to be an extraordinary remedy and obtaining one requires meeting a high standard. A preliminary injunction may be granted if the patent holder can show:
If a preliminary injunction is issued, the patent holder usually will be required to post a bond to secure any costs or damages that the accused infringer will suffer if the preliminary injunction is later found to be improperly granted. A preliminary injunction will turn into a permanent injunction if the patent holder succeeds in proving its infringement claim.
Even if no preliminary injunction is sought, a patent holder may nevertheless seek a permanent injunction after judgement has been entered, by demonstrating: (1) that it has suffered irreparable injury, (2) that monetary damages are inadequate, (3) that considering the balance of hardships, an injunction is warranted, and (4) that the public interest would not be disserved by a permanent injunction.[11]
Patent litigation has become an increasingly expensive and time-consuming endeavor. A recent survey of the American Intellectual Property Lawyer’s Association (AIPLA) estimated that a patent litigation costs around $1.4 million for a case with less than $1 million dollars at stake, and $6.375 million or more for cases where $25 million or more is at stake.[12] Overall, current patent litigation costs are estimated to be between $2.3 to $4 million, varying somewhat case-to-case depending on the circumstances.
There are steps that a company might take in advance to reduce the risk of costly patent litigation. For example, having a strong patent portfolio of your own can help to deter litigation in the first instance by other patent holders. A company may be less likely to initiate litigation if they believe they could also be found liable for patent infringement, and often patent litigation between competitors can be resolved by negotiating a cross-license. A company looking to launch a new product or process can also first attempt determine whether its competitors (or others) have relevant patents. Issued patents are by their very nature public, and by reviewing the patents that have issued, a company can determine what patents might be out there and whether they have freedom to operate (FTO). Conducting an FTO analysis can help identify and understand potential patent infringement risks, formulate non-infringement or invalidity theories to potentially negate a charge of willful infringement, and allow a company to be prepared to respond if a patent infringement issue arises.
A patent holder has the right to enforce its patent up until its date of expiration (typically 20 years from the earliest effective filing date). However, having a valid patent does not mean a patent holder can sit on its rights to enforce the patent forever. As noted above, damages for patent infringement can only be obtained for infringement that occurred six years prior to the filing of the complaint.[13] Undue delay in bringing an action can give rise to equitable defenses and can be used to undercut a request for a preliminary injunction. Filing suit in a timely manner also ensures that evidence is not destroyed or lost.
A crucial part of any lawsuit is identifying the correct parties. The plaintiff in a patent infringement case may not be the actual inventor or original owner of the patent, but may instead be a company that obtained the patent rights by assignment. If the patent rights are assigned to a specific subsidiary, that subsidiary must be named as the plaintiff. In some instances, an exclusive licensee may also be permitted to join in a lawsuit with the patent holder. In any event, it is important to determine what specific entity has standing to sue before filing a complaint for patent infringement.
Accused infringers should also be aware of the potential of being sued by non-practicing entities (NPEs). An NPE is someone that holds a patent for a product or process but does not actually develop the process or perform the process. Some NPEs aim to monetize intellectual property portfolios through licensing and technology transfer agreements while others, sometimes referred to as “patent trolls,” obtain patents to assert patent infringement suits against several accused infringers and seeking quick settlements. NPEs can range from single individuals to very large firms.
For the patent holder, identifying the accused infringer can also sometimes be complicated. A patent holder can name every entity it believes has committed an infringing act as a defendant in the action. This may include various individuals, business, and/or organizations. Early discovery in the case may be used to identify any other potential entities who might need to be added as defendants. Courts often set a deadline for amending the pleadings to include parties that are revealed in the discovery process.
Before filing a patent lawsuit, Federal Rule of Civil Procedure Rule 11 requires patent holders to perform a reasonable prefiling investigation. The requirements of Rule 11 are relatively straightforward. The rule requires that all pleadings, motions, or papers filed with the court “to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances” are not being filed for an improper purpose and are warranted by law and nonfrivolous, and that factual contentions have or will likely have evidentiary support.[14] A patent plaintiff must then perform a reasonable investigation to determine that the product or process that will be accused of infringement in fact infringes the patent claims that will be asserted. Failure to perform an adequate pre-suit analysis could lead to the court granting sanctions, including expenses and attorneys’ fees, or even declaring an exceptional case.
A patent infringement action is brought by filing a complaint in the proper venue, and the notice requirement is typically met by serving the complaint on the defendant(s) after the case has been filed. A patent holder may also put an accused infringer on notice of its patent rights before filing a complaint by sending a notice letter. The notice letter serves to educate the accused infringer of the patent holder’s legal rights and can serve as a starting point for licensing and settlement negotiations. Putting the accused infringer on notice of the patent holders’ rights can also start the accrual of damages for infringement and/or help support a claim for willful infringement. On the other hand, serving a notice letter before filing a complaint may result in the accused infringer initiating their own lawsuit seeking declaratory judgment of non-infringement or patent invalidity. Under those circumstances, the accused infringer will have more control over the location of the lawsuit and the timing of its filing. So patent holders need to carefully consider their desired objectives before sending out letters that accuse others of patent infringement.
Finding the proper court to file a patent action requires three main considerations: personal jurisdiction, subject matter jurisdiction, and venue. First, the court must have personal jurisdiction over the parties. The requirements for personal jurisdiction in a patent case are the same as any other case: the defendant must have minimum contacts with the forum state. Minimum contacts is usually satisfied if the defendant delivers products into the stream of commerce with the expectation they will be purchased by consumers in the forum state.
Second, the court must have subject matter jurisdiction over the cause of action. Since patents are protected by federal statute, federal district courts automatically have subject matter jurisdiction over patent cases.[15] However, it is important to note that just because a patent is at issue in the case does not automatically mean that the federal district court will have subject matter jurisdiction. If there are other claims in the case, such as contract disputes, trade secret, trademark, products liability, etc. that are controlled by state law, and the patent issues are tangential to the case as a whole, then federal courts may only have subject matter jurisdiction if there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.
A patent action must be filed in the appropriate federal district court, which brings up the third consideration: venue. Patent cases are governed by the patent venue statute, 28 U.S.C. § 1400(b), which states that a patent infringement suit can only be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.[16] For purposes of the venue statute, the state where a corporation resides is only its state of incorporation. Whether a corporation has a “regular and established place of business” in a judicial district depends on the specific facts at issue.
If a patent holder is worried about infringing goods being imported into the United States, an alternative to filing in federal district court is filing a petition for an investigation at the International Trade Commission (ITC) under Section 337 of the Tariff Act of 1930.[17] Like in district court, patent holders seeking relief from the ITC under Section 337 must file a complaint alleging the infringement of a valid, enforceable patent. However, at the ITC, complaints must also allege that there is an existing or soon-to-be-existing domestic industry relating to the products protected by the asserted patents.[18]
The ITC is an ideal forum in some cases because it provides more expeditious relief and can prevent infringing goods from entering U.S. borders and therefore the U.S. market. Unlike district court patent cases which can easily take 2-3 years, ITC cases are generally decided in 12-18 months. The ITC also has broader jurisdiction than district courts over parties and goods which allows it to enforce its decisions more easily. Unlike district courts, however, the ITC cannot award damages for patent infringement; the only relief it provides is an exclusion order blocking infringing products from entering the U.S. market, which order is enforced by U.S. Customs and Border Protection.
An ITC investigation can occur in parallel to a district court action, but decisions from the ITC are not binding on district courts. Since an ITC decision may impact the issues in dispute before the district court—and are generally resolved more quickly than in district court—parties may seek to stay district court proceedings until the conclusion of the proceedings before the ITC.
In any legal action a properly filed complaint is the first step to having a case heard before a district court.[19] The complaint sets out the facts and legal reasons the company filing the suit (the plaintiff) believes it has a legal claim against the named defendants. At the end of a complaint, the plaintiff states the relief requested from the court. For patent litigation, this is most often money damages based on the number of products that infringe the asserted patent. If the defendant is continuing to sell infringing products, a patent holder may also ask for the court to order an injunction.
To meet their pleading requirements, patent holders generally also identify at least some of defendant’s products that infringe specific patent claims as part of the complaint. Additional products may be identified through discovery. The complaint also explains why venue is proper in the federal district court where the case is brought based on where the defendants are and where the alleged infringing activity occurred.
While a complaint is only required to be a short and plain statement showing why the plaintiff is entitled to relief, the facts alleged must do more than suggest a possibility of infringement. The complaint must show it is plausible; that the stated facts, if true, would meet the elements of patent infringement.[20] This may include alleging on an element-by-element basis that claims of the asserted patent(s) are infringed. Usually, complaints separately number each factual allegation.
Once a complaint is filed with the court and served to the named defendants, defendants must either file an answer or a motion to dismiss. A motion to dismiss asks the court to reject a complaint because it fails to include a required element or plead facts that could allow the plaintiff to recover. The court does not weigh evidence for a motion to dismiss. It takes the assertions in the complaint as true to determine if a legal basis for relief has been pled. Thus, motions to dismiss are often unsuccessful. If a motion to dismiss is granted, the plaintiff often has an opportunity to address the alleged deficiencies through an amended complaint. If appropriate, a defendant may also move to transfer the case to a different judicial district at this early stage.
If the complaint survives any motions to dismiss, the defendant must next file an answer to the complaint. In the answer, a defendant can affirm or deny each numbered factual allegation in the complaint. The goal of an answer is to simplify the issues that need to be resolved. For example, a defendant may admit allegations about where its company is located and what products it sells, but deny that those products infringe claims of any identified patents. A defendant may also submit counterclaims in the answer, which can include asserting its own patents offensively, or asserting declaratory judgment claims for non-infringement or patent invalidity.
The answer is where defendants can assert legal reasons for why the plaintiff cannot recover on their claims for patent infringement. As noted above, in patent litigation, common defenses raised in an answer include:
In addition to raising patent invalidity defenses in the answer, another common strategy for defendants early in the litigation is to file an inter partes review (“IPR”) with the Patent Trial and Appeals Board at the U.S. Patent and Trademark Office. In an IPR, the petitioner challenges the validity of claims in a patent on certain types of prior art defenses (35 U.S.C. §§ 102 and 103). Unlike district court, where it can take years to resolve all issues, IPRs have a much quicker timeline, with less than a year to a decision after a petition has been instituted.[21] Succeeding in an IPR can obviously result in a quicker and less expensive defense if the defendant is successful. However, if the patent survives the IPR, the defendant will be estopped from raising certain defenses in the district court action. A defendant needs to decide whether to mount a defense through IPR relatively quickly, as the petition must be filed within a year of the start of the district court action.
When there is a pending IPR, a district court defendant may file a motion to stay the case. If granted, this would put the district court case on hold until a final IPR decision in case the patent is found invalid. District court judges have a lot of discretion in deciding whether to stay the district court action. The more quickly the IPR is filed, the more likely it is that the district court judge will see the benefit of staying the district court action pending patent office review.
Discovery often takes up a significant amount of time of a patent litigation and can be the source of significant expense. In discovery, the parties exchange relevant documents and things, respond to written discovery requests, conduct depositions of key witnesses, and overall develop their case theories based on that information.[22] Every district court has its own set of local rules based on the federal rules of civil procedure that govern the discovery process. The court will set dates for the close of discovery and key events at an initial scheduling conference at the outset of the case. Parties can also serve subpoenas requesting production to third parties.[23] Because these parties are not part of the lawsuit, they often object to requests that impose an undue burden.
There are four main types of discovery: requests for production of documents, interrogatories, requests for admission, and depositions.
Requests for production ask the opposing side to produce documents related to a given topic. The party receiving the requests has the right to object, and any disputes are ultimately resolved by the court. A party is required to conduct a reasonable search for documents in response to the requests and provide copies to the other side. Confidential documents may be subject to a protective order, which limits who has permission to review the documents (often times documents can only be reviewed by the opposing party’s outside counsel). Also, documents that are protected by attorney client privilege are withheld from production to the opposing side and identified on a privilege log. Common topics for document requests may include the research and development of the patented technology, documents showing when a defendant became aware of the asserted patent, preexisting inventions in the same field (prior art), and the number of sales from accused products. Email communications can also be subject to document requests. Given the substantial burden associated with collecting and reviewing emails, parties sometimes agree to protocols to streamline the collection and production of electronically stored information by limiting the production of such documents to specific document custodians or search terms.
Interrogatories are questions requiring a written response from the receiving party. Interrogatories can be a useful tool for collecting certain types of information; however, as they are generally prepared by the opposing party’s attorneys, the information provided is often carefully selected and vetted. An interrogatory can ask a party to provide their contentions or theories of the case the case, which can help to narrow the issues in dispute. Parties are only permitted to serve a limited number of interrogatories.
Requests for admission ask a party to admit specific facts. These tend to be narrow questions used to try and simplify the issues in dispute before trial. For example, requests for admission can be used to establish the authenticity of documents to avoid the need to do so with witnesses at trial.
Depositions often occur after the initial phases of discovery, when the parties have enough information to question key witnesses, but that is not always the case. Sometimes it may make sense to hold an early deposition and try to get information that can be used to seek more discovery. But generally, each witness may be deposed only once, so witnesses need to be selected strategically. Parties are also only permitted to conduct a limited number of depositions. Deposition testimony may also be requested from a company itself. Under those circumstances, specific topics are identified and a company representative must be designated who is prepared to answer questions on the identified topics. Their answers are binding on the company as corporate testimony.[24]
Some courts also have patent local rules that provide additional guidance and requirements for key milestones in patent cases.[25] For example, patent local rules may modify or add to the existing local rules. They cover issues including when and how to add infringing products to the suit, what each party needs to initially disclose for invalidity and infringement positions, and the procedure for claim construction where key terms of the patent are defined. Generally speaking, the purpose of such rules is to require the parties to disclose the patent infringement and validity positions early in the litigation and prevent them from taking a “shifting sands” approach during claim construction.
Claim construction is the process by which the court defines key technical terms in a patent.[26] Because patent claims are not always easy to understand, key words or phrases frequently need to be clarified or defined. Often, even seemingly common and clear terms will be the subject of claim construction disputes. The claim construction process is often a significant milestone in a patent litigation and can have a significant impact on whether a patent is infringed or invalid. Clearly defined terms reduce the uncertainty of how broad or narrow the claims are and whether the accused products are likely to infringe. In some instances, a claim construction ruling by the court can be dispositive.
Some courts have specific requirements for claim construction exchanges set forth in their patent local rules. The parties typically confer on claim terms they believe the court should construe and offer competing proposals on what the correct meaning is. Generally, patent terms should be interpreted in the way the language would be understood by a “person of ordinary skill in the art.” Intrinsic evidence of the meaning of the patent claims is often key and comes directly from the patent claims or patent specification. Extrinsic evidence, such as an expert’s understanding of the term or how other patents in the field use a particular term, may be relevant but are given less weight than intrinsic evidence. Courts are not required to use the same constructions as each other or the patent office, but they often try to remain consistent.
After fact discovery concludes, parties typically have a deadline to identify expert witness and exchange expert reports.[27] The most common experts in patent litigation are technical experts knowledgeable about the field of invention and damages experts. Patent cases can be technically difficult for a judge or jury to understand, so experts in the field of the invention are essential for explaining these concepts.
Damages experts can help calculate the amount of money an infringer should pay. They do not need to have a background in the technology of the patent, but usually have an economics background and can explain why their calculations are in accordance with the standard theories of damages.
Summary judgment is the last key stage before trial. A party can move for summary judgment on issues that it believes must be ruled in its favor as a matter of law.[28] If the opposing party can identify any material factual disputes, the court should deny summary judgment so that the trier of fact can resolve the dispute. In patent litigation, issues of infringement and invalidity often involve underlying factual disputes, making them inappropriate for summary judgment, but occasionally there are claims or defenses capable of being decided in summary judgment.
At trial, the parties make their case in front of either a judge or jury.[29] The party asserting patent infringement has the burden to prove that it is more likely than not that the defendant infringed the patent. During trial, both sides give opening statements explaining what the witness testimony and documents will show. Witnesses are called to establish evidence the trier of fact can rely on, and the witnesses are subject to cross examination where biases and weaknesses can be exposed by the opposing side. At the end of the trial, each side gives a closing argument.
The plaintiff has a right to trial before a jury (and must request one in the complaint itself), but may choose to have issues decided by the judge in a bench trial instead. Bench trials can help if a patent is complex and unlikely to be easily understood by jurors or if the judge has experience in patent cases. In cases involving more than one patent or asserted patent claim, patent infringement and validity is determined on a claim-by-claim basis. If even just one claim found to be infringed, damages may be awarded in an amount determined by the trier of fact. Following the decision of the judge or jury, judgment will be entered in favor of the successful party.
After the judge or jury reach a verdict and the court enters a final judgment, the losing party may appeal the judgment.[30] An appeal may be based on misapplication of patent law, incorrect claim construction, or procedural defects during the trial. All patent cases, including those from federal district courts, the U.S. Patent Trial and Appeal Board, and the ITC, are appealed to the Court of Appeals for the Federal Circuit. The Federal Circuit is a specialized appeal court with judges who are familiar with patent cases. All appeals are before a panel of three judges, and the parties may only rely on the record and argument from the trial court. The Federal Circuit may affirm the trial court, reverse the trial court, or send the case back to the trial court with instructions for how to correct identified issues. If a party disagrees with the Federal Circuit’s ruling, the party may file a petition for the case to be heard by all of the Federal Circuit judges, which request may or may not be granted. A party may appeal an adverse Federal Circuit decision to the Supreme Court of the United States, but the Supreme Court has discretion in selecting which cases it will hear, and very few patent cases are ultimately considered by the Supreme Court.
This chapter has hopefully provided a helpful overview of patent enforcement and the litigation process. There are many nuances and issues that commonly arise in patent litigation that are unique to this area of law, and so if you find yourself confronted with issues of patent infringement, consulting with experienced patent counsel is recommended to ensure the best possible outcome.
[1] Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997)
[2] 35 U.S.C. § 271(a).
[3] 35 U.S.C. § 271(b).
[4] 35 U.S.C. § 271(b).
[5] See, e.g., Vanderlande Indus. Nederland BV v. ITC, 366 F.3d 1311 (Fed. Cir. 2004).
[6] See, e.g., Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008).
[7] 35 U.S.C. § 284.
[8] See 35 U.S.C. § 287.
[9] 35 U.S.C. § 284.
[10] 35 U.S.C. § 285.
[11] eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
[12] AIPLA 2019 Report of the Economic Survey (Sept. 2019).
[13] 35 U.S.C. § 286.
[14] Fed. R. Civ. P. 11.
[15] 28 U.S.C. § 1338(a).
[16] See also TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S.Ct. 1514 (2017).
[17] 19 U.S.C. § 1337.
[18] 19 U.S.C. § 1337(a)(1)(B) and (a)(2).
[19] Fed. R. Civ. P. 3
[20] Fed. R. Civ. P. 8; Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
[21] 35 U.S.C. § 315(b)
[22] Fed. R. Civ. P. 26
[23] Fed. R. Civ. P. 45
[24] Fed. R. Civ. P. 30
[25] For examples, see the Local Rules for N.D. Cal., D. Del, D. Mass, and E.D. Tex.
[26] Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005)
[27] Fed. R. Civ. P. 26(a)(2)
[28] Fed. R. Civ. P. 56
[29] Fed. R. Civ. P. 58
[30] Fed. R. Civ. P. 60
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