| Patent & Trademark |
Opposing patent trolls is in our wheelhouse. Our civilization is advanced by smartly pursuing innovation, hence the following mantra stands at the very top of the Woosley Naragon letterhead: Vigorously advocating Innovative Innovation in both Technology and Law! As we see it, this is the most important thing we do, because it affects the greatest number of souls in a positive & proactive way. Our practice of patent law in Doylestown, PA is centered around complex civil litigation. We strive to encourage and protect innovation and innovators.
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Unfortunately, many startups and their venture-capital investors can find themselves caught in the crosshairs of unscrupulous patent trolls [aka non-practicing entities (NPEs)]. These trolls have mutated to become skilled at targeting and extorting hefty settlements from legitimate operating business entities, thereby diverting precious capital away from R & D and job creation. We suspect that an unhealthy percentage of the shake-downs and payoffs are cloaked in secrecy because they’re protected by the whispers of confidentiality agreements. The spurious demand letters and lawsuits aren’t just inflicting legal and financial pain—they’re also stifling innovation, hampering business and, most disturbingly, undermining confidence in judicial processes and calling into question our society’s, or our Government’s, ability to deal with this type of innovative extortion. We swing for the fences and swing both ways as we fight to thwart patent trolling.
Woosley Naragon specializes in Markman hearings, also known as claim construction hearings. These pre-trial hearings are ordinarily part of a claim in which a plaintiff alleges patent infringement. A Markman hearing takes place in a U.S. District Court, allowing the federal judge to review evidence from all parties regarding the meaning of key words in the claim.
Markman hearings in federal court have become common practice in patent infringement cases since the U.S. Supreme Court decided the case of Markman v. Westview Instruments, Inc. in 1996. The Supreme Court found that a judge must make decisions on the language in a patent claim as a matter of law. Prior to this ruling, juries could decide on patent claims as a matter of fact.
The Markman decision means that the court (the judge) now decides a critical piece in patent infringement cases based on its interpretation of the claims. Accordingly, Markman hearings tend to encourage out-of-court settlements, since the court’s finding about the meaning of key terms establishes the most likely overall outcome. This hearing may take place as part of a motion for preliminary investigation before the end of the case’s discovery phase. A Markman hearing may also occur after the discovery phase as part of a motion for summary judgment. Some Markman hearings also take place during the trial before jury selection.
The evidence presented during a Markman hearing may be classified as extrinsic evidence or intrinsic evidence. Extrinsic evidence generally consists of unwritten sources such as expert opinion and testimony. Intrinsic evidence includes written sources, primarily the patent’s prosecution history and patent documentation. An attorney cannot present extrinsic evidence in a Markman hearing that contradicts intrinsic evidence. The Markman decision doesn’t mean that a Markman hearing must take place during a patent claim, as the court decides if a Markman hearing is necessary. The court often bases the need for such a hearing on whether the intrinsic evidence available in the case is sufficient, by itself, to construct [that is, properly interpret] the claim.
The specific form of a Markman hearing can vary greatly. It may be as simple as a single argument from an attorney solely based on the intrinsic evidence. At the other extreme, some Markman hearings resemble a short trial with live witnesses and require more than one day to complete. Some courts allow attorneys to present expert witness without subjecting them to cross examination, and courts may also appoint their own expert witnesses.
Besides representing you or your company at a Markman hearing in federal court, Woosley Naragon can also conduct a Markman hearing in its role as a Private Judge. We can do this as part of an agreement between competing companies, or as a trial-run in a moot court evaluation. Please click on our Private Judge practice area for further information.