"'Prior User' Defense Still Unpopular with Accused Infringers," Law360

September 3, 2015

In an article published on September 3, 2015, Coby S. Nixon provides guidance on the “prior user rights” defense to patent infringement and explains why it is creating unfavorable attitudes amongst accused patent infringers. The article details several concerns that may be deterring the use of the prior rights defense, including: infringement may have to be conceded, the defense may not dispose of all asserted claims, an invalidity defense may be preferable to asserting prior user rights, and asserting the defense may risk an award of attorneys’ fees. Mr. Nixon emphasizes that “as more patents issue and are asserted in litigation that are subject to the expanded prior user rights defense, the popularity of the defense may increase. But the empirical evidence to date and strategic considerations suggest that the defense will continue to be raised in only an extremely small percentage of cases.” Full the full article, please click here.

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