Not all patents are created equal. Weak patents don’t just fail to protect your innovations—they actively help competitors by providing blueprints for designing around your technology faster and cheaper. The patent violation cases examined here span 170 years of intellectual property evolution, revealing critical lessons about what triggers billion-dollar exposure versus routine settlements, and which defensive strategies work when you’re accused of infringement.
In 2012, a California jury awarded Apple $1.05 billion after finding Samsung’s Galaxy phones infringed iPhone design patents—launching what became the most expensive smartphone patent war in history. This landmark legal battle set important standards in the tech industry, influencing how companies approach design and intellectual property disputes. After six years of appeals and retrials, Samsung paid $539 million. Still, the real cost was far higher: both companies spent hundreds of millions in legal fees disputing the placement of rounded corners and the home button.
This wasn’t an outlier. Patent violations have led to initial jury verdicts exceeding $2.54 billion (Idenix v. Gilead in 2016, though this was later reversed by a federal judge in 2018), to $612.5 million settlements (BlackBerry v. NTP), and to nearly shutting down entire product lines through injunctions.
Yet here’s what most businesses miss: while these mega-verdicts grab headlines, the median patent damages award is only $3.7 million, and patent lawsuit filings have dropped 44% since 2013—from 6,497 cases to 3,639 in 2022.
Under the United States’ first-to-file patent system, competitors are already working on similar innovations. Every day without strategic patent protection entails a loss of competitive advantage and a diminished market position. While you hesitate, competitors file applications that become prior art, potentially blocking your ability to patent similar innovations and establishing their own exclusive rights in the marketplace.
The patent violation examples examined here span 170 years of intellectual property evolution, from Samuel Morse’s telegraph battles in 1854 to 2024’s mRNA vaccine disputes. Each reveals critical lessons about what triggers billion-dollar exposure versus routine settlements, how courts actually interpret patent claims in practice, the legal precedents established by these cases, and which defensive strategies work when you’re accused of infringement.
SIDEBAR: Patents in Popular Media – The Business Lesson from “Flash of Genius”
The 2008 film Flash of Genius dramatizes inventor Robert Kearns’ battle against Ford Motor Company over windshield wiper patents. While Hollywood emphasized the David-versus-Goliath courtroom drama, the real lesson is more nuanced: Kearns won his patent fight—his patents were sound—but his refusal to accept reasonable settlement offers, and his insistence on controlling manufacturing, ultimately cost him far more than he gained.
The film highlights a critical business reality: having a valid patent is necessary but not sufficient for commercial success. Strategic patent portfolio management requires balancing legal rights with business realities. Sometimes the most brilliant move is licensing rather than litigation, partnership rather than going it alone. The strongest patent protection in the world means little if business strategy undermines your ability to monetize it effectively.
This article focuses on legal strategy—understanding infringement, damages, and defenses—but it should not be forgotten that patent law serves business objectives. The goal isn’t just winning legal battles; it’s building sustainable competitive advantages.
Understanding Patent Infringement: A Critical Distinction
What Infringes Patents—And What Doesn’t
Before examining specific cases, it’s essential to clarify a foundational concept that’s often misunderstood: patents do not infringe other patents. Only products, processes, or methods can infringe patents.
When someone makes, uses, sells, or imports a product, or performs a process, and practices the claims of another person’s patent without authorization, it constitutes infringement. The patent itself—as a legal document—cannot infringe another patent.
The Difference Between Infringement and Prior Art
Competitors’ patent applications affect your business in two distinct ways:
- Prior Art Impact (Not Infringement): When competitors file patent applications before you do, those applications can become prior art that blocks your ability to obtain patents on similar inventions. This affects patentability—whether a patent can be granted—but it does not constitute infringement.
- Market Exclusion Through Granted Patents: When competitors receive granted patents, they gain exclusive rights to make, use, or sell their patented inventions. If your products practice their patent claims, you may be infringing their patents. But again, your patent application or granted patent cannot infringe on theirs.
Why This Matters
Under the United States’ first-to-file system, the first inventor to file a patent application generally prevails in the race for patent protection—regardless of who invented first. This creates urgency: while you hesitate, competitors file applications that:
- Establish priority dates ahead of yours
- Become prior art references against your later applications
- Create patent thickets you must navigate through licensing or design-arounds
- Secure exclusive market positions you may need to challenge or license
The strategic imperative is clear: file early, file strategically, and build patent portfolios that provide both offensive protection and defensive leverage. Delayed action doesn’t risk “infringement” by competitors’ patent applications—it risks losing the race to establish your own intellectual property rights.
What Are Patent Violations?
Patent violations occur when someone uses, manufactures, sells, or imports a patented invention without the patent holder’s permission. Under 35 U.S.C. § 271, patent holders receive exclusive rights to their inventions for typically 20 years from the filing date, creating temporary monopolies that incentivize innovation while eventually releasing technology to the public domain.
The patent system grants owners the right to exclude others from making, using, selling, or importing their claimed invention throughout the United States. Patent enforcement and litigation are governed by federal law and typically take place in federal district courts. Patent owners have a 6-year statute of limitations to enforce their rights and recover damages for infringement. This period can extend beyond patent expiration, allowing enforcement actions even after the patent expires.
When patent owners face infringement, they pursue remedies in federal court, seeking monetary damages and, potentially, a permanent injunction to stop the infringement. A permanent injunction is one of the possible remedies courts may grant in a patent infringement case, but it is not automatically awarded and depends on several legal factors. Patent owners also have a 6-year statute of limitations to enforce their rights and recover damages for infringement.
The Infringement Analysis Process – An essential early step is a prior art search, which determines if your idea is patentable before proceeding further.
Determining obviousness—whether your invention would have been obvious to someone skilled in the field—is the #1 challenge in patent prosecution and requires experienced legal counsel with years of training in overcoming USPTO obviousness rejections.
This requires comparing the accused device or method against each element of the patent claim to establish literal infringement or infringement under the doctrine of equivalents. In a patent infringement case, this analysis is a critical step as the case proceeds through the courts.
The burden is substantial: patent owners must prove the accused product meets every limitation of at least one claim, either exactly or equivalently. Miss a single element, and there’s no infringement. As the Federal Circuit emphasized in Warner-Jenkinson v. Hilton Davis, the all-elements rule means that even minor differences can preclude literal infringement, thereby forcing patent holders to rely on the doctrine of equivalents, which courts apply narrowly.
Direct vs. Indirect Infringement
Direct infringement is straightforward: performing each element of a patent claim without authorization. If someone manufactures your patented circuit board design or electrical control system, they’re a direct infringer.
Indirect infringement extends liability through two mechanisms:
- Contributory infringement: Supplying a component with no substantial non-infringing use, knowing it’s for a patented invention. If a supplier provides a specialized semiconductor component only useful in a patented electrical system and knows the buyer will use it that way, they’re liable.
- Induced infringement: Actively encouraging or instructing others to infringe through manuals, advertising, or technical support. In Global-Tech Appliances v. SEB (2011), the Supreme Court held that induced infringement requires knowledge of the patent and intent that the induced acts constitute infringement.
However, patent rights have limits. In Quanta Computer v. LG Electronics (2008), the Supreme Court reaffirmed patent exhaustion. Once a patented product is sold by the patent owner (or with their consent), the patent can’t control downstream use of that specific item. This prevents patent holders from double-dipping—you can’t sell a component with authorization, then sue the buyer for using it.
Landmark Historical Patent Violation Examples
Four 19th and 20th-century cases established principles that courts still apply to evaluate modern software, electrical systems, and technology patents.
O’Reilly v. Morse (1854): The Abstract Ideas Limitation
Samuel Morse patented his telegraph apparatus and claimed exclusive rights to the use of electromagnetism for long-distance communication. The Supreme Court struck down that broad claim, ruling Morse could patent his specific telegraph process but not monopolize the fundamental principle of electromagnetic communication itself.
This established that abstract ideas and natural principles aren’t patentable, a theme echoed 160 years later in software patent cases. When courts today invalidate patents on “generic data collection” or “fundamental economic practices,” they’re applying Morse’s principle: you can’t claim ownership of basic scientific concepts, only specific applications you actually invented.
This principle became critical 160 years later when courts began invalidating software patents under Alice Corp. v. CLS Bank, requiring that patent claims describe specific technical implementations rather than abstract ideas.
Diamond v. Diehr (1981): Software’s Foundation
Diehr’s patent covered curing rubber using a computer algorithm to calculate optimal cure time. The Court held that while mathematical formulas alone aren’t patentable, applying an algorithm in an industrial process that transforms materials can be patent-eligible.
This established the machine-or-transformation test: if a claimed process is tied to a particular machine or transforms an article, it’s more likely patentable. Diehr laid the groundwork for software patents by holding that integrating algorithms into technical applications could qualify for patent protection, though subsequent cases (Alice Corp., Mayo) significantly narrowed this opening.
Aro Manufacturing v. Convertible Top Replacement (1961): Repair vs. Reconstruction
Aro made replacement fabric for patented convertible car tops. The Supreme Court ruled that replacing worn-out fabric constituted permissible repair and did not constitute reconstruction. The case involved a combination patent and clarified that replacing individual unpatented components constitutes repair, not infringement of the combination patent. The Supreme Court also emphasized the limits of the patent monopoly, holding that it does not extend to replacing parts that do not embody the patented invention’s core inventive aspects. Car owners could maintain their vehicles without rebuilding the entire patented invention.
This repair-versus-reconstruction doctrine remains critical for consumers and third-party service providers. Patent owners can’t use exclusive rights to block ordinary maintenance, though the line remains contested; completely recreating a patented device crosses into reconstruction and infringement.
High-Profile Technology Patent Violations
Technology companies have fought the most expensive patent battles in history, with verdicts exceeding $1 billion and settlements reshaping competitive dynamics across entire industries.
Apple Inc. v. Samsung Electronics (2011–2018): The $539 Million Smartphone War
A 2012 California jury initially awarded Apple $1.05 billion, finding that Samsung’s Android phones copied iPhone features, including the rounded-rectangle front face, bezel, icon grid, and placement of the home button. Following the 2016 Supreme Court decision on design patent damages, Samsung ultimately paid approximately $539 million in settlement.
The litigation process involved several appeals, with the appeals court playing a crucial role in shaping the outcome.
The case established crucial precedents:
- Design patent damages: The Supreme Court ruled that damages don’t automatically equal all profits from a product when the patented design covers only a component. Patent holders must prove which profits specifically stem from the infringing design features.
- Trade dress protection: User interface elements and product aesthetics can constitute protectable intellectual property, not just underlying functionality.
- Willful copying: Internal Samsung documents showing deliberate imitation of iPhone design elements support enhanced damages findings, demonstrating how paper trails undermine “independent development” defenses.
These precedents underscore why patent quality matters: weak patents that fail to properly distinguish your innovations from prior art become roadmaps for competitors to design around your technology more quickly and cheaply. Strategic, well-engineered patents deter such copying attempts.
Oracle Corp. v. Google LLC (2010–2021): The API Fair Use Victory
Oracle accused Google of infringing Java API patents and copyrights in the development of Android. The Supreme Court ruled in 2021 that Google’s reimplementation of Java APIs constituted fair use, given the transformative purpose of enabling developer interoperability.
The dispute centered on the use of a computer program to implement Java APIs in Android, and the court considered the role of computer programs in determining patent eligibility.
Oracle initially sought $9 billion in damages. After the Supreme Court decision, Oracle recovered nothing. The outcome clarified that APIs—functional interfaces for software interaction—receive limited copyright protection when copied for transformative, interoperable purposes. Patent law, not copyright, remains the primary tool for protecting functional software innovations.
VirnetX v. Apple (2010–2020): The $502 Million VPN Verdict
After a decade of litigation, VirnetX won a $502.8 million verdict in 2020 for patents on secure communication technology used in FaceTime and iMessage. However, in 2023, the Federal Circuit upheld USPTO decisions invalidating two key VirnetX patents, thereby undermining the $502 million judgment.
This case demonstrates a critical defensive strategy: even after losing at trial, accused infringers can challenge patent validity through inter partes review (IPR) at the Patent Office. Sophisticated legal counsel knows how to pursue parallel USPTO proceedings that can invalidate patents that survived initial examination. Without valid patents, there’s no infringement liability—making validity challenges essential to modern patent defense strategy.
BlackBerry (RIM) v. NTP (2001–2006): The $612.5 Million Settlement
NTP obtained injunctions threatening to shut down BlackBerry’s email service for millions of U.S. government and business users. The pressure forced RIM to settle in 2006 for $612.5 million—then one of the largest patent settlements ever. For more on international patents, see this resource.
The case underscored how threats of injunctions create settlement leverage: facing service blackouts of critical infrastructure, companies pay substantial sums rather than risk operational shutdowns. This case sparked debate over “patent trolls” and contributed to the 2011 America Invents Act reforms, which introduced new mechanisms for patent challenges.
The Damages Reality Check
While these blockbuster cases generated headlines, the median patent damages award across all cases is $3.7 million—99.6% less than Apple v. Samsung’s initial verdict. Only rare cases involving highly valuable products, clear willful copying, or significant market disruption produce mega-verdicts. Most patent disputes settle for modest sums or reasonable ongoing royalties.
Recent Patent Violation Cases (2020–2024)
Contemporary infringement cases reflect how patent law grapples with 5G telecommunications standards, medical devices, and clean energy innovations.
5G Standard Essential Patent Wars: Apple v. Ericsson (2022)
Ericsson sued Apple to block the Global Sale of iPhones over 5G standard-essential patents (SEPs), which must be licensed on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Days before the scheduled U.S. trial in December 2022, the parties settled a cross-license agreement.
Reports indicated that Apple made a one-time payment of approximately $400 million, in addition to ongoing royalties. The settlement avoided potentially billions in damages or import bans across multiple countries.
The case reinforced how SEP disputes typically resolve: through negotiated licenses rather than court judgments, because injunctions on standard-essential technologies (such as 5G chips) create mutual-destruction incentives that pressure settlement. Courts in the U.S., Europe, and Colombia (which issued a brief injunction against Apple in 2022) all weighed FRAND commitments, clarifying that both patent owners and implementers have leverage in licensing negotiations. In this case, the court found that both parties held leverage in licensing negotiations arising from their FRAND commitments.
Medical Device Patents: DexCom v. Abbott (2021–2023)
Competitors DexCom and Abbott clashed over patents for continuous glucose monitors and wearable sensors for diabetes management. Both companies filed patent infringement suits (DexCom in the U.S., Abbott in Germany) over sensor accuracy, calibration algorithms, and data transmission. In response to alleged infringement, both companies filed suits and defended their patent positions, evaluating the validity of the claims and seeking to protect their innovations.
While DexCom initially sought injunctions, courts denied early relief, and some patents were invalidated via inter partes review. In late 2024, the companies settled globally, dismissing all lawsuits and agreeing to a 10-year litigation moratorium—with no money changing hands.
The outcome reflects industry reality: cross-licensing without financial compensation often resolves disputes when both sides hold overlapping patents. Each company prioritized peace over legal costs, refocusing on innovation rather than litigation.
Green Energy Patents: Hanwha Q-Cells v. LONGi (2020–2022)
Korean solar panel maker Hanwha sued Chinese rivals for infringing its high-efficiency solar cell technology. This was a patent infringement lawsuit that spanned multiple countries and legal systems. In 2022, a Netherlands court issued a cross-border injunction covering 11 countries, later extended to 16, blocking Longi from selling infringing solar panels across most of Europe.
This comprehensive relief stemmed from EU law, which allows a national court to prohibit the sale of European patents EU-wide. Longi had to recall and redesign its products to avoid infringing on the patented technology. Meanwhile, Longi got some Hanwha patent claims invalidated in the U.S., demonstrating how companies can win decisively in one region while losing ground elsewhere.
The solar panel showdown illustrates that courts will issue broad injunctions when infringement is clear, even if such injunctions disrupt supply chains across multiple markets. Robust patenting, along with careful freedom-to-operate analysis, is critical in the clean technology sector.
Types of Patent Violations with Real Examples
Understanding infringement categories helps businesses identify risks and develop IP strategies aligned with how courts actually analyze violations. Reviewing existing patents is crucial to identifying potential infringement risks and ensuring that your products or processes do not unintentionally violate another party’s intellectual property rights.
Direct Patent Infringement
Direct infringement occurs when someone makes, uses, sells, or imports a patented invention without permission—the most straightforward violation requiring proof that the accused product includes every element of at least one patent claim.
Manufacturing Patented Products
When manufacturers produce electrical devices, semiconductor systems, or software-implemented inventions covered by another party’s patent claims without a license, they commit direct infringement. Courts analyze cases through detailed technical comparisons, essentially matching specifications to determine whether products replicate patented systems or methods.
Conducting thorough freedom-to-operate searches before product launch—under the guidance of experienced patent counsel—can identify these risks early, when design-arounds remain feasible, thereby preventing costly infringement litigation.
Using Patented Processes
Even when the final product isn’t patented, using a patented process without permission constitutes infringement. This illustrates how infringement and validity are separate issues—one can infringe a patent claim, but later argue that the claim shouldn’t exist because it fails legal requirements, such as the patentable subject matter requirement.
Selling or Importing Infringing Products
Companies in retail or distribution chains may be liable for selling products that infringe patents, even if they do not manufacture them. In the smartphone wars, retailers selling Samsung phones that courts had ruled infringed Apple’s patents were technically infringing through their sales.
The patent exhaustion doctrine limits a patent holder’s rights after an authorized sale, preventing them from controlling downstream use or resale of the product.
U.S. law also allows the International Trade Commission to sue importers to obtain exclusion orders—bans on importation. In a 2023 ITC case, the agency ordered a ban on imports of Apple Watch devices for infringing AliveCor’s ECG sensor patents, although the parties settled before any product stoppages occurred.
Direct infringement is strict liability—intent doesn’t matter. You can infringe without realizing it, which is why conducting freedom-to-operate analyses before product launches is crucial.
Indirect Patent Infringement
Even without directly infringing, companies face liability for contributing to or inducing others’ infringement—doctrines that prevent end-running patents through intermediaries.
Contributory Infringement
This involves supplying components or materials that are substantial parts of patented inventions, knowing they’re meant for infringement, when components have no significant non-infringing use.
Suppose a supplier sells specialized electrical components or software libraries designed to function only in patented systems. In that case, they face contributory infringement liability when they know buyers will use them in infringing ways. In such cases, the supplier may be considered an alleged infringer if accused of contributing to patent infringement.
Crafting claims that capture contributory infringement while avoiding obviousness rejections requires a sophisticated legal strategy that must be ‘baked into the cake’ from initial filing.
Induced Infringement
Active encouragement or instruction causing others to infringe creates induced infringement liability. Inducers might not make or sell products, but through advertising, manuals, or technical support, they cause customers or third parties to use products in infringing ways. Patent owners may file an infringement suit against parties who induce others to infringe their patents.
Global-Tech Appliances v. SEB (2011) concerned a company that copied a patented deep-fryer design and sold it to retailers. Even though retailers or end users were direct infringers through sales/use, the supplier was held to have induced infringement by willfully blindfolding itself to the patent.
The Supreme Court ruled that induced infringement requires knowledge of the patent and that induced acts constitute infringement. Software providers whose documentation explicitly instructs customers to configure systems in infringing ways face inducement liability.
Patent Exhaustion Defense
Quanta Computer v. LG Electronics (2008) and Impression Products v. Lexmark (2017) established that authorized sales exhaust patent rights. If patent owners sell products or authorize sales, they can’t sue downstream buyers for using or reselling those specific items.
Printer manufacturers can’t sue customers for refilling ink cartridges after the first sale—the patent was exhausted. They also can’t sue third-party ink sellers for contributory infringement in refilling those cartridges. However, permissible repair differs from impermissible reconstruction: replacing worn parts is permitted, whereas completely remanufacturing devices constitutes infringement.
Design Patent Violations
Design patents protect ornamental appearances of functional items through the “ordinary observer test”: would an ordinary observer familiar with prior art be deceived into thinking the accused design is the same as the patented design?
Visual Similarity Analysis
Design patents cover appearance, not function, so infringement doesn’t require exact copying—it’s about overall visual impression. Apple’s design patents on the original iPhone covered devices with black rectangular front faces, rounded corners, and specific bezel widths.
In Apple v. Samsung, jurors found that Samsung’s Galaxy phones produced substantially similar overall visual impressions despite functional differences, such as additional buttons or slightly different dimensions. Minor variations won’t avoid design patent infringement if the aesthetic appears too close.
Note that provisional patent applications apply only to utility patents—design patents require a complete application from the outset, making strategic timing and professional preparation even more critical.
Scope and Limitations
Design patents only cover ornamental aspects. Features dictated purely by function (shapes necessary to make products work better) might not count toward protected “ornamentation.”
Fashion industry design patents frequently involve knockoffs copying protected ornamental features. Companies such as Christian Dior and Lululemon enforce design patents against competitors who imitate distinctive product designs—Lululemon’s design patent for yoga pants with specific waistband shapes led to settlements with Calvin Klein.
Damages and Remedies
Design patent owners can recover total profits from infringers’ sales of infringing products, unlike utility patents, where damages typically equal reasonable royalties or lost profits. However, the 2016 Supreme Court decision in Samsung v. Apple clarified that if design patents cover only components, the “article of manufacture” for calculating profits could be the component itself rather than the entire device.
Apple initially won all profits from Samsung on certain phones due to design patent infringement. On remand, Apple had to prove which profits were attributable to the specific infringing design features, rather than to the entire phone’s revenues. They still secured substantial damages (in the hundreds of millions), but the precedent limited the windfall potential of design patents.
Industry-Specific Patent Violations
Different industries exhibit distinct patterns of infringement shaped by innovation cycles, regulatory environments, and business models. The pharmaceutical industry, for example, faces unique challenges related to patent infringement, particularly regarding generic drug competition and patent protection for new medicines.
Software and High-Tech Patents
These industries experienced patent litigation booms in the 1990s-2010s, followed by corrections from court decisions that limited the scope of software patents.
Abstract Idea Rejections (Alice/Mayo)
Supreme Court decisions in Mayo (2012) and Alice (2014) significantly limited the patentability of software and business-method innovations. The courts clarified that a patentable invention must be more than an abstract idea or a natural law, referencing the standards set in Alice and Mayo. Many early 2010s software patent infringement suits ended when courts invalidated patents as abstract ideas.
Patent applications for software inventions must clearly demonstrate how the invention is more than a natural law or abstract idea to be eligible for patent protection. After Alice, patents on basic financial software or online advertising methods were routinely invalidated under § 101. NPE litigation waned as patents became easier to invalidate.
However, experienced patent prosecutors with sophisticated claim drafting techniques can increase Alice eligibility success rates by 25-50% through strategic specification writing and prosecution approaches that distinguish technical implementations from abstract ideas.
Standard-Essential Patents and FRAND
High-tech often involves industry standards (Wi-Fi, LTE, 5G). Patents essential to these standards must be licensed on FRAND terms, yet disputes arise over what’s “fair and reasonable.”
Unwired Planet v. Huawei (UK 2020) saw the UK Supreme Court set a global FRAND royalty for 4G patents and allow injunctions when Huawei refused to pay. In the U.S., Microsoft v. Motorola (2013) involved Microsoft suing after Motorola demanded exorbitant royalties for H.264 video-streaming patents—the court set a much lower FRAND rate.
This area has seen infringement actions (Motorola v. Apple, Nokia v. Oppo) that typically end in global licensing agreements rather than full exclusions. However, interim injunctions do occur: Germany and China have granted SEP injunctions, while courts also issue anti-suit injunctions to prevent “injunction tourism.”
Open Source and APIs
Tech companies must monitor patent issues in open-source software. While Oracle v. Google involved APIs as copyright (not patent) issues, software functionality patents used in open-source projects can also lead to infringement.
In the 2000s, patent holders asserted patents on MP3 against open-source MP3 implementations, forcing developers to negotiate licenses or switch to other codecs. Patent assertion entities have targeted users of open-source libraries, such as compression algorithms, for patent infringement fees. Companies that integrate open-source components require patent clearance.
Litigation Trends
Patent lawsuit filings dropped about 44% from 2013’s peak to 2022, from 6,497 to 3,639 cases. NPE litigation, while still present, hasn’t overwhelmed the system—only roughly 23% of patent remedies in the last 20 years went to NPEs.
Courts also rarely grant injunctions to NPEs now (since they don’t make products, showing irreparable harm is difficult). Patent infringement litigation in technology has shifted: greater emphasis on damages or licensing, less on shutting down competitors, and earlier filtering of weak patents via Alice and IPR proceedings.
Medical Device Patent Violations
This industry features innovative, patent-protected products, in which FDA approval requirements complicate timing and remedies.
Device Features and Algorithms
Continuous glucose monitors (DexCom v. Abbott) involved patents on sensor chemistry and data algorithms. Medtronic v. Edwards Lifesciences saw battles over transcatheter heart valve patents—highly technical engineering details.
Infringement analysis compares product specs to patent claims, but defendants sometimes tweak designs slightly to avoid literal infringement. The doctrine of equivalents can apply heavily—does a catheter with a somewhat different diameter or a sensor using a different enzyme still perform substantially the same function in substantially the same way? Expert testimony proves crucial.
Method of Treatment vs. Device Claims
Some medical patents claim methods of using surgical devices. Surgeons who perform patented methods may be direct infringers, but patentees rarely sue doctors (policy considerations).
Instead, they might sue device manufacturers for induced infringement if device instructions teach patented methods. Patents on specific laser eye-surgery equipment led companies to sue competitors for instructing that method—induced infringement by providing products with directions to practice patented procedures.
FDA and Injunctions
Medical device patent suits have unique wrinkles—because devices need regulatory approval, competitors might get injunctions on already-approved devices, sending doctors scrambling for alternatives.
Courts consider the public interest; for life-saving devices, injunctions may be denied or stayed. In Cordis v. Medtronic (2008), over heart stents, Cordis obtained an injunction against a Medtronic stent. Still, the court granted Medtronic a sunset period to ensure the abrupt removal of the medical option didn’t harm patients.
FDA approval processes mean generics or follow-on devices might be ready to launch right when patents expire, making litigation timing critical. Many cases end in cross-licenses or acquisitions—patent litigation often precedes negotiations over who can practice which technologies, sometimes leading to joint ventures or market exits in exchange for royalties.
International Patent Violation Cases
Patent enforcement is increasingly global, with companies fighting multi-front wars in the U.S., Europe, and Asia simultaneously—outcomes often differ by jurisdiction. United States patents are enforced under U.S. patent law, which federal courts and the United States Patent and Trademark Office administer.
Nokia v. Oppo (2021–2023): Cross-Border SEP Warfare
Finnish telecom giant Nokia aggressively enforced 4G/5G SEPs worldwide, suing Oppo (a Chinese smartphone maker) in more than six countries—Germany, the UK, France, Spain, India, and others—seeking injunctions when license negotiations failed.
European courts (notably in Germany) granted Nokia injunctions in 2022, compelling Oppo to withdraw phone models from those markets. Meanwhile, Oppo filed retaliatory suits in China, where courts set low global FRAND rates and issued anti-suit injunctions to halt Nokia’s foreign actions.
This created jurisdictional clashes: Chinese courts told Nokia to halt German cases; German courts refused, and Nokia proceeded, risking contempt in China. Ultimately, Oppo exited some European markets, and by mid-2023, reports suggested that settlement talks were underway.
The saga reveals that patent litigation strategy now requires considering where to sue. German courts are patent-owner-friendly (injunctions are relatively straightforward), while Chinese courts can favor local implementers and issue orders to undermine foreign cases.
Hanwha Q-Cells v. LONGi**: Cross-Border Injunction Power**
Hanwha used the European Patent Office system to obtain a patent effective in many countries, and then obtained a cross-border injunction in the Netherlands for 11 EU countries. This is notable because usually each country handles its own enforcement.
The EU’s Brussels regime permitted a Dutch court to issue injunctions that extended to countries in which the patent was also validated (except where parallel cases were pending). LONGi, facing a 16-country ban, had to scramble to redesign solar panels and reroute supplies to non-blocked regions.
Such cross-border injunctions are powerful but fragile—if appeals courts or other countries later find patents invalid or not infringed, they can unravel. LONGi received favorable U.S. decisions invalidating Hanwha’s patent, and the EPO was also reviewing it.
This underscores that, in patent law, the strictest jurisdiction can dictate short-term outcomes, pushing parties toward global settlements, even if the patents may not hold up everywhere in the long term.
International Trade Commission (ITC) in the U.S.
One unique U.S. enforcement tool is the ITC Section 337 proceeding—not precisely a court but a trade forum that can ban imports of infringing products. Companies often file ITC complaints alongside district court lawsuits for a one-two punch.
The ITC acts quickly (typically within 12-16 months of investigation) and can issue exclusion orders. In late 2022, the ITC ruled that Apple infringed Masimo’s patents related to pulse oximeter technology in the Apple Watch and recommended an exclusion order. In December 2023, the Biden administration declined to veto that exclusion—though Apple and Masimo settled before any watches got stopped at borders.
The ITC works in conjunction with the United States Patent and Trademark Office to enforce patent rights at the border, ensuring that US patent laws are upheld against infringing imports.
The mere threat of ITC bans often brings parties to the table. The ITC can be a favorable venue for patent owners because there’s no need to prove damages (only infringement and domestic industry), and the remedy—blocking imports—can be very coercive. Non-U.S. companies feel the heat particularly hard because losing means they can’t ship into the lucrative U.S. market unless they redesign or license patents.
Anti-Suit Injunctions (ASIs) and Anti-Anti-Suit Injunctions
A recent international wrinkle is courts issuing ASIs to prevent parallel litigation. This happened in the global Ericsson v. Apple fight. At one point, Apple obtained an ASI in Colombia that prevented Ericsson from enforcing a Colombian injunction, and Ericsson obtained an anti-ASI in Texas that prevented Apple from using foreign ASIs to undermine the U.S. case.
Chinese courts have also issued ASIs in SEP cases (Xiaomi v. InterDigital) to centralize disputes in China. In response, U.S. and German courts have issued anti-ASI orders. This tactical volley is now an element in international patent strategy: if you fear a foreign court will enjoin your case, you ask your home court to enjoin them first.
It’s legally delicate—not all courts are willing to restrain foreign litigation—but it shows the race to the courthouse now extends across borders. The first court to rule can influence subsequent courts, either by momentum or through these injunctions.
Consequences and Damages in Patent Violations
When courts find patent infringement, consequences can include substantial monetary awards, injunctive relief, enhanced damages for willful infringement, and attorneys’ fees, creating significant exposure.
Injunctive Relief: Courts determine whether to grant an injunction by applying the traditional four-factor test outlined in eBay Inc. v. MercExchange (2006), which considers irreparable injury, the adequacy of legal remedies, the balance of hardships, and the public interest. Injunctions are no longer automatic upon finding infringement and require specific, compelling factors to justify such equitable relief.
Figure 1: Permanent injunctions in U.S. patent cases (excluding default judgments) dropped from 80 in 2008–2012 to 36 in 2018–2022, reflecting the impact of the Supreme Court’s eBaydecision.
Enhanced Damages for Willfulness: The court determined whether enhanced damages were appropriate based on the egregiousness of the infringement. For entrepreneurs seeking to avoid such litigation risks, it is crucial to consider seven key questions before pursuing a patent to ensure a solid foundation and strategic value for their innovations.
Monetary Damages
Under 35 U.S.C. § 271, prevailing patent owners receive “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty” for use made of inventions. Two primary measures:
Lost Profits
If patent owners prove that but for infringement, they would have made additional sales or charged higher prices, they can recover lost profits. This requires demonstrating demand for patented products, the absence of acceptable non-infringing substitutes, manufacturing and marketing capacity, and per-unit profit.
Lost profit awards tend to be large if proven, because patent owners capture the full economic gain they would otherwise have realized. However, it’s often hard to obtain: you must show essentially two-player markets or that infringers took sales you definitely would have gotten. If multiple competitors exist or capacity is constrained, courts may limit lost profits.
Reasonable Royalty
This is the floor for damages and often the default—the royalty rate and base that willing licensors and licensees would have agreed to at the time infringement began, in hypothetical negotiations.
Juries hear evidence on comparable license agreements, the importance of patented features to products, profitability, etc. A reasonable royalty is often assessed using the Georgia-Pacific factors (15 factors ranging from patent advantages to the parties’ relationships). In complex products (such as smartphones), damages are often calculated based on reasonable royalties for components or features rather than the entire device’s profits.
The median patent damages award has been approximately $3.7 million, and even excluding default-judgment cases, the median remains in the single-digit millions. That said, outliers skew averages—from 2010 to 2020, there were multiple verdicts exceeding $100 million, but many small cases as well.
Record High Damages
More recently, NPE VLSI Technology won a $2.18 billion verdict against Intel in Texas in 2021 (for two chip patents) and a separate $948 million verdict in 2022 for another patent—both are under appeal. Some patent claims were invalidated by the Patent Office, illustrating how such significant awards often face lengthy delays before payment.
Injunctive Relief
Historically, patent owners who prevailed in infringement cases could almost automatically obtain permanent injunctions barring infringers from further use of patented technologies. That changed after the Supreme Court’s eBay v. MercExchange decision in 2006, which held that injunctions are not automatic but must be decided under traditional equity factors (irreparable harm, inadequacy of monetary damages, balance of hardships, public interest).
Post-Ebay, injunctions became harder to obtain, especially for patent owners not using their patents (NPEs) or in cases where money cannot compensate. Data confirms sharp declines in injunctions: from 80 permanent injunctions (excluding defaults) in 2008–2012 down to just 36 in 2018–2022—roughly a 55% drop.
Courts grant far fewer injunctions now, and only in clear cases where patent owners are practicing their patents and would suffer irreparable harm without a ban.
For example, in Apple v. Samsung, Apple obtained injunctions in 2012 against specific older Samsung models but not newer ones. After eBay, when Apple later sought injunctions on patents covering iPhone features, courts denied them, saying that royalties and consumers could compensate for Apple not necessarily buying Apple phones if Samsung features were removed (no irreparable harm).
In contrast, in Huawei v. ZTE in Germany (2015), Huawei obtained injunctions on standard-essential patents because ZTE refused to license them, and the German court found that monetary compensation wasn’t forthcoming. But even then, EU courts carefully consider whether implementers are willing to license—if so, they often avoid injunctions on SEPs under competition law.
Enhanced Damages for Willfulness
If infringement is found willful (infringers knew of patents and egregiously infringed anyway), courts may award up to triple damages as punishment (per 35 U.S.C. § 284).
The Supreme Court’s Halo v. Pulse (2016) ruling made it easier to obtain enhanced damages by removing the strict two-pronged Seagate test, thereby giving trial courts discretion to award more when the conduct is egregious. The “worst” infringers—copying competitors’ products knowing they’re patented, or continuing infringement after court orders—risk punitive damages.
In Stryker Corp. v. Zimmer (post-Halo), Stryker won treble damages on a $70M verdict for willful infringement of its patented surgical power tools, pushing the award to $210M, because internal emails showed Zimmer’s brazen copying.
However, not every willfulness finding yields treble damages; judges calibrate multipliers to the conduct at issue. According to the Marcum study, approximately 22% of cases with damages awards included enhancements for willfulness, and the average multiplier was approximately 2.3x—so full trebling is relatively rare.
Attorney Fees
Under 35 U.S.C. § 285, courts can make losing parties pay winners’ reasonable attorney fees in “exceptional cases.” The Supreme Court’s Octane Fitness (2014) decision relaxed the standard, allowing fee awards based on the totality of the circumstances—namely, when cases stand out for lack of merit or for the parties’ bad behavior.
This has helped accused infringers recover fees when they prevail in frivolous patent suits, and has helped patent owners recover fees when infringers litigate in bad faith. Fee awards remain relatively uncommon (still under 30% of cases that go to judgment, and often each side bears its own costs), but the threat of fees can deter truly baseless suits or defenses.
NPEs must be careful; if they bring very weak cases hoping for nuisance settlements, they could end up paying fees if defendants prove cases were meritless (see, e.g., Inventor Holdings, LLC v. Bed Bath & Beyond, where an NPE paid fees after its software patent was invalidated under Alice as clearly unpatentable).
Other Consequences
An adjudged infringer will typically face court orders to pay ongoing royalties if they want to continue using the patented technology (when injunctions are denied). After eBay, MercExchange ultimately licensed its e-commerce patent to eBay for a court-set royalty because no injunction was issued.
Patent judgments can also impact stock prices and reputations. Significant losses (such as $500M verdicts) can affect stock prices, though markets often factor in the possibility that appeals will reduce them. For technology companies, being labeled an infringer can also prompt them to strengthen internal compliance and patent review.
Globally, remedies differ: some countries (such as Germany) still readily issue injunctions for patent infringement (making it a feared venue), while others (such as China) have been increasing damages (which were previously low and are now multi-million-dollar awards). The U.S. remains a serious jurisdiction for damages, but injunctive relief is more constrained.
Criminal liability for patent infringement is generally nonexistent (patent infringement is civil, unlike copyright, which can have criminal penalties for piracy). However, willful infringement can intersect with other issues. If companies misrepresent to the Patent Office (inequitable conduct) or engage in anticompetitive patent-related conduct, they may face additional legal consequences, including potential antitrust enforcement.
How to Identify and Prevent Patent Violations
In high-stakes patent enforcement environments, companies should be proactive to avoid unintentional patent infringement or, at a minimum, minimize the risk and liability associated with such infringement. Effective management of patent and trademark rights is essential for preventing infringement and protecting intellectual property.
1. Conduct Freedom-to-Operate (FTO) Searches
Before launching new products or technologies, conduct thorough patent searches to determine whether any active patents read on your products. An FTO search (also called a clearance search) examines patents in target markets (e.g., the U.S., Europe, China) that cover similar functions or components.
Evaluating whether your innovations avoid both literal infringement and obviousness rejections requires experienced patent counsel with years of training in claim construction and USPTO examination standards. DIY searches and inexperienced attorneys lack the proper calibration to identify subtle obviousness issues that can derail patent applications.
A company developing new electrical control systems will retain patent attorneys to search for patents in power management, signal processing, and microcontroller implementations. If concerning patents are identified, companies can evaluate design-around strategies or pursue licenses.
These searches should be conducted early in the R&D process, when changes are still feasible. They’re often iterative as designs evolve, and new patents might become relevant. Documenting FTO analysis is also essential; if done correctly, it can show that any later infringement wasn’t willful (potentially avoiding enhanced damages).
2. Critical Timing Consideration: The Prototype Purchase Trap
Purchasing prototypes or manufacturing quotes can destroy patent rights through the ‘on sale’ bar under 35 U.S.C. § 102(a)(1). The one-year clock starts with a commercial OFFER or QUOTE, not actual purchase. This is particularly dangerous in semiconductor development (TSMC tape-outs), medical devices, and custom electrical systems with lengthy development cycles. You must file provisional applications BEFORE requesting any manufacturing quotes to preserve patent rights.
3. Monitor Competitors’ Patents
Monitor competitors’ patent publications and publications in your industry. Many companies establish patent watch services or use analytics platforms (such as PatentSight, Derwent, or the USPTO’s alerts) to monitor when competitors file new applications.
If competitors’ patent applications relevant to your products are pending, you might adjust course or file your own post-grant challenges after they issue. This monitoring can also inform business strategies: if competitors suddenly file many patents on AI algorithms for network security, that might indicate the direction they’re moving (and the patents you’ll need to navigate).
4. Patent Landscaping and White Space Analysis
Patent landscapes are broader overviews of patent filings in particular technology areas. By reviewing landscapes, companies can identify crowded areas (lots of patents covering similar features—high infringement risk zones) versus white space (areas with little patent coverage—potentially safer ground for innovation).
An electric vehicle startup might map battery management patents. They might find that incumbents heavily patent charging algorithms (so they might avoid those or partner with someone for rights). In contrast, new cooling techniques for battery packs have few patents (few opportunities to innovate and patent).
This strategic view helps prevent stumbling into heavily patented domains unwittingly.
5. Build a Defensive Patent Portfolio
One prevention method is securing strategic patent protection. While your patents don’t give you rights to infringe others (patents aren’t shields; they’re swords of their own), building a portfolio of high-quality, well-engineered patents can deter litigation. Remember: not all patents are created equal. Strategic patents that withstand scrutiny provide negotiating leverage, whereas weak patents serve as roadmaps for competitors.
This is because of counterclaim possibilities—if Company A sues Company B for patent infringement, B can look to its own patents and often find grounds to sue A (if they operate in similar spaces). This threat of mutually assured destruction usually brings parties to cross-license rather than litigate to the death.
Large technology companies such as IBM, Microsoft, and Samsung hold tens of thousands of patents, partly for this reason. Startups can’t amass that immediately, but focusing on key innovations and securing patents can give them leverage to negotiate if competitors or NPEs accuse them.
Not all patents are created equal. Weak patents don’t just fail to protect—they actively help competitors by providing roadmaps for designing around your technology more quickly and cheaply. Your missteps become blueprints for competitors to beat you. Strategic, well-engineered patents, in contrast, deter competitors and provide genuine marketplace leverage.
6. Product Design-Around and Clearance at Milestones
Integrate patent reviews into product development lifecycles. At each significant design milestone, have counsel review current designs against known pertinent patents. If problematic patents are identified, consider design-arounds—altering designs to avoid infringing patent claims.
If there’s a patent on specific methods of software user authentication, you can achieve similar results with alternative methods that don’t include patented steps.
A well-known example: when RIM (BlackBerry) faced NTP patents on wireless email, RIM developed software workarounds so that, if injunctions were granted, it could switch systems. (They settled before deploying it, but having that Plan B gave them negotiating leverage. If your company is facing similar challenges, consulting with an experienced patent attorney can provide essential guidance and protection.)
Always verify that design-arounds indeed escape patent claims—sometimes, slight tweaks still infringe under the doctrine of equivalents if they perform substantially the same function in the same way.
7. Obtain Legal Opinions for Risky Areas
If certain patents are identified as high-risk and you must proceed (maybe no feasible alternative design), consider obtaining formal opinions of counsel from experienced patent attorneys with deep technical expertise on non-infringement or invalidity. These opinions require sophisticated analysis of claim construction, prosecution history, and obviousness determinations—areas where experienced counsel provides critical value.
While not bulletproof, competent opinions can demonstrate that you acted in good faith and may prevent a finding of willfulness (and thus avoid enhanced damages). A chip maker might get outside counsel’s opinions that patents on circuits don’t actually cover their circuits (maybe due to different parameters or architecture). If later sued, they can show they reasonably believed they didn’t infringe.
In the past, failing to obtain opinions could be used against defendants (willful blindness), though that’s less so now that the law has changed. Still, having one is a prudent safeguard.
8. Negotiate Licenses or Pools
In some industries, broad patent licensing is the norm. If you’re entering such fields, it may be efficient to license needed patents up front rather than risk litigation.
New smartphone manufacturers often license standard-essential patents from standard-essential patent pools (such as the Avanci platform for cellular SEPs) to cover 3G/4G/5G patents and avoid lawsuits from Nokia or Ericsson. Universities and research institutions are often willing to license their patents on a non-exclusive basis for revenue. When considering patent licensing and protection, it’s essential to understand the true costs of obtaining a patent, as low-cost offers can be misleading.
If specific patents stand in your way, contacting owners to discuss licenses (or even buying patents) is an option—though it must be done carefully (showing eagerness can raise prices, and if negotiations fail, you might get sued). In some cases, companies do “business deals”—e.g., cross-licenses and supplier agreements, or co-development projects —that turn infringement risks into partnerships.
9. Train Engineers and Document Development
Ensure your R&D staff understands the basics of patent law. Often, engineers worry that looking at patents will taint them (some companies even had policies against engineers reading patents, out of fear of willfulness charges).
But in reality, being ignorant of patents doesn’t immunize you—it can actually increase risk because you might inadvertently copy something. It’s better to cultivate IP-aware cultures: engineers should know how to search patent literature for solutions (and thereby also know what to avoid).
Also, document your work—if you independently develop technology that later looks similar to someone’s patent, lab notebooks, or design files with dates can help prove you didn’t copy (though independent development isn’t a legal defense to infringement, it can influence willfulness and, practically, settlement negotiations or patent office challenges).
10. Use Patent Insurance or Risk Mitigation Contracts
Some companies purchase patent infringement insurance, which covers defense costs and, in some cases, damages for specific risks. It can be expensive, but for small companies in troll-prone industries, it’s worth exploring.
Also, when contracting with suppliers or OEMs, include indemnification clauses—if you’re sourcing components, suppliers should indemnify you against infringement claims arising from those components. Large platform providers (such as Amazon with AWS) often indemnify enterprise customers against infringement by providing technology, thereby shifting risk to the providers.
Be aware of limitations, though (some indemnities only cover certain jurisdictions or exclude willful acts).
11. Engage in Patent Office Proceedings
If you identify concerning patents early, you might proactively challenge them via ex parte reexamination in the U.S., IPR (inter partes review) after issuance, or opposition in Europe.
These procedures allow you to argue to patent offices that a patent is invalid (by presenting prior art). If successful, you weaken or eliminate patents and avoid infringement altogether.
Companies such as Apple and Google do this regularly against patents they believe might be used against them. For example, Apple filed IPRs against many VirnetX patent claims and succeeded in invalidating some, saving millions.
The Unified Patents organization and others file IPRs to proactively invalidate patents they consider problematic for members (they have done so in areas such as voice recognition and NPE-owned patents). These proceedings are far cheaper than litigation and can often resolve patent threats early.
By implementing these preventive measures, companies can significantly reduce the risk of patent infringement or, at least, mitigate its impact if it occurs. No strategy is foolproof—the patent system grants nearly 400,000 U.S. patents per year in recent years, and it’s impossible to guarantee you didn’t miss one—but diligence pays off.
The difference between being blindsided by patent lawsuits and being prepared can be millions in legal costs and business disruption. An ounce of prevention is worth a pound of cure, and nowhere is that more true than in managing patent risk.
Defending Against Patent Violation Claims
Despite their best efforts to prevent it, companies may still find themselves accused of patent infringement. In that event, strong defense strategies are vital.
1. Challenge Patent Validity
One of the most potent defenses is that patents should never have been granted. This can be done in court or through administrative proceedings, such as IPR.
Prior Art (Anticipation & Obviousness)
Scour for publications, patents, products, or public uses before patents’ priority dates that disclose claimed inventions (anticipation) or render them obvious. If found, assert invalidity under 35 U.S.C. §§ 102 or 103.
When Papst sued Garmin for a patent on digital camera interface standards, Garmin dug up user manuals and older standards that predated the patent, convincing the PTAB to invalidate the claims as obvious. In Cisco v. Centripetal, after a significant trial loss, Cisco sought to invalidate Centripetal’s network security patent through ex parte reexamination, relying on new prior art.
Identifying the most effective prior art combinations requires experienced patent counsel who understands USPTO examination standards and can anticipate how examiners will apply obviousness determinations. This expertise—developed through years of prosecution experience—is critical for successful validity challenges.
Given the high standard (clear and convincing evidence in court), presenting multiple strong prior art references is essential. Patent defendants often hire expert search firms or use crowdsourcing (like Article One Partners) to find non-patent literature that Patent Offices missed.
Lack of Enablement or Written Description
Particularly for broad or early-stage patents, it is argued that patent specifications don’t enable one to determine the full scope of the claims or demonstrate that the inventors actually possessed the claimed inventions.
Patent-Eligibility (Subject Matter)
Post-Alice/Mayo, defendants in software cases can move early (via a motion to dismiss or summary judgment) to argue that the patents are directed to unpatentable abstract ideas or natural laws. If courts agree, cases end regardless of infringement.
Many NPE software patent cases have been thrown out this way. A patent on generic data collection and analysis may be deemed abstract and invalid under § 101, as happened in Electric Power Group v. Alstom (Fed. Cir. 2016)—a favorite cite for defendants.
Procedural/Post-Grant Avenues
Filing IPRs at the PTAB can yield stays of court cases and, if instituted, a statistically significant chance of invalidating some or all claims (especially effective against NPEs who can’t amend easily and for whom patents are their only assets).
Even if not fully invalidated, the PTAB may narrow claims or create prosecution history that aids non-infringement defenses. Also consider foreign oppositions if patents are being asserted internationally—maybe you can knock them out in Europe or Japan, even if U.S. courts uphold them.
2. Claim Construction (Non-Infringement)
Patent claims are often ambiguous or broad. Defendants try to construe (interpret) key terms in narrow ways that avoid covering accused products.
Markman hearings (in which judges determine claim meaning) can be dispositive of a case. If a claim requires a “connection” and defendants argue that this means a direct physical connection, but their products use wireless links, they seek to avoid infringement by construction.
Or define terms by what’s described in patent specs. In Phillips v. AWH (Fed. Cir. 2005), the court held claims should be read in light of specifications, not overly broad dictionary meanings. So, defendants comb patents for definitions or disclaimers that limit scope.
If successful, you can get summary judgment of no infringement because, properly read, claims don’t cover products.
A classic example: Toro v. White Consolidated (Fed. Cir. 1995)—Toro’s patent on lawn mower catch bags said “attached to the frame” and the accused used “attachment channels”; the court construed “attached” narrowly (direct attachment), so no infringement.
The flip side is avoiding the doctrine of equivalents: even if you don’t literally infringe, patentees may argue that you do. But if your claim construction is tight or if differences are substantial (e.g., different principles of operation), you can defeat equivalents.
3. No Infringement (Facts)
Sometimes, it’s straightforward—accused products simply lack one element of claims. A claim requires “three valves,” and your device has only two—that’s a non-infringement argument.
This underscores why strategic claim drafting during patent prosecution matters: experienced patent attorneys draft claims that are both broad enough to provide meaningful protection and specific enough to withstand validity challenges, making non-infringement arguments harder for accused infringers to sustain.
Expert analysis, schematics, and source code reviews can substantiate these factual differences. If it is clear, raise it early to get summary judgment.
In Microsoft v. AT&T (2007), AT&T had a patent on speech codecs; Microsoft argued that Windows software did not infringe within the U.S. (and copies sent abroad weren’t “supplied” from the U.S. under patent law)—essentially a non-infringement argument on legal technicality, which the Supreme Court upheld, saving Microsoft potentially massive liability.
4. Exhaustion and Licensing Defenses
Assert that plaintiffs’ rights are exhausted or that you have implied licenses. If you bought components from licensed suppliers, patent owners can’t double-dip and sue you for using them.
This was the defense in Intel v. ULSI (Fed. Cir. 1993)—Intel had licensed tech to HP, and HP made chips that ULSI used. Intel’s attempt to sue ULSI failed due to exhaustion from HP’s licensed sale.
More recently, Impression Products v. Lexmark (Supreme Court 2017) held that any authorized sale (domestic or abroad) exhausts U.S. patent rights in that item, shutting down Lexmark’s theory of suing third-party refurbers of foreign-sold cartridges.
So if patentees sue you over products you purchased from someone, check supply chains—if that upstream sale was authorized, you’re likely off the hook.
5. Equitable Defenses
Consider laches (delay in bringing suit) or estoppel, if applicable. The Supreme Court curtailed the use of laches as a defense in patent cases (SCA Hygiene v. First Quality, 2017), holding that you can’t bar damages within the 6-year statutory period merely because of delay.
But equitable estoppel can bar suits if the patentees’ misleading conduct led the defendants to reasonably infer that the patents wouldn’t be enforced and that they would rely on them to their detriment. If patent owners tell you “we won’t sue” or remain silent after you explicitly request licenses, and years pass with you investing in production, courts might estop them from asserting later.
This is rare but was successfully applied in Hewlett-Packard v. Acceleron (Fed. Cir. 2010), where the patentees’ silence during negotiations triggered estoppel.
Also, unclean hands or inequitable conduct by patentees (e.g., hiding material information or lying to the Patent Office) can render patents unenforceable in their entirety. Unenforceability is powerful because it knocks out patents regardless of validity or infringement. Proving inequitable conduct is difficult (it requires intent to deceive and materiality), but there have been cases.
6. Settlement and Business Solutions
A pragmatic defense is to find business resolutions. If litigation costs exceed license costs, or the risk of an injunction is too high, settlement may be advisable.
Over 95% of patent cases settle before trial. Early case assessment helps decide if you fight or settle. Sometimes, non-monetary cross-licenses can resolve the issue if both parties have patents. Other times, you might redesign mid-case and moot the threat of an injunction.
In some FRAND cases, submitting to arbitration or rate-setting courts can expedite outcomes. Also, consider whether indemnitors (suppliers) will step in to defend you—tender defense to them if contractually obligated.
7. Declaratory Judgment (DJ) Actions
If you suspect patentees are gearing up to sue or have threatened your customers, you can file DJ actions in preferred forums to declare you don’t infringe or that the patents are invalid.
This allows you to assert procedural posture (and venue). When patent owners send cease-and-desist letters from, say, California to companies in New York, the New York company can file DJIs in New York to preempt being sued in California.
This is commonly done to avoid plaintiff-friendly venues such as the Eastern District of Texas—potential infringers file DJ cases in their home districts or in neutral ones. However, patent owners can sometimes defeat DJs by failing to make explicit threats (courts need “actual controversies”). Still, it’s an important tool to consider if negotiations sour or threats loom.
The Strategic Reality of Patent Enforcement
The evolution of patent-violation cases reveals a legal landscape that’s more nuanced than headlines suggest. While Apple v. Samsung’s billion-dollar verdict and Oracle’s $9 billion demand grabbed attention, the actual outcomes—$539 million after six years and $0 after eleven years, respectively—tell a different story about modern patent enforcement.
Three critical trends emerge from 170 years of patent disputes:
1. Litigation Volume Is Declining, But Stakes Remain High for Critical Patents
U.S. patent lawsuits dropped 44% from 6,497 cases in 2013 to 3,639 in 2022. Yet technology companies continue fighting global wars over standard-essential patents and critical innovations.
The system isn’t overwhelmed—it’s strategic. Companies pursue infringement claims when patents cover genuinely valuable innovations rather than routine features.
2. Injunctions Are Rare, Damages Are Realistic
Permanent injunctions dropped 55% from 2008-2012 to 2018-2022, from 80 to 36 annually (excluding defaults). Courts apply eBay’s four-factor test rigorously, granting injunctions primarily when patent owners have engaged in patent misuse and can demonstrate irreparable harm.
Meanwhile, the median damages award is $3.7 million—substantial for small companies but manageable for most businesses operating in patent-intensive industries. Only exceptional cases involving major products, willful copying, or market-disrupting technologies generate nine-figure verdicts.
3. Validity Challenges Have Become Powerful Defensive Weapons
Navigating these validity challenges is especially critical in areas such as software, where legal uncertainty has increased following major court decisions. For more information on patenting software and how to handle these legal hurdles, visit Can Software Be Patented?.
Post-Alice software patent invalidations, IPR proceedings at the Patent Office, and aggressive prior art searching have fundamentally changed defense dynamics. VirnetX won a $502 million verdict against Apple in 2020; by 2023, the Federal Circuit had invalidated key patents, undercutting that judgment.
Companies now routinely challenge patent validity through parallel USPTO proceedings, often successfully invalidating claims that survived initial examination. This creates uncertainty for patent owners and settlement pressure on both sides.
These trends create urgency for innovators: under the United States’ first-to-file patent system, competitors are filing applications on similar technologies. Hesitation costs market position, licensing leverage, and competitive advantage.
For Businesses Operating in Patent-Intensive Markets
The lessons are clear: invest in robust freedom-to-operate analysis early in product development. Build defensive patent portfolios that provide cross-licensing leverage. When accused of infringement, immediately assess validity challenges—many patents that seem threatening don’t withstand rigorous prior art analysis.
Most importantly, recognize that patent disputes rarely end in winner-take-all outcomes. Even Apple and Samsung, after six years of scorched-earth litigation, settled for a fraction of their initial demands. The parties who fare best are those who understand when to litigate (e.g., when patents are truly invalid or non-infringement is clear) and when to negotiate (e.g., when portfolios overlap and both sides need licenses).
Patent law continues to evolve to balance incentives for innovation with competitive fairness. The famous battles examined here serve as guideposts for navigating this landscape—not by avoiding patents entirely, but by respecting legitimate intellectual property while vigorously challenging overreach.
Your Next Steps to Patent Protection Success
Understanding patent violation examples from Apple v. Samsung to VirnetX v. Apple reveals a critical truth: the difference between companies that thrive despite infringement threats and those that pay hundreds of millions in damages comes down to one factor—proactive patent strategy executed by experienced legal counsel.
The Bottom Line:
Weak patents don’t just fail to protect your innovations—they actively help competitors by providing blueprints for designing around your technology faster and cheaper. Strong patents, engineered through experienced patent prosecution with proprietary Litigation Quality Patent® services, deter competitors, create licensing leverage, and withstand the rigorous validity challenges that now define patent litigation. DIY inventors and novice attorneys cannot replicate the sophisticated claim drafting, prior art strategy, and prosecution methodology required to build patents that actually protect your market position.
The Business Consequences:
Every day without strategic patent protection means lost revenue, diminished market share, and loss of control over how your innovations get monetized. While you hesitate, competitors are filing applications for similar technologies under the United States’ first-to-file system. The first filer obtains the patent—and the marketplace leverage that comes with it. Waiting costs far more than the investment in proper patent protection.
Take These Immediate Actions:
- Schedule a Free Patent Needs Assessment to evaluate your innovations’ patentability, identify infringement risks in your current products, and develop a strategic protection plan that aligns with your business goals.
- Conduct freedom-to-operate searches on your current products and planned launches to identify potential infringement exposure before you face cease-and-desist letters or lawsuits.
- Build a strategically focused patent portfolio that protects your core innovations and competitive differentiators, and leverage cross-licensing to offset potential patent assertions by competitors.
- Coordinate R&D spending with patent protection strategy to maximize both tax benefits and IP value—Thompson Patent Law partners with specialists to help clients leverage enhanced R&D tax credits while building strategic patent portfolios.
- Document your R&D processes thoroughly with dated lab notebooks and design files that can demonstrate independent development and reduce the likelihood of willful findings if you face infringement accusations.
- Engage qualified patent counsel with Fortune 500 experience, such as Thompson Patent Law (1,500+ patents issued, 94% allowance rate), to develop comprehensive IP strategies that protect your innovations while respecting others’ legitimate intellectual property rights.
Looking Forward:
The patent landscape for electrical systems, software innovations, medical devices, and mechanical inventions continues to evolve—but the fundamental principle remains constant: strategic, well-engineered patents create competitive advantages, while weak patents create roadmaps for competitors. Proper patent protection isn’t an expense; it’s an investment in your company’s ability to control your innovations and extract maximum value from your R&D spending.
Quality Matters More Than Invention:
Your invention might be brilliant, but without experienced legal counsel who engineers patents that withstand scrutiny, you’re building on sand. Thompson Patent Law’s track record of 1,500+ issued patents, a 94% allowance rate, and proprietary techniques that increase Alice eligibility success by 25-50% demonstrate what professional patent prosecution achieves—patents that actually protect your marketplace position.
Thompson Patent Law’s proprietary techniques increase Alice eligibility success by 25-50% and can spare clients 1-2 years and thousands of dollars in prosecution costs by achieving allowances on first- or second-office actions rather than through prolonged prosecution battles.
Don’t Let Competitors Use Your Innovations as Roadmaps:
Every patent violation example in this article began with one company developing technology while another’s weak or nonexistent patent protection allowed infringement to flourish. Strategic, well-engineered Litigation Quality Patent® services prevent your innovations from becoming blueprints for competitors who will beat you faster and cheaper by learning from your missteps.
