Infringement of the United States Patent Right: A Guide for Executives and Attorneys

By Richard T. Holzmann | Go to book overview

7
CONDUCT OF PATENT LITIGATION: JURISDICTION AND PROCEDURE

Patent rights may be enforced through negotiation, mediation, and through arbitration [in 1983 an amendment to the Patent Act ( 35 USC 294) dealing with arbitration of patent disputes went into effect]. These procedures depend either on the consent of the parties or of an arbitrator. In the absence of such consent, the primary procedure for enforcing patent rights and resolving other patent disputes is through litigation in the courts.

Three basic requirements govern whether a patent suit is filed in a proper court: (1) subject matter jurisdiction, (2) venue, and (3) jurisdiction over the person.


28 USC 1338: JURISDICTION

Federal courts are courts of limited subject matter jurisdiction. Thus, the party filing the suit must affirmatively show a statutory basis for the court's jurisdiction over the controversy. By statute ( 28 USC 1338), the federal courts have exclusive jurisdiction over all suits arising under any Act of Congress relating to patents. However, the courts distinguish between patent cases and patent questions. An example is a suit for breach of a patent license in which the validity of the underlying patent is raised as a defense. Such suits may be filed in a state court of general jurisdiction. They may be filed in a federal court only if some other basis for jurisdiction can be found, such as diversity of citizenship.

A separate jurisdictional requirement is that there be an actual ripe controversy between the parties. The "actual controversy" requirement

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Infringement of the United States Patent Right: A Guide for Executives and Attorneys
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface ix
  • 1- Types of Litigation in General 1
  • 2- The Patent Right: What It Does and Does Not Confer 11
  • 3- Acts Constituting Infringement 17
  • 4- Factors Determining Infringement 67
  • Introduction 67
  • 5- Defenses 137
  • 6- Remedies 161
  • 7- Conduct of Patent Litigation: Jurisdiction And Procedure 199
  • Epilogue 223
  • Selected Bibliography 227
  • Table of Cases 229
  • Index 233
  • About the Author 237
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