SETTLEMENT OF A PATENT
in response to
by
Message: Perhaps a 5% chance of Settlement on May 1
SETTLEMENT OF A PATENT
INFRIINGEMENT CASE BEFORE TRIIAL
DOES NOT NECESSARIILY AVOIID
APPLIICATIION OF AN ADVERSE
MARKMAN RULIING IIN SUBSEQUENT
LIITIIGATIION
Many patent infringement cases settle after a
Markman hearing that results in the claims of thepatent-in-suit being construed adversely to one party’s
position. Aside from the cost and risk involved in
litigating the infringement and validity issues, a
substantial motivation for settlement is the patentee’s
often incorrect belief that by settling the case before any
adverse final judgment on the merits, the patentee can
avoid being bound by the adverse claim construction in
future litigation. However, significant authority exists
to support the conclusion that the patentee is bound by
the adverse claim construction after a Markman
hearing, even if the case settles before a final judgment
on the merits of the infringement claim.
The purpose of this Alert is twofold: (a) to discussthe evolution of the case law supporting the finality of
Markman rulings and (b) to suggest possible steps totake to avoid the ramifications of an adverse Markmanruling in subsequent litigation without sacrificing a
potentially beneficial settlement.
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