Questions You Wish an IP Litigator Had Asked During the IP Due Diligence Process

To what extent can the Target substantiate that its own products practice the patented inventions?

• “Commercial success” may now be of increased importance in combating an obviousness challenge to the validity of the Target’s patents.
  • KSR Int’l Co. v.Teleflex (U.S. 2007)
• It’s easier to establish the “irreparable harm” required for obtaining injunctive relief where the Target is in head-to-head competition with its rivals.
  • eBay Inc. v. MercExchange, L.L.C. (U.S. 2006)
• One potential drawback: the Target’s failure to meet its resulting patent marking obligations can serve to preclude pre-suit damages.

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