Code & Conduit Podcast: Tech Steps-up Teardowns in Patent Fights


Teardown

When patent infringement claims get tough, inventors turn to teardowns.

Federal courts have increased the evidence needed to file a patent infringement case in recent years. That has led inventors to increasingly disassemble physical bits of their competitors’ products or software code—literally tearing products apart—to see if others’ technology is infringing on their patents, Malathi Nayak, Bloomberg Law intellectual property reporter said.

“Now when you bring your case to the court, at the outset you need to come with all this ammunition,” Nayak said in a recent episode of Code & Conduit. 

Data from teardowns has been used by plaintiffs in 140 patent infringement lawsuits in U.S. district courts since 2004, with the vast majority of those cases coming in the last five years alone, Bloomberg Law data show. 

The bump in numbers comes in part from shifts in court rules and rulings. Some jurisdictions, like the Northern District of California, have changed their patent rules to require more details when plaintiffs file infringement allegations, Nayak said. Two U.S. Supreme Court rulings also raised the bar for earlier, more detailed evidence by requiring that patent infringement complaints establish a ‘plausible’ claim.  

Still, plaintiffs have plenty of reasons to conduct teardowns even without the shift in rules. Scrutinizing a competitor’s product can help a patent owner decide whether to file a case against an alleged infringer, push back to keep a case from getting dismissed, or formulate how much to ask for in damages, Nayak said.

“You want to go there with enough evidence or enough reason to believe that you have a strong case, just as you’re getting into a big patent fight,” Nayak said.

Defendants have also boosted their use of the procedure. Tearing down a plaintiff’s product can help a defendant invalidate their rival’s patent by showing it shouldn’t have been granted in the first place because, for example, it copies prior technology.