Brian Brunsvold
John C. Paul

Accused infringers no longer need to show a reasonable apprehension of being sued before filing A lawsuit to challenge the validity of a patent.

Until recently, patent owners generally could identify products they believed were infringing their patents during negotiations with an accused infringer without fear of being sued by the accused infringer. This allowed patent owners to put an accused infringer on notice of the potential infringement without immediately subjecting themselves to possible litigation. If, however, the words or actions of the patent owners caused the accused infringer to have “a reasonable apprehension of being sued,” then the accused infringer could bring a suit to challenge the validity and enforceability of the patent. This allowed an accused infringer to initiate a legal action when a patent owner was keeping a cloud over the accused infringer’s business with threats of infringement suits.