Importance of Being First to File
The most important reason you
want to be the first to file for patent infringement
is that as soon as the offending party gets wind
that you are planning to sue for patent
infringement, he will likely first sue you in his
home district to gain a tactical advantage. His suit
will request a declaratory judgment that your
patents are invalid or not infringed on or both.
Although you could then respond
by filing a suit, it's the federal courts that hear
all patent cases and they have historically followed
a general policy of allowing only the first suit
filed to go forward. Thus, even if you file your own
infringement suit as early as the day after your
competitor filed his suit, your action will be
stayed because his was the first filed. The
infringer may then have the tactical advantage of
having picked the location, court house and judge
that they and their attorneys believe will give them
the best shot at winning. In short, they will have
the home town advantage which in the practice of law
is often significant.
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