From time to time, large corporations get together to discuss topics of mutual interest, such as creative accounting, the creation of worthless securities, sending jobs to low-wage foreign countries, circumventing the anti-trust laws, and defeating righteous claims of patent infringement. It is this last topic that we shall briefly address here.

An increasingly common tactic among those accused of patent infringement is to seek re-examination of the subject patent or patents. This may occur even while litigation is proceeding in a district court, leading to the possibility that a jury finds the patent valid and infringed while the Patent Office, shortly thereafter, finds the same patent invalid. What happens then? (Flexiteek Americas, Inc. et al. v. Plasteak, Inc. et al.)

Patent litigation is costly and the price is not likely to decrease. Given this state of affairs, one might ask whether there is some way to limit or reduce the costs of enforcing a patent against infringers or – we shudder to think of it – defending against a charge of patent infringement. The answer to both parts of this question is YES and, more interestingly, in both cases the answer involves the use of patent reexamination.