The upsides and downfalls of patent cease and desist letters

Cease and desist letters put infringers on notice, but also can result in an action for a declaratory judgment of non-infringement

Once an applicant has obtained a patent and has identified possible infringers in the marketplace, the question becomes what to do next. One of the most obvious steps is to contact the infringer by letter.

Such a letter can have a number of positive effects for the patent owner. The letter can put the infringer on notice of the infringement. This can be of benefit in proving willful infringement and associated damages at trial. Such a letter may encourage the infringer to simply cease the infringing activity and eliminate the improper competition in the marketplace. A letter may also initiate licensing negotiations. If a license is negotiated, the patent owner can benefit from a royalty stream from the infringer.

Contributing Author

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Craig Metcalf

Craig Metcalf is a Shareholder with Kirton McConkie. His practice emphasizes intellectual property and appeals as well as mediation and arbitration. He can be reached...

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