Although patent infringement cases are trending more towards sanctioning frivolous complaints, these remedies typically are only available after discovery on the merits or, in some instances, an enlarged scope of satellite litigation. If a responsive pleading to the complaint does not lodge a counterclaim for declaratory relief on at least the issue of invalidity, sufficient evidentiary bases for such sanctions may be lacking.
A frequent issue facing many software, pharmaceutical, and biotechnology companies are circumstances under which a product produced pursuant to the claims of a product-by-process patent is “on sale” under 35 U.S.C. § 102(b). This is important because, if “on sale” more than one year before the filing of an application for a patent on the governing claims, any issued patent is invalid and the right to exclude others from making, using, and selling the resulting product is lost.