Challenging a Plaintiff's Right to Sue for Patent Infringement: The Affirmative Defense of Standing

摘要

The affirmative defense of standing can be a powerful weapon for a defendant to yield in a patent infringement action. With the proliferation of intellectual property (IP) holding companies, mergers and acquisitions, and complex licensing arrangements, it is not always clear whether the plaintiff is the proper party to bring a patent infringement action. The plaintiff may lack the requisite property rights in the patents-in-suit to satisfy the constitutional and prudential requirements of standing. The defense of standing, if successful, can cause a court to dismiss the plaintiff's case. This article provides a practical approach to exploring whether a standing defect exists, and if so, how to successfully assert the defense.