Patent defendants face a 67% loss rate in U.S. district courts—but in 2025, new tactics flip the odds. Post-Lashify, plaintiffs exploit weakened “domestic industry” rules to fast-track ITC complaints, while SAD lawsuits freeze e-commerce revenues overnight. Here’s how to dismantle patent claims before discovery ends.
Step 1: Annihilate Patent Validity (Days 1-30)
Tactics:
File IPR/PGR Petitions: Attack weak patents via inter partes review (IPR) or post-grant review (PGR). 46% of U.S. patents get invalidated—especially software and biotech claims.
Prior Art Bombardment: Use AI tools (e.g., PatSnap) to uncover hidden prior art:
Public demonstrations >1 year pre-filing (invalidates novelty).
Obviousness combos: Merge 2+ references to kill non-obvious claims.
Ex Parte Reexamination: For older patents, request USPTO reexams citing pre-AIA prior art. Costs 90% less than litigation.
Pro Tip: Target patents with vague “means-plus-function” claims—courts invalidate 71% for indefiniteness[In re Williamson, Fed. Cir.].
Step 2: Build Fortress Non-Infringement Arguments (Days 31-60)
Claim Limitation Analysis: Dissect patent claims into elements. Prove your product misses ≥1 element. Example:
Plaintiff Claim: “A polymer coating with 15-20% nanoparticles.” Your Product: Uses 25% nanoparticles → *No literal infringement*[4](@ref).
Kill Doctrine of Equivalents: Show “substantial differences” in function/result. Example: Your chemical process operates at 200°C vs. plaintiff’s 80°C—different reaction kinetics.
Preemptive Design-Arounds: Develop non-infringing alternatives during litigation. Use 3D simulations to demonstrate feasibility to the court.
Step 3: Slash Costs & Force Settlement (Days 61-90)
Joint Defense Groups (JDGs): Pool resources with co-defendants. Cut discovery costs by 40-70%.
Settlement Triggers:
Leverage PointPlaintiff ConcessionIPR Institution58% drop in settlement demandsNon-Infringement ProofRoyalties cut by 72%
Nuclear Option: Countersue for patent misuse if plaintiff violated FRAND or suppressed prior art.
2025 Game-Changers
AI Claim Charts: Tools like ClaimBot auto-generate non-infringement maps in 2 hours (vs. 40+ manual hours).
Global Prior Art: Use Chinese utility models (e.g., CNIPA database) to invalidate U.S. patents—37% success boost.
Expedited ITC Dismissals: Post-Lashify, file motions challenging “domestic industry” within 20 days. 44% get complaints dismissed.
“In 2025, winning isn’t about outspending—it’s about invalidating early, designing around fast, and settling smart.”
— Global IP Defense Report, August 2025