Can You Represent Yourself in a Patent Infringement Lawsuit?

– Bradford T. Laney, Texas Patent Litigation Attorney

You Can but You Shouldn’t

The short answer is: yes.  In the United States, every individual generally has a right to proceed forward with a lawsuit “pro se,” which means you are representing yourself (pro se is Latin for “for oneself”).

The better answer is: why would you want to?  Patent cases are among the most complex types of cases on the market.  You’ll need to file your case in a Texas federal district court.  There are many pitfalls in a patent case that you will fall into if you do not hire a competent patent lawyer.  I hate to use the extreme “always,” but I firmly believe you are almost always going to be better off hiring a patent lawyer instead of trying to prosecute one of these cases on your own.  Consider hiring a patent lawyer on a contingent fee basis, which means you will not have to pay anything out-of-pocket.  You’ll only have to give your attorney a percentage if you win.

Potential Pitfalls:

If you decide to go forward on your own, below is a brief discussion of a few pitfalls, which you’ll need to be prepared to address. 

1. Pleadings:  Your patent infringement complaint will have to satisfy certain notice requirements to not be dismissed outright pursuant to Federal Rule of Civil Procedure 12(b)(6).  The Federal Rules used to have an example patent infringement complaint you could go by, but this was abolished in 2015 making this issue a sticky one.   The general rule is that you need to give the Defendant “fair notice” of your claim so keep this in mind when putting together your complaint.  You’ll also need to sue in the right venue, which is governed by 28 U.S.C. § 1400(b).  You can either sue in the state your Defendant is incorporated or you can sue where it has a regular and established place of business and has committed acts of patent infringement.
2. Local Patent Rules:            The Eastern and Southern Districts of Texas have Local Patent Rules, which must be followed to the letter.  Both sets of these rules require you to put together infringement contentions early in the case so you’ll need to be prepared to create a detailed chart showing how the Defendant infringes your patent.  You’ll also want to download the rules and read them carefully before you file your lawsuit so you can make sure you’re able to satisfy all the requirements of these Rules.
3. Claim Construction:  You’ll really need to be prepared to do your legal research to prevail in this phase of the case.  This phase of the case involves both sides arguing over the meaning of the patent claims (the numbered paragraphs at the end of your patent).  There are many laws governing claim construction, which have been handed down by the Federal Circuit Court of Appeals over the past few decades (the Court was started in 1982). Your patent lawyer will know these laws by heart, but you’ll need to dedicate significant time to learning these laws on your own.  A good legal opinion to get you started is:  Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005).  Remember, there are Local Patent Rules usually in place so you’ll want to keep up with all the claim construction deadlines required by these rules and make sure you are positioning yourself in the best place (legally and factually) to win your argument.
4. Experts:        Experts can be an important part of a patent case.  You may need to hire an infringement and damage expert.  Proving infringement has certain legal requirements.  Generally, you need to be able to prove that your Defendant practices each and every element of your asserted patent claims.  In regards to damages, there are lots of articles out there on how to calculate lost profits or a reasonable royalty in a patent infringement case. You’ll have to pick one of these models depending on the particular facts of your case.  You’ll likely need someone to perform this analysis for you.  You’ll need to meet with your experts to help them prepare expert reports, which comply with Federal Rule of Civil Procedure 26 and any applicable local rules of the Court.  Your reports need to be timely disclosed.
5. Summary Judgment:         You’ll need to be prepared to file and defend yourself against summary judgment.  A summary judgment is when someone is trying to get the Court to rule in their favor on a particular issue.  This will involve an understanding of the law and an understanding of how the law applies to the particular facts of your case.   You’ll want to put together a very detailed brief on why the other side should lose their summary judgment, and you’re going to want to have evidence to support your arguments.
6. Jury Trial:    If you’ve made it this far on your own, you deserve to congratulate yourself.  But don’t stay out too late.  For the jury trial, you’ll have another list of rules and disclosure requirements that you’ll need to make sure you follow and satisfy.  You’ll also need to prepare for voir dire, opening statement, the presentation of your witnesses, and closing statement.  There is an art to each of these, which only experience can teach.  If this is your first time, you’ll want to find a good book written by an experienced lawyer, which gives his or her advice about what they’ve learned through their own trials.  At trial, you’ll want to be prepared to speak quickly and think on your feet.

Conclusion – Hire a Lawyer:

In conclusion, while you can definitely represent yourself in a patent infringement lawsuit, I would never recommend it.  My guess is the reason you’re reading this article in the first place is because you do not want to pay out-of-pocket for your case.  If you don’t want to pay an hourly fee for your attorney, I recommend finding an attorney that is willing to take your patent case on a contingency fee basis.  Contingency fee agreements can be structured a number of ways.  The most common way is that your lawyer will take home a percentage of your winnings and eat the costs in the event of a loss.  You should definitely consider trying to proceed forward on a contingent fee basis, before you jump into the deep and shark filled waters of patent litigation.

Brad is a licensed patent attorney, who has successfully litigated patent claims in every federal district in Texas (and many other states across the country). If you need help figuring out if you have a claim or defending against someone that has sued you, please do not hesitate to give Brad a call or email (713-297-1200, blaney@raleybowick.com).