When faced with allegations of patent infringement, an accused infringer may raise various defenses recognized by the Patent Laws, 35 U.S.C. § 282. First, an accused infringer may raise non-infringement as a defense – arguing that the accused product does not meet the language of the patent claim(s) at issue. Patent invalidity is another defense recognized by the Patent Laws - that the patent does not meet the statutory criteria for patentability set out in 35 U.S.C. §101 et seq. Patent unenforceability may be a further defense in a patent suit – that the patent is not enforceable due to equitable reasons, such as inequitable conduct during prosecution of the patent. Defenses in patent cases are fact specific, depending upon the particular patent-in-suit, accused device, pre-suit actions of the patent holder and pre-suit interactions between the parties. Other defenses or counterclaims sometimes raised in patent infringement litigation may include patent misuse, unclean hands, estoppel, laches, Walker Process antitrust claim, or procedural defenses based upon the pleadings.
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