AFTER MONTHS or years of litigating a particular patent infringement claim, the patentee’s counsel typically has a firm grasp of the patented technology, a complete command of the claims, specification and prosecution history and a thorough understanding of the accused product. When first asked to bring the case, though, the patentee’s counsel may well have had to grapple with unfamiliar technology, a seemingly indecipherable patent and prosecution history, and a largely unknown, supposedly infringing product. In those not uncommon circumstances, the patent litigator is likely to have difficulty deciding whether there is adequate basis for filing suit. The Federal Circuit’s Jan. 7, 2002, decision in Antonious v. Spalding & Evenflo Cos., 275 F.3d 1066, provides useful guidance with respect to the extent of the inquiry that Fed. R. Civ. P. 11 requires of a patentee’s counsel before asserting a claim for patent infringement and is reason to revisit the reissue.
Fed. R. Civ. P. 11(b) provides in pertinent part that
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