Building or Defeating a Patent Infringement Case: A Practitioner's Guide to Claim Charts, Equivalents, and Indirect Liability
By Casey Scott McKay ·
An infringement case is an element-by-element proof exercise, and it is won by the party with better technical evidence on the contested element. This guide runs the work in seventeen stages from both chairs: identify the weakest element first, build the evidence plan, chart against the construction rather than the words, work source code and testing, plead equivalents only after reading the file wrapper, test every method claim for divided performance, and run the marking and exhaustion analyses that can eliminate years of damages. It covers contentions and why they bind, the sequencing of documents before experts, the protective order mechanics of code review, and the summary judgment posture the all-elements rule creates. Worked chart language runs throughout. The companion article supplies the doctrine and the companion checklist the box-by-box form.
IP and Technology > Patent Litigation | Guide | Published 11 November 2024 - Updated 27 April 2025 | Casey Scott McKay - marksy.us
Summary. An infringement case is an element-by-element proof exercise, and it is won by the party with better technical evidence on the contested element. This guide runs the work in seventeen stages from both chairs: identify the weakest element first, build the evidence plan, chart against the construction rather than the words, work source code and testing, plead equivalents only after reading the file wrapper, test every method claim for divided performance, and run the marking and exhaustion analyses that can eliminate years of damages. It covers contentions and why they bind, the sequencing of documents before experts, the protective order mechanics of code review, and the summary judgment posture the all-elements rule creates. Worked chart language runs throughout. The companion article supplies the doctrine and the companion checklist the box-by-box form.
Keywords: claim chart, infringement contentions, source code review, product testing, doctrine of equivalents, prosecution history estoppel, induced infringement, contributory infringement, divided infringement, expert report, protective order, marking analysis, exhaustion, implied license, summary judgment, technical discovery, accused product, evidence strategy, non-infringement, patent litigation
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