Creating prior art is the cheapest way of invalidating future patents. This can of course be accomplished by own intellectual property rights which are to be published 18 months after filing. According to European patent practice also postpublished rights are relevant regarding novelty under certain conditions. Your patent attorney can provide you with a certified copy of published art to be used as evidence before courts.
Prior art searches / validity opinions
One way to demonstrate non-infringment is the revocation of the patent either by opposition proceedings or later on before the national courts, for instance the German Federal Patent Court. For doing so prior art searches are to be performed either by a patent attorney or in cooperation with a patent attorney. Once nullity proceedings are launched a settlement may be reached which allows the propriator to maintain the patent and the alleged infringer to obtain a licence.
File preliminary arguments
Once an alleged infringement becomes known to your business one can deposit a protective writing to the competent courts. Herein, the rights in question are identified and arguments are provided in advance of respective proceddings. Possible arguments include the scope of protection, lack of urgency of the request, lack of of patentability/ invalidity of the patent as such or right of prior use. This may prevent a provisional injunction.
Whether or not a property right has been infringed may be assest by means of infringement opinions. This is the typical case which is like in the U.S. accomplished by drafting claim charts and analysis of claims features. According to European patent practice some special jursidiction applies leading to differences from the U.S. proceedings. Infringement issues are discussed before national courts. We will update this site once the European Patent Court UPC is implemented.
Before launching products there is the obligation to observe the market. Hence, to prevent your firm from damages a respective search should be performed in the light of product features. Often it is possible to obtain a license or rather amend the product to be launched. Patent trolls are typically known regarding the technical field and respective portfolios can a priori be analyzed. In the end such a procedure is often more cost efficient than infringement proceedings in Europe, for instance Germany.
In any case, you should seek for legal advice offered by a patent attorney specialized in your technical field. This page is not a substitute for legal advice in individual cases.