Because of the subtleties in technology and related legal considerations, upstream and downstream U.S. energy patents should be drafted in a clear, strategic manner despite the fact that they fall into what can be called “unpredictable art.” An energy patent should not be drafted merely from the perspective of obtaining a patent; the best are drafted with an eye toward litigation, recognizing all of the potential challenges the patent will face.
So, how does counsel draft a client’s energy patent to win in subsequent litigation? By obtaining a well-drafted patent application with claims that are broad, enforceable and able to withstand challenges, especially given the new statutory scheme enacted by Congress in the America Invents Act.
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