I. Available Reliefs

Only Russian patents, which are granted by the Russian Patent Office (RU PTO) under the national procedure or PCT-application process, and Eurasian patents, which are granted by the Eurasian Patent Office (EAPO), are enforceable, and, therefore, subject to litigation in Russia. Foreign patents as well as patents pending cannot be litigated, although pending patents are granted a provisional (interim) protection.

Patent infringement may be established through civil, administrative and/or criminal proceedings (actions). Civil proceedings and litigation remain the most efficient option for patent enforcement in Russia.

In the course of a civil action, it is possible to claim both injunctive and monetary reliefs. Monetary relief may lead to a compensation in the amount of up to 5,000,000 Russian Ruble (RUB), or double the cost of the patent license (royalties are calculated on the basis of market situation), if applicable. Seizure and destruction of counterfeit products, as well as publication of court order are also feasible.

To achieve a maxim result and all sorts of available reliefs, a complex patent enforcement strategy is usually developed. In other words, several legal actions (e.g., pre-trial demand letter plus administrative proceedings plus civil lawsuit) are planned, initiated and followed in patent infringement matters.

The enforcement of the patent rights normally begins with collecting and securing the evidence of infringement. The concept of pre-trial discovery (U.S. style) or initial disclosure (UK style) is not allowed according to the Russian procedural law and the burden of proof lies solely with the claimant. To that end, the claimant shall produce and submit evidence himself and may face the risk that the case will be dismissed due to lack of proper and sufficient amount of evidence.

The submissions provided to the court must clearly show who, how, where and how long possibly violates the patent rights. It is advisable that the statement of claims shall, inter alia, contain the name and contact details of the infringer, the description and photos of infringing product and infringing activity, e.g., importation, manufacturing, distribution or storage of the infringing product. All the said details of the possible infringement must be supported with the proper documents (sales contracts, invoices, customs declarations, detective reports, etc.), otherwise it would be considered as the claimant’s allegations. The submissions shall portray to the court what the defendant is doing, and whether the possibly infringing product or method contains all features of the independent claim of the invention.

Indeed, along with the proof of the infringing activity the evidence regarding the title and other rights must be submitted. For example, the exclusive licensee shall have statutory rights to use the same remedies as the patent holder if the patent infringement is taking place. Consequently, among other submissions the claimant has to prove that (a) there is a valid patent and (b) he is the exclusive licensee and thus is authorized to take legal actions.

II. Fact Finding and Preservation of Evidence

1. Prior to Litigation

As the defendant is not obliged to disclose any information about presumably infringing product and its activity, the main task of the claimant is to collect and produce the reasonable, proper and sufficient pieces of evidence to prove the infringement.

There are a few standard ways to collect the evidence of infringement. Trace purchase is a common practice. It can be used when the product is available to public and is not a specific or an extra-expensive one. The trace purchase may furnish solid pieces of evidence because it provides both the possibly infringing product per se and a number of supporting documents (such as sales agreement, invoice, delivery docs, specification, passport of product, manual, ect.) which contains the most valuable information about the target—details of the manufacturer and distributor, description and features of the infringing products.

The professional detective is normally invoked when the defendant’s activity is hidden. The detective’s report along with the product purchased (if any) is another good and practical piece of evidence to support the claims.

Notarial services are very helpful to certify important circumstances and features of the infringement, which can further be removed or modified by the adversary to impede the enforcement. Some infringers use all possible tricks to cover up traces of the illegal activity. For example, one may remove the relevant information from the website and say that the infringing product has never been offered. Notarization of the printouts from the website, and other facts and circumstances about possible infringement may significantly support the claim and help to overcome the adversary’s objections.

2. During Litigation

The situation with regard to evidence does not significantly change during the litigation. Although one additional remedy that serves to obtain evidence becomes available once the case is in court. The law says that the litigant may ask the court to force the other party to submit certain evidence. Prior to filing the said motion with the court, the litigant shall take all possible efforts aimed at accessing the said evidence himself. The litigant shall explain to the court why that piece of evidence is that much important and what facts and circumstances can be confirmed by the requested evidence. It is at the court’s discretion to decide whether to satisfy the motion and order the adversary to submit the requested information.

The said remedy may, however, have two sides: the positive one when it helps to get the necessary information about the infringing product for a fair patentee, and the negative one when it becomes a tool for an unfair competitor to obtain valuable information about the competitive product or technology.

III. Strategic Options

1. Warning/Notice Letters

Warning letter can be a part of enforcement strategy. In that case, the patentee voluntarily sends the warning letter to the opposing party.

At the same time the benefits of the commencing legal actions with the warning letter remain disputable. On one hand, a warning letter could be a useful tool to prove that the infringer is aware of a possible infringement (i.e., guilty by intent) which helps to justify the amount of damages, and is crucially important in criminal proceedings. Sending the warning letter could also be served to check the chance to settle the dispute and get a “useful feedback,” possibly disclosing sensitive information and infringer’s intent.

The other side of the coin is that the warning letter alerts the infringer and may trigger rapid counter-actions.

The other reason to commence the actions with the warning letter is the law requirement. The law prescribes that the claimant shall approach the infringer with the pretrial notice (a warning letter) if he intends to bring monetary claims (damages). The 30 days are granted for the answer to the WL and the lawsuit can be filed with the court if the opposing party is silent or objects to the claims.

If, however, damages is not a part of the claim, then the claimant is allowed not to send the warning letter prior to launching court actions. Therefore, sometimes it is advisable to split the actions into two parts. The first part is aimed to terminate the infringement and obtain injunctions (no pretrial notice is needed in that case). And the second part (designed to claim damages) can be commenced once the principal violation is established by the court. Pretrial notice is not needed in that case.

2. Preliminary Relief

The procedural law does not provide for any special exemption for the intellectual property when the matter concerns preliminary injunctions. However, it is more common for trademarks and copyright than for patent disputes. The reason courts are reluctant to grant interim injunctions is that the patent dispute concerns technical questions, and thus the court cannot easily estimate the potential use of the patent in the disputed product, contrary to trademark or copyright-related disputes where similarity can be seen and estimated by the judge from the perspective of an ordinary consumer at the very beginning of the dispute.

Russian procedural law recognizes preliminary and interim injunctions (hereinafter collectively “preliminary injunctions” or “PI”). A motion for the preliminary injunctions should be filed prior to filing a lawsuit. Whereas a motion for the interim injunction can be filed at any stage of the court proceedings, including along with the main action.

If the court grants PI, the patentee has up to 15 days (the specific term is fixed by the judge) to file the statement of claims (main action). In case the claimant has not initiated main actions within the said time frame, the PI shall be cancelled.

The law and practice both show that the following requirements should be met in order to seek PI: (a) lack of PI may impede or make the enforcement of judgment impossible; (b) failure to grant PI may lead to substantial damages for the patentee (c) scope of PI must correspond and be adequate to the scope of the claims; (d) PI shall not affect balance of interest of the defendant and claimant; (e) for claiming PI (not interim injunctions) there should be the counter-injunctions (e.g., a bond) submitted by the PI applicant in the amount of the monetary sum securing the proprietary interest asserted.

The motion for PI is considered by the court without hearing the parties, and therefore it is crucial to submit clear-cut and well-grounded motions supported by prima facie evidence.

3. Main Proceedings

As noted in Section 2 above, the preliminary injunctions are normally requested within the course of the main proceedings. Meaning that contrary to other jurisdictions preliminary injunctions are a part of principal infringing proceedings rather than a step prior to launching main actions with the court. Therefore, there is no substantial time gap between PI and principal infringement proceedings.

In the meantime, the so-called bifurcation system applied in Russia is normally exploited by the parties when they develop enforcement and defensive strategies. Similar to Germany, patent invalidation proceedings and patent infringement are subject to consideration by two separate branches. Patent invalidation actions are heard by the Patent Office, while patent infringement are considered in courts. Different timelines and procedural aspects may help the parties to get strategic advantages. More details on this can be learned in Section IV—Procedural Aspects.

4. Claim Amendments During Pending Proceedings

From the procedural standpoint, the subject of the litigation shall be determined in the statement of claims, which is the key document filed with the court to commence litigation. The claims, however, can be amended and modified at any stage of litigation before announcing the judgement.

Any claim amendments are subject to a few restrictions. First, the claims shall correspond to the ground (cause) of actions. Second, it is not allowed to amend both the cause of actions and claims. For example, infringement of Patent A was the cause of actions, and the ban to distribute the infringing product was the claim. It is unlikely that the court would accept the claims’ amendment by changing Patent A to Patent B and destruction of the infringing product instead of the ban to distribute.

Invalidation of the patent-in-suit is a ground for termination of the court proceedings. If, however, the patent is invalidated in part the situation could be different. In the past, the courts were reluctant to continue litigation when the patent was invalidated in part. The new patent issued in terms of invalidation actions was treated as a new legal ground for action.

A few years ago, the practice changed because the Supreme Commercial Court ruled that the court had to continue litigation and consider the demands in terms of the newly issued patent. Therefore, now it is more common for courts to keep on litigation based on the newly issued patent, although, as it is a procedural question, the judge should decide whether to continue or terminate the proceedings.

5. Protective Letters

The institution of protective letters is not recognized in the Russian law and practice.

6. Declaratory Action for Non-Infringement

The concept of declaratory judgement for non-infringement is not a part of a patent litigation system in Russia. Therefore, the only way to have immunity from future legal claims is to become a defendant and win the case.

7. Enforcement Prior to Grant

Within the time frame between the date of the official publication of the application and the date of publication of the particulars of the patent grant, the claimed invention shall enjoy provisional protection within the scope of the published claims.

The provisional protection, however, does not authorize the applicant to prevent third parties from using the claimed invention. Normally, the applicant can warn the user of the pending patent and possible risks of paying compensation once the patent is granted.

Any person using the pending patent shall pay compensation to the patentee after the patent is granted in the amount to be determined by the parties or the court. Those users will be obliged either to stop using the invention or to obtain a license.

The provisional protection shall be deemed as not happening where the patent application has been withdrawn or rejected by the RUPTO.

8. Customs Seizure

Contrary to the trademarks and copyright, the patents cannot be recorded with Customs, and thus the inventions are out of Custom’s control and seizure.

IV. Procedural Aspects

1. Court System and Specialization

The national judiciary is composed of the three main branches: constitutional courts, courts of common jurisdiction (also known as “state courts”) and commercial courts (also known as “arbitrazh” courts).

Commercial law issues can become a constitutional matter when a statute relating to the rights of entrepreneurs contradicts the Constitution of the Russian Federation or the constitutions/charters of its constituent entities (regions). There are constitutional courts at the regional level, and the Constitutional Court of the Russian Federation at the federal level.

Patent infringement disputes are heard by courts of common jurisdiction in cases filed against noncommercial defendants, such as individuals that do not have a status of private entrepreneurs, as well as in certain administrative and criminal cases, and commercial courts that hear cases between commercial entities (companies and private entrepreneurs). The majority of patent infringement disputes go through commercial courts.

In both court systems there are courts of first instance (regional commercial courts and district courts of common jurisdiction), appeal instance (appeal commercial courts and regional courts of common jurisdiction) and cassation instance (cassation commercial courts and presidiums of regional courts of common jurisdiction). There are also the second cassation (judicial boards of the Supreme Court of the Russian Federation) and supervisory instance (Presidium of the Supreme Court of the Russian Federation) courts. Supreme Court of the Russian Federation is the highest judiciary.

There is also a specialized court which has been created and started its operation in 2013 within the system of commercial courts—Intellectual Property Court (IP Court). Patent infringement disputes are heard by IP Court at the level of cassation; in other words, IP Court reviews the decisions and rulings of the lower commercial courts of first and appeal instances.

IP Court may be a court of first instance for disputes related to acquisition, cancellation and invalidation of patent rights, including the challenging of decisions of RUPTO in cases heard at the Chamber of Patent Disputes (e.g., the decisions of RUPTO on invalidity actions). The decisions of IP Court acting as a court of first instance may be appealed in the Presidium of IP Court acting as a cassation instance.

Decisions of IP Court acting as a cassation instance may be appealed at the Economic Board of the Supreme Court of the Russian Federation acting as a second cassation instance for all commercial cases.

2. Bifurcation

As noted above, Russian patent litigation system is bifurcated. In other words, patent infringement disputes are commenced and heard by courts, while patent invalidity actions are brought at first in front of Chamber of Patent Disputes (i.e., administrative body of RUPTO). The decision issued by the Chamber of Patent Disputes must be subsequently approved by the Head of RUPTO, and afterwards it may be appealed with IP Court. Patent invalidity actions cannot be filed directly in courts.

Patent infringement matter may be stayed pending until the outcome on patent invalidity matter. If the motion on suspension of court proceedings is not satisfied by the court, and patent infringement matter is resolved, it may be reconsidered following the result of patent invalidity matter in the future.

3. Who Can Sue

Usually patent owners act as plaintiffs in patent infringement cases. If the asserted patent is co-owned, each patent owner may individually take action to enforce patent rights. Registered exclusive licensees may also sue third-party infringers, if their rights are affected. Non-exclusive licensees and distributors do not have a standing to sue, but they can participate in patent infringement cases as third parties.

4. Who Can be Sued

Any person who commits the infringing activity (such as, for example, importation, manufacture, offer for sale and sale of the patented product in Russia) is liable for patent infringement. Multiple parties can be joined as co-defendants in one and the same dispute.

5. Admissibility of Evidence

In a patent infringement matter, the statement of claims must contain the claims against the defendant (the subject matter of lawsuit), the description of circumstances on which such claims are based (the grounds of lawsuit) as well as the evidence supporting these circumstances. Evidence is the information on facts, based on which the court ascertains presence or absence of the circumstances relevant to claims and objections of litigants, as well as circumstances that are necessary for ensuring due process of litigation on the matter.

Each party in action should prove the circumstances on which it bases its legal position. The presented pieces of evidence must be relevant to the case, admissible, true and correct, sufficient and connected to each other.

Documents, audio-visual files, photos, specimens, parties’ explanations, witness testimonies, infringement opinions, notary protocols and expert opinions may be presented to support the claims. Evidence obtained during administrative or criminal proceedings, if relevant, can also be disclosed.

Expert opinions are one of the most important pieces of evidence in patent infringement disputes. Experts are proposed by litigants and chosen by judges. After the submission of opinion, the experts may be called to the court hearing and must answer the questions of judges and litigants. If the expert opinion is not clear or is insufficient, the court can appoint additional expertise to be conducted by the same or a new expert. If the expert opinion is inconsistent or unmotivated, the court may appoint a repeated expertise to be conducted by a new expert.

As noted above, there are no discovery proceedings. The evidence of patent infringement must be provided by the claimant.

6. Structure of the Proceedings

Pre-trial procedure. Usually, it is necessary to send a pre-trial letter of claim to the alleged infringer before moving a patent infringement matter to a commercial court (i.e., when both a patentee/patent owner and the infringer are business entities), if monetary claim (damages or compensation) is sought. A lawsuit may be filed following the expiration of 30 days after the date of the letter of claim. In all other cases, an action may be brought to a competent court without any preliminary letter or notification addressed to infringer (respondent).

Preliminary hearings. Before moving to the hearings on the merits, the court appoints a preliminary hearing where a number of procedural issues are resolved, such as the necessity to appoint an expert, evidence collection, engagement of third parties, etc.

Hearings on the merits and judgment. After the preliminary hearings are completed, the court moves to hearings on the merits. The defendant is obliged to provide the statement of defense in advance; otherwise, implications related to abuse of rights are possible. Litigants are welcome to file additional motions and pleadings. The court examines the evidence submitted by the parties and moves to oral pleading where the parties present their legal position. During the pleading evidence examination may be resumed. Upon completion of evidence examination and oral pleadings, the court issues a judgment.

7. Timing Including Preparation

Normally, preparation for patent litigation may take a few months, since the claimant must collect the evidence in advance. The typical timing for examination of the patent infringement case by a court depends on the workload of the competent court.

In practice, the court appoints a preliminary hearing one or two months after filing the lawsuit. The hearing on the merits will be appointed one month right after the preliminary hearing, if there are no ‘international notification’ issues.

The judgment of the first instance court may be issued by court within five to eight months, if expertise is smooth and the case is not suspended due to parallel patent invalidity action. If the judgment is subsequently appealed, the duration of the patent infringement case may be up to 15 to 18 months in total.

8. Costs and Cost Reimbursement

Before serving a letter of claim and filing a lawsuit, a plaintiff may require certain legal services, such as preparation of patent infringement opinion, identification of infringer, collection of evidence. Costs at this stage will vary depending on the tasks and attorney fees.

The court fees for commencing proceedings in the court of first instance depend on the type and number of claims to be addressed. For example, a fee for non-monetary claims is fixed at 6,000 RUB. Monetary claims fees must be paid proportionally to the amount of the claims (from 2,000 to 200,000 RUB).

Attorney fees are recoverable in reasonable limits and at the discretion of judges. If the claim is granted in part, the defendant covers the claimant’s costs proportionally. If there is a settlement agreement, the parties may reach an agreement on the amount of costs to be recovered, or state that each party bears its own costs.

Services of third-party experts, specialists, witnesses and translators are also reimbursed. Reimbursements are made from court deposits.

9. Enforcement of Decisions

Enforcement procedures are regulated by a special national law. After a court decision is entered into force, the claimant will receive a writ of execution from the court that has issued the judgment.

Enforcement of court decision on all types of claims (both monetary and non-monetary) can be always enforced with bailiff service. Alternatively, judgments relating to monetary claims can be enforced by the bank where the debtor has an account. If the claimant does not have any information on the accounts of the debtor, it can submit an inquiry to the Federal Tax Service, which may disclose this information after the debt is confirmed by the court.

10. Appeal

Infringement action. The appeal may be filed with the commercial appellate court within one month after the court decision of the first instance is issued. After the appellate proceedings, the court decision enters into force immediately. There may be also a cassation appeal (i.e., on the existing case-record) filed to IP Court, as well as further appeals to the Supreme Court of the Russian Federation.

Invalidation action. After the RUPTO issues an invalidation decision, the invalidation decision may be appealed to IP Court, which is the only judiciary over patent invalidation cases. A cassation appeal (on the existing case-record) is possible and may be filed with the Presidium of IP Court. The appellant may also file the second cassation appeal to the Economic Board of the Supreme Court of the Russian Federation, and yet another (supervisory) appeal to the Supreme Court of the Russian Federation.

11. Service Abroad

Russia is a party to the HCCH Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Hague Service Convention). The state authority responsible for dealing with service requests is the Ministry of Justice of the Russian Federation, and the requests are dealt by Russian courts. Process agents, whether private or court-appointed, are not used in Russia. Russia is also a party to the HCCH Convention on Civil Procedure 1954, which is applicable in certain cases (for example, in relations between Russia, Germany and France).

12. Influence of Foreign Decisions

Foreign court decisions may be recognized and enforced by Russian courts when there is international treaty governing such enforcement, or on the basis of principle of reciprocity. Foreign administrative decisions are not recognizable and enforceable in Russia.

13. Protection of Confidential Information

Generally, court proceedings are open to public in Russia. The rulings of the courts are published in a special electronic court system right after their adoption. Confidential court proceedings may be conducted when state secrets are likely to be disclosed, or one of the parties requests for the confidential proceedings in order to preserve certain confidential information that is protected by the law (e.g., trade secrets), if the court accepts this request.

V. Claim Construction

1. Most Important Rules for Literal Claim Construction

Similar to many other jurisdictions, the scope of legal protection of invention is determined by the independent claims. Although descriptions and drawings shall normally portray the content of each feature of independent claim and be served to interpret the invention, the claims per se are the most important part of the patent aimed to define the scope of protection.

The claim interpretation always concerns a number of technical questions, construing special terms and sentences. Even if the judge is a person skilled in the art, he must judge from the perspective of law and shall not take responsibilities for the matters, which require special technical knowledge. Therefore, normally the judge invites the parties to suggest the candidates to be appointed as an independent expert.

The court shall choose and appoint one or a panel of experts, who then shall study and analyze the claims. All pieces of evidence shall have the equal powers and priority and be uniformly considered and estimated by the court. Although the expert report is commonly treated as one of the key pieces of evidence to decide on use of the patent.

There is no special law regulating the claim construction in terms of litigation. At the same time, there is a huge set of rules covering construction and interpretation of claims within the examination stage at RUPTO. Therefore, when it concerns a claim interpretation in terms of litigation the rules relating to the claim drafting shall normally be applied by the court and experts.

Those rules provide that the features of the inventions shall be expressed in the claims so that they can be easily identified and understood. It means that it should be possible for the skilled person to clearly and explicitly understand what this invention is about and what the scope of protection is. If some particular technical feature given in an independent claim cannot be identified by the skilled person, then that can be interpreted by the court as the patent not being used in the product. Although, the expert may write in the report that this or that term/interconnection/ process/or material, etc. is known to the skilled person, it is a common and advisable practice to rely on the corresponding scientific and patent literature, including dictionaries and other references.

Other important aspects worth to consider when interpreting the claims is the interrelations between invalidation and litigation proceedings. Claims interpretation given in the frame of invalidation actions can further be brought and submitted to litigation and vice versa. Therefore, from the strategic standpoint it should be noted that the court will unlikely accept the interpretation of claims contrary to the one given at the Patent Office within the invalidation proceedings.

2. Doctrine of Equivalents

Doctrine of equivalents is quite often applied in the patent litigation. An invention is considered to have been used if every feature given in the independent claim is used in the product or the method, or a feature equivalent thereto that became known as equivalent in the given field of art before the priority date of invention. No doctrine of equivalents shall apply to the use of industrial designs and utility models.

A feature will be considered equivalent if it gives the same result as the patented feature in the independent claim. Statutory regulations and case law prescribe that the following requirements and criteria shall be met in order to establish the equivalence of the features:

  • The change does not alter the essence of the invention;
  • The result provided by the invention with the changed feature is the same; and
  • The feature replacing the feature of the patented invention is known in the art.

In terms of litigation, equivalence is to be determined by an expert appointed by the court as described above. The expert makes a conclusion as to whether there is an equivalence and consequently the use of the patent.

Another limitation which shall be noted is prosecution history estoppel, also known as file-wrapper estoppel. The Russian statutory regulations do not have any direct references to the rule of estoppel, although abuse of rights, is prohibited by the federal law.

The case law shows that the judges are familiar with and apply the rule of estoppel. In the context of the Russian patent litigation, the rule of estoppel is understood as follows: meanings and limitations provided by the applicant with regard to pending patent at the examination stage at RUPTO should be taken into account by the courts and experts when construing the claims and applying doctrine of equivalents. If, for example the patent was granted because some particular feature was added to the claim the patentee cannot claim and rely on equivalents if the disputed product does not contain that particular feature.

VI. Liability

1. Direct Infringement

The general principle on defining patent infringement is the following: the invention is deemed to be used in the product or process if the product contains and the process uses each feature of the independent claim, or the feature equivalent thereto, or the feature that has become known as such in the given technical field, prior to the invention priority date.

The list of activities that may lead to patent infringement include:

  • Importation to Russia, manufacturing, working, offer for sale, sale and other commercialization or storage for that purpose of the product in which the invention is used; of the product, manufactured using the patented process; of the device if in case of use of such a device the patented process is automatically worked; of the product subject to working in accordance with the purpose indicated in the set of claims, in case the invention is the working of a product for a specific purpose;
  • Implementation of a process in which the invention is used, including by means of using the process. Importantly, there are certain statutory exceptions where patent infringement will not be established.

2. Indirect Infringement

The law does not specifically recognize indirect or contributory infringement. Any unauthorized use of the patented invention by any means constitute patent infringement, unless there are statutory exceptions that shall be applied. In addition, the law allows filing of claims against persons that make necessary preparations for infringement or perform activities that create a threat of infringement.

3. Divided Infringement

Divided (also known as ‘joint’) liability does exist in Russia. When patent infringement occurs through the joint actions of several persons, such persons shall be held jointly liable with respect to the patent owner. In other words, they will bear joint and several liability under the divided patent infringement, if established by the court.

VII. Particular Defenses

1. Limitation of Claim

The law does not provide for a procedure for the amendment or limitation of claims after the patent at issue has been granted. Only clear mistakes and clerical errors may be corrected in the granted patent, including at the request of the patentee. The patent claims may be amended or limited in the course of an independent invalidity action initiated by a third party, if such amendment or limitation would remove the grounds for invalidation. Limitation of claims right in the patent infringement matter is not available.

2. Exhaustion

Patent rights are exhausted if the use of the product (such as importation, working, offer for sale and sale, other ways of commercialization, or storage for that purpose), in which the invention is used, was previously entered into commerce in Russia by the patentee or under consent of the patentee by a third party.

3. Conversion of an Invalid Patent into a Utility Model

As with claim limitation, patent conversion right is not available in the patent infringement matter. Patent conversion is possible, however, in the event of patent invalidity action or during prosecution, at the request of the patent owner. Again, patent infringement and patent invalidity matters are bifurcated.