Law360, New York (June 6, 2011)--Patent litigants often consider only liability issues, including infringement and invalidity, when determining claim construction strategies. Plaintiffs attempt to capture the accused products while excluding threatening prior art. Defendants attempt the opposite. Both sides also should consider a third area in which to shape the case during claim construction: the potential for establishing or eliminating potential noninfringing alternatives that will impact the damages analysis.
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