What is Patent Infringement?

Clients Rate Lawyers on our Platform 4.9/5 Stars
based on 2,724 reviews

Jump to Section

Need help with a Patent Application?

CREATE A FREE PROJECT POSTING
Post Project Now

Patent Infringement is the violation of a patent owner’s rights with respect to some invention. Unless permitted by the patent owner, one commits paten infringement by making, using, offering to sell, or selling something that contains every element of a patented claim or its equivalent while the patent is in effect.

For infringement to occur, the prohibited act must be done in the United States or a violating product must be imported into the United States after being created abroad.

What Is Patent Infringement?

Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention.

The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder.

Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling or importing the patented item, while people in other countries may be free to exploit the patented invention in their country. The scope of protection may vary from country to country, because the patent is examined – or in some countries not substantively examined – by the patent office in each country or region and may be subject to different patentability requirements.

Here is an article for more information on patent infringement.

Key Patent Terms to Understand

All too frequently, intellectual property attorneys use patent jargon and, as a result, others are unable to understand. There are numerous patent terms that you should understand, so many, that there are actual mini glossaries of the terms and definitions.

For a glossary of patent terms and definitions on Wikipedia, refer here .

Types of Patent Infringement

The various types of patent infringement occur when a person or business uses parts of a patented idea, method, or device without permission. Patent infringement could involve either using or selling the patented invention or idea. Before you can sue someone for patent infringement, you must figure out who is at fault, which is not always as obvious as you might think.

Following the types of patent infringement.

Direct Infringement

Making, using, selling, trying to sell, or importing something without obtaining a license from the patent holder is considered direct patent infringement. The offender must complete this act willfully and within the United States.

Indirect Infringement

Indirect infringement includes contributory infringement and inducement to infringe a patent. Under these terms, even if a company isn’t the one that originally infringed on the patent, that company can still be held accountable for patent infringement.

Contributory Infringement

This type of infringement involved the purchase or importation of a part that aids in creating a patented item. To prove contributory infringement, one must show that the component’s main use would be to create a patented item. A generic item that has other uses usually doesn’t qualify in proving contributory infringement.

Induced Infringement

This occurs when a person or company aids in patent infringement by providing components or helping to make a patented product. It occurs through offering instructions, preparing instructions, or licensing plans or processes.

Willful Infringement

Willful infringement exists when a person demonstrates complete disregard for someone else’s patent. Willful infringement is especially damaging to defendants in a civil suit. The penalties are much higher, and typically defendant must pay all attorney and court costs if they are found guilty.

Literal Infringement

To prove literal infringement, there must be a direct correspondence between the infringing device or process and the patented device or process.

Doctrine of Equivalents

Even if the device or method doesn’t exactly infringe a patent, a judge might find in favor of the patent holder. If the device does basically the same thing and produces the same results, it could be an infringement.

There are five ways to justify a case of patent infringement:

  1. Doctrine of Equivalents
  2. Doctrine of Complete Coverage
  3. Doctrine of Compromise
  4. Doctrine of Estoppel
  5. Doctrine of Superfluity
Meet some lawyers on our platform

Tabetha H.

12 projects on CC
View Profile

Christopher M.

9 projects on CC
View Profile

John P.

7 projects on CC
View Profile

Anand A.

10 projects on CC
View Profile

Examples of Patent Infringement

Following are examples or patent infringement.

  • The file-sharing company Napster settled a lawsuit accusing it of unauthorized distribution of music. The company later filed bankruptcy.
  • Nintendo was forced to pay a large sum to Tomita Technologies International, Inc. for its 3DS gaming-system technology.
  • Microsoft and Google dueled for five years over patent issues involving the Xbox gaming system and Motorola smartphone.

Here is an article for more information relating to patent infringement.

When Does Patent Infringement Occur?

Patent infringement occurs when another party makes, uses, or sells a patented item without the permission of the patent holder. The patent holder may choose to sue the infringing party to stop his or her activities, as well as to receive compensation for the unauthorized use. Since intellectual property is governed by federal law, the patent holder must sue the unauthorized party in federal district court.

Patent holders must bring infringement actions within six years from the date of infringement; if the suit is not brough in this time limit, it is time-barred, ratifying the infringement.

Here is an article for more information about patent infringement litigation.

Punishment for Patent Infringement

If the court finds that the patent infringer is causing damage before or during the case, it could grant a preliminary injunction, which prevents the infringer from continuing his or her actions. To have a preliminary injunction granted, the person requesting the injunction must show the following:

  • Public interest will not be negatively affected if the injunction is granted.
  • There is high merit to the case, which is likely to result in success.
  • There can be additional hardship to the patent holder if the party infringing is allowed to continue use during the litigation proceedings.

Preliminary injunctions can be difficult and are not often granted unless there was adjudication previously that showed validation of the patent.

How to Avoid Patent Infringement

To avoid patent infringement, you can hire a patent lawyer to handle the patent process for you or you can do an online search via the United States Patent and Trademark Office (USPTO) to check to see if a patent is pending or has been granted.

Following are tips to avoid patent infringement.

Start Early and Keep Your Diligence

The best time to begin your infringement review is during the product concept stage (i.e., prior to developing a prototype). By identifying potential infringement issues at this stage, you can weed out product deigns which carry a high risk of liability.

Keep Your Head Above the Sand

Some people will intentionally avoid becoming aware of a patent of a competitor, believing this will help them later. Ignoring a patent will not help you later in litigation and it can potentially result in a judgment finding that you have intentionally infringed upon a patent.

Find Patent(s) You May Be Infringing Upon

You should identify what patent(s) exist that you could be infringing upon. You can do this by doing the following:

  • Online patent search. You can do this via the USPTO website
  • Review competitor’s product . In addition to performing a patent search for patents related to your new product, you should also review all know competitor products for any patent notices.
  • Contact competitor. If you believe that a competitor has a patent on a related product, but cannot find the patent via an online search, you may want to consider contacting the competitor to see if they have a patent. Keep in mind that doing this, you are immediately putting your company under radar with the competitor.

For more information related to how to avoid patent infringement, read here .

Getting Help with a Patent Infringement Matter

Do you need help with a patent related infringement matter?

Post a project in ContractsCounsel’s marketplace to get flat fee bids from lawyers in our network. All lawyers are vetted by our team and peer reviewed by customers for you to explore before hiring.

How ContractsCounsel Works
Hiring a lawyer on ContractsCounsel is easy, transparent and affordable.
1. Post a Free Project
Complete our 4-step process to provide info on what you need done.
2. Get Bids to Review
Receive flat-fee bids from lawyers in our marketplace to compare.
3. Start Your Project
Securely pay to start working with the lawyer you select.

Meet some of our Lawyers

View Jason
Member Since:
June 12, 2022

Jason Q.

Attorney / Owner
Free Consultation
Get Free Proposal
Sarasota, Florida
14 Yrs Experience
Licensed in FL
Wake Forest University School of Law

I am a Florida estate planning and probate attorney helping clients achieve their goals through personalized legal strategies. Excellent communication, thorough preparation, and accurate execution are the keys to success.

View Michael
Member Since:
June 13, 2022

Michael T.

Lawyer
Free Consultation
Get Free Proposal
Fairfax, Virginia
32 Yrs Experience
Licensed in DC, MD, VA
College of William and Mary

I have been in practice since 1990 and practice in D.C., Maryland, and Virginia. I am an experienced litigator and look forward to resolving your legal questions as efficiently as possible.

View Richard
Member Since:
June 20, 2022

Richard G.

Attorney
Free Consultation
Get Free Proposal
Greensboro, NC
2 Yrs Experience
Licensed in NC
University of Elon School of Law

Hello! I am an Iowa native trying to bring some Midwest problem-solving to southern civil law. I thoroughly enjoy getting to know the individuals and businesses I assist. I practice estate planning and business formation and, with my litigation experience in mind, I help clients plan to ensure they and their interests are protected in the future.

View Danielle
Member Since:
July 12, 2022

Danielle G.

Attorney and Founder at Danielle D. Giovannone Law Office
Free Consultation
Get Free Proposal
Schenectady, NY
15 Yrs Experience
Licensed in NY
Fordham University School of Law

Danielle Giovannone is the principal of Danielle D. Giovannone Law Office. In her experience, Danielle has found that many business do not require in-house legal counsel, but still need outside counsel that knows their business just as well as in-house counsel. This need inspired Danielle to start her firm. Before starting her firm, Danielle served as Contracts Counsel at Siena College and as an attorney at the New York City Department of Education, Office of the General Counsel. At the NYCDOE, she served as lead counsel negotiating and drafting large-scale commercial agreements, including contracts with major technology firms on behalf of the school district. Prior to the NYCDOE, Danielle worked as an associate at a small corporate and securities law firm, where she gained hands-on experience right out of law school. Danielle has provided legal and policy advice on intellectual property and data privacy matters, as well as corporate law, formation and compliance, employer liability, insurance, regulatory matters, general municipal matters and non-profit issues. Danielle holds a J.D. from Fordham University School of Law and a B.S. from Cornell University. She is active in her Capital District community providing pro bono services to the Legal Project, and has served as Co-Chair to the Niskayuna Co-op Nursery School and Vice President of Services to the Craig Elementary School Parent Teacher Organization. Danielle is a member of the New York State Bar Association.

View Michael
Member Since:
July 14, 2022

Michael J.

Partner
Free Consultation
Get Free Proposal
Warren, New Jersey
14 Yrs Experience
Licensed in NJ, NY
New York Law School

Combining extensive experience in litigation and as general counsel for a real estate and private equity company, I provide ongoing guidance and support to clients on a variety of transactional matters, including business formation, partnership agreements, corporate agreements, commercial and residential leasing, and employment issues.

View Anand
Member Since:
July 17, 2022

Anand A.

Counsel
Free Consultation
Get Free Proposal
Philadelphia, PA
8 Yrs Experience
Licensed in NJ, PA
Rutgers University School of Law

Anand is an entrepreneur and attorney with a wide-ranging background. In his legal capacity, Anand has represented parties in (i) commercial finance, (ii) corporate, and (iii) real estate matters throughout the country, including New Jersey, Pennsylvania, Delaware, Arizona, and Georgia. He is well-versed in business formation and management, reviewing and negotiating contracts, advising clients on financing strategy, and various other arenas in which individuals and businesses commonly find themselves. As an entrepreneur, Anand is involved in the hospitality industry and commercial real estate. His approach to the legal practice is to treat clients fairly and provide the highest quality representation possible. Anand received his law degree from Rutgers University School of Law in 2013 and his Bachelor of Business Administration from Pace University, Lubin School of Business in 2007.

View Christopher
Member Since:
August 16, 2022

Christopher M.

Corporate Counsel
Free Consultation
Get Free Proposal
North Cariolina
2 Yrs Experience
Licensed in CA
California Western

I am a corporate attorney with several years of experience with contracts, corporate and business, government projects, and employment law.

View Marc
Member Since:
July 28, 2022

Marc S.

Attorney
Free Consultation
Get Free Proposal
Henderson, Nevada
41 Yrs Experience
Licensed in NV
Southwestern University

Have been practicing real property and business law in Nevada for over 40 years. No longer handling any litigation, transactional matters only.

View Howard
Member Since:
July 29, 2022

Howard B.

Managing Member
Free Consultation
Get Free Proposal
Tulsa, Ok
9 Yrs Experience
Licensed in OK
University of Tulsa

Berkson is a dedicated, practical, and detail-oriented attorney licensed to practice in every state court of Oklahoma and the United States Northern and Eastern District Courts. He graduated from the University of Tulsa College of Law with Honors. While there, he received awards for highest grade in trial practice, legal research, and civil procedure. He was also the Executive Notes and Comments Editor for the Energy Law Journal, the official journal of the Energy Bar Association in Washington, D.C. The Energy Law Journal is one of the few peer-reviewed journals in the legal profession. Prior to becoming an attorney, Howard Berkson held executive positions involving a wide range of business and human resources management functions. He has in-depth knowledge of both business and HR practices. During his business career, Berkson negotiated, wrote, red-lined, and disputed contracts. He has answered charges, handled inspections, and supervised audits involving numerous agencies including the Department of Labor, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, and various state agencies. Berkson honed his analytical and writing skills while earning his Bachelor of Arts degree in Philosophy from the University of Washington. He went on to obtain a Master of Arts in Labor and Industrial Relations from the University of Illinois. Berkson’s work can be found in such publications as The Energy Law Journal, Human Resource Management Review and Personnel Psychology. He is a member of Phi Alpha Delta law fraternity and of Phi Kappa Phi honor society.

View Erik
Member Since:
July 31, 2022

Erik D.

Attorney
Free Consultation
Get Free Proposal
Tampa
13 Yrs Experience
Licensed in FL
Stetson University College of Law

Erik has been a practicing attorney in Florida for over a decade. He specializes in employment and real estate contracts. He has represented clients big and small and can assist with any contract issue.

View Domonick
Member Since:
August 1, 2022

Domonick G.

Attorney
Free Consultation
Get Free Proposal
Houston
1 Yr Experience
Licensed in MO
Thurgood Marshall School of law

I am a licensed attorney who specializes in business law, personal injury and contracts.

Find the best lawyer for your project

Browse Lawyers Now

Want to speak to someone?

Get in touch below and we will schedule a time to connect!

Request a call