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What is Patent Infringement?

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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
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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?

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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