It is possible to understand patent infringement and the reasons it occurs by looking at the history and evolution of Patents.
Patents are a limited monopoly granted by the federal government to inventors in exchange for their inventions. Patents grant the patent owner or the patentee the right to prohibit others from using their patented invention without their permission. Patent infringement is a problem that is becoming more common as new products are created, manufactured, distributed, and sold in many different countries.
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What is Patent Infringement
Patent infringement refers to the fabrication and/or use of an invention or improvement that someone else owns under a government-issued patent without the owner’s consent by contract, license, or waiver.
One commits patent infringement if he or she makes, uses, offers to sell, or sells something containing all elements of a patent claim or its equivalent unless the owner permits it.
Types Of Patent Infringement
Direct Infringement : This is the most obvious type of unauthorized usage, as any patent attorney can tell you. This is when a protected idea or invention is used, produced, used, sold (or attempted to sell), or imported without authorization from its rightful owner. Direct infringement is when the unauthorized version performs exactly the same function or matches the description of the original.
Indirect Infringement: Has two types of infringement. The first is contributory infringement. This refers to the purchase or import of materials intended to be used in a patented product. To defend your patent in this case, you must prove that the materials were only intended to be used as part of your protected patent. Infringement by inducement is another type of indirect infringement. This refers to activities that cause someone to directly infringe a patent. This means that one person or organization must convince another to engage in activities that result in the infringement of the original patent. Even without knowledge of the original Patent, they can still be held responsible.
Literal and Willful Infringement: Willful infringement involves the notion of intention. This refers to acts of infringement that disregard patent protection. It means that the infringer knew of the patent but chose to ignore it. Literal infringement is when an exact copy of a patent item is used, sold, or imported. The copied version would include all the features described in the original patent. It’s not common, but it can be just as obvious as willful infringement. Sometimes, literal infringement can be claimed by the infringer that they have the license rights to the product or that the original patent has been invalidated.
Doctrine Of Equivalents Infringement: It is important to remember that even though the infringing product may not be identical, a judge could find in favor of the patent holder if it performs the exact same function and produces the same results. Even if the patent holder’s product is more efficient, he or she may prevail in this case.
Examples Of Patent Infringement
Thousands of patents are filed every year. Intellectual property infringement lawsuits account for a large portion of civil legal cases that go to court. Here is a compiled list of historical patent infringement cases.
- Amazon attempted to patent its one-click payment method. The court ruled that it was too obvious to patent.
- Napster, a file-sharing platform, settled a lawsuit alleging it of illegal distribution of music. Later, it filed for bankruptcy.
- Google and Microsoft fought for five years over patent disputes involving Motorola smartphones and the Xbox gaming system.
Remedies for Patent Infringement
In case of patent infringement, there are many remedies that you can pursue as a patent owner. These include equitable, monetary relief as well as costs and attorney’s fee.
Patent infringement can be rectified by monetary relief in the form of compensatory damages.
- Compensation damages – Patent owners may be eligible to recover their lost profits due to infringement after they have determined the patent’s value. In cases of willful and deliberate infringement, you can recover up to three times the compensatory damage.
- Time limit for damages – Damages can only be claimed after the date that the patent was issued. This period is only six years from the filing of an infringement claim.
An injunction is a court order that a person does something or prohibits them from doing it. There are two types of injunctions:
- Preliminary Injunctions – Court orders or petitions made during the early stages of litigation that prohibit parties from performing an act that is not in dispute (e.g. Manufacturing a patent product
- Permanent injunctions – Final orders from a court directing a person/entity to cease doing certain activities or take certain actions
If the patent owner can show a high likelihood of winning the case and that the case has suffered a permanent injury without injunctive relief, the preliminary injunctive remedy is granted. A patent owner must also show a “clear demonstration” of validity. This includes:
- Prior judicial ruling regarding patent validity
- Acceptance of industry standards by others for many years
If the technical framework clearly shows that the patent is valid, it’s clear that the patent is valid.
Permanent injunctive relief is usually granted to the patent owner who prevails, unless it is contrary to public interest.
An attorney helps you navigate the complex and stringent procedural requirements of litigation in cases of patent infringement and get to the heart of the matter.
If the patent owner has “committed unjust conduct or been partially involved in bad faith litigation,” then the accused infringer may be required to pay an attorney’s fee.
How do you avoid patent infringement
As an inventor, when a company is still in its early stages of product development, you may need to conduct a freedom-of-operators search. You should consider possible modifications to product design in order to avoid costly and lengthy patent litigation. To avoid patent infringement, the first step is to find out which patents may be infringed on the product you are designing. This can be done through:
Freedom to Operate Search
An FTO (freedom to operate) search can also be known as a patent infringement search. It is designed to help you evaluate the possibility of infringing another patent. A skilled patent attorney can perform this search and assist you with this risk assessment. FTO searches for utility patents will examine the claims of other patents and determine if your product infringes those claims. You are at risk of being sued if your product falls within the patent claims. The cost of an FTO search can vary depending on the product and the way the results are delivered. The complexity of the product and the work required to conduct the search will impact the cost. You may also need to consider whether you plan on relying on the resulting opinions as part of any defense in the event of a lawsuit being filed. An FTO search may help reduce the risk of patent infringement and subsequent litigation.
Do Your Research
You will be better equipped to design around patents you may infringe once you have received freedom of operation opinion. You should design around utility patents. Learn and analyze the claims of high-risk patents identified by the FTO search. This will allow you to create something similar without infringing any patent claims. By designing around patents, you reduce the risk of being sued for patent infringement and minimize your liability. It is advisable to carefully study the patent’s description and file history. You can find any arguments or modifications made by the applicant to obtain the patent granted. This can also help you avoid patent infringement.
A Patent Claim is Dismantled
It is crucial to fully understand the anatomy of a patent claim when you look at it in order to design around it. Patent claims can contain multiple features. Patent infringement can be avoided by not allowing your product to include all the features covered by the patent claim. You can add one additional feature to your product, but it will not stop infringement. Your product will still contain all the relevant features in the patent claim. Your product is less likely to infringe the patent if you can modify features that are similar to those listed in the claim.
There is still time to take action around the inventor
To avoid patent infringement by altering the same features of your product, you need to first identify ways to distinguish your idea from the patented invention. Consider what makes your idea unique. Then you can build on your idea, tweak the features of your product and improve it over the patent-protected invention. This type of product development can be done after an FTO search. It will help you avoid patent infringement and reduce the risk of being sued. Designing around patents can lead to the creation of new designs that could mature into intellectual property.
Now over to you
It is significant to be able to identify the possible patent infringement scenarios that could occur and to know how to best protect your patents. We are here to assist you if and when you need to defend your Patent in Court. Contact us for more information.