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Patent Infringement

The word "Patent infringement" means an encroachment upon the domain belonging to a patentee or patent holder that is described by the claims of her/his patent during the term of the patent and within the country that issued the patent, is considered to infringe the patent, typically, a party (other than the patentee or licensee of the patentee).

Patent infringement is the unauthorized manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining permission of the owner of the patent.

The infringing party will be legally responsible to the owner of the patent for all profits made from the use of the invention, as well as any damage which can be shown by the inventor, whether the infringement was intentional or not.

Determination of patent infringement involves a two-step process. First, the claims are analyzed by studying all of the relevant patent documents. Second, the claims must "read on" the accused device or process. This means that the device or process is examined to see if it is substantially described by the claims; in other words, the claims are tested to see whether they describe the accused infringement.

Infringement can be direct, indirect, or contributory. Anyone who makes, uses, or sells the patented invention is a direct infringer. If a person actively encourages another to make, use, or sell the invention, the person so inducing is liable for indirect infringement. Contributory infringement can be committed by knowingly selling or supplying an item for which the only use is in connection with a patented invention. Good faith or ignorance is no defense for direct infringement, but it can be for indirect or contributory infringement.

When a person or business infringes on a patent, they trespass on someone else’s property – more specifically, that person’s intellectual property. The infringing entity takes from the owner of the patent revenue that rightly belongs to the patent owner.

The burden falls on the patent owner to prove infringement of the patent. , in a patent infringement lawsuit, it is the responsibility of the plaintiff to prove that the defendant infringed the patented invention. This is usually done by reverse-engineering the product or service the defendants produces and/or sells, and expert witnesses are often called upon by both sides to testify in court.

Patents are territorial and infringement is only possible in a country where a patent is in force. For example, if a patent is filed 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 make the patented item in their country.

Since patents are public documents, it is easy for any business with larceny in its blood to essentially “steal” a patent and use it to produce a product or service. And the law does not require manufacturers to inform patent owners that they are using the patent owner’s invention.

Patent infringement can also be unintentional. It is sometimes the case that an inventory files and receives a patent for his invention, and a business’s research and development facility creates the same invention. As the expression goes, “Great minds think alike.

You might think that patent holders who invest the time and money to protect their inventions have the upper hand in court, but that's not the case. In fact, patent holders lose against accused patent infringers about 75 percent of the time.

And losing the exclusive rights to a highly innovative device or gadget can mean big money. Some patented products can generate hundreds of millions of dollars in revenue over their lifetimes.

The very existence of a patent, however, sets the stage for battles. What if two people come up with the same idea simultaneously? Thus an inventor should ensure that he file a solid, defensible application with the government agency that oversees intellectual property. In the U.S., that body is the U.S. Patent and Trademark Office (USPTO). When inventors apply for a patent, they must describe the claims of the patent very carefully and precisely. This language determines what can and can't be protected. Infringement occurs when the infringer tries to make, use, offer for sale, sell or import an invention that lies within the claims of an existing patent.

Sometimes, the infringer knowingly tries to copy an existing product or process, perhaps with a minor modification to make it seem different enough to be considered a new invention.

The Supreme Court defines simply: "If two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape".

At other times, one inventor, with no knowledge of similar efforts, comes up with the same idea as another inventor. This is known as independent invention, and though one might think patent law would treat such cases less harshly, that's not always the case. In fact, independent invention can't be used as a defense against patent infringement.

Thus if an inventor, or patentee, believes his or her invention has been infringed. Often, it's off to court.

In response to allegations of infringement, an accused infringing party will generally assert one or more of the following:
it was not practicing the patented invention;
it was not performing any infringing act in the territory covered by the patent;
the patent has expired;
the patent (or the particular claim(s) alleged to be infringed) is invalid, because the invention in question does not meet patentability or includes a formal defect, rendering the patent invalid or unenforceable;
it has obtained a license under the patent;
the patent holder is infringing patent rights belonging to the accused infringing party, and the party may resolve the dispute in settlement or cross-licensing.
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