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How to Deal with Patent Infringement

Do you take care of at least some of your shopping through Amazon? It wasn’t that long ago when the tech giant attempted to patent its one-click payment option.

Of course, that didn’t go over well, as the court eventually ruled that such a move was simply too obvious of an idea to patent.

But figuring out how to deal with patent infringement can be tricky on any level. As a business owner, you need to be prepared in case someone infringes on your patent or if someone else makes a patent infringement claim against you. 

How to deal with patent infringement —and what it is

Patent infringement happens when someone creates, uses, imports, or sells a product that another person, business, or entity invented without their permission. Patent infringement is fairly simple to do, since all patent information is accessible and public, but the act of patent infringement is illegal.

If the patent holder decides to sue the person or business that committed patent infringement, the court will usually step in and halt the illegal activity. They will also often punish the entity that committed patent infringement with a penalty, typically a monetary award to the patent holder. It’s possible to have multiple infringement claims for one patent, since patented ideas usually come with multiple different parts or sections.

Stages of patents

All patents begin with someone coming up with a design or idea for a new, innovative, and creative product or service. During the pre-patent stage, the inventor does not own anything and is not entitled to rights from the invention. The first step in the patenting process is documenting the idea with a provisional patent application. After the inventor files the provisional patent application, the invention is considered patent-pending, and the inventor will have some rights to sue if someone else takes their idea. That being said, the patenting process is fairly lengthy.

After the inventor files the provisional patent, it is valid for up to one year before you need to file a non-provisional patent to prolong the patent protection. At this phase of the patenting process, the company will usually make a public announcement about the patent-pending status. And after the USPTO issues the patent, it is considered enforceable under the law. 

That being said, the inventor is required to renew the patent. If the patent expires, others are able to file a patent for the invention. Keep in mind that patent infringement is a civil claim, so it is the patent holder’s responsibility to bring the matter to suit if someone infringes on the patent.

Explaining patent claims

For someone to make a patent infringement claim, they need to be able to prove that the invention was actually used without their permission. To start the patent infringement claim, the inventor needs to use their patent file as the primary resource. 

When they file the patent claim, they are making a claim that someone has infringed on the patent. They need to begin by offering proof that the product or idea has been used illegally. Keep in mind that the new idea could be better or slightly different than the original idea and still constitute a patent infringement.

When a patent holder files a patent infringement claim, there is a big difference between methods and processes. If the person is accused of infringing on a method but they had used the method for at least a year before the patent holder filed the original patent, then they might not be found guilty of infringement.

Analyzing patent infringement

When discussing and learning how to deal with patent infringement, you need to know and understand a few important terms, including:

- Infringer. An infringer refers to someone responsible for infringing on someone else’s patent.

- Contributory infringer. A contributory infringer refers to someone that helps with the creation or sale of a patented invention.

- Multiple infringers. Multiple infringers refers to cases where more than one party is accused of infringing on the same patent.

Types of patent infringement

Here are the most common kinds of patent infringement:

- Direct infringement. In direct infringement, a patent holder develops a product without the permission of the patent holder. In this case, the infringer doesn’t need to know about the existence of the patent for the patent owner or holder to sue them for direct infringement. Whether or not the infringer knows about the existence of the patent, the infringer is not legally allowed to create, offer, use, import, or sell a patented invention.

- Indirect infringement. With indirect infringement, the indirect infringer does not directly infringe on the patent, but they encourage or help someone to infringe on the patent. 

- Induced infringement. Induced infringement refers to a situation in which someone induces or persuades someone else to develop a patented invention. Induced infringement is often used in a similar way as indirect infringement.

- Contributory infringement. With contributory infringement, someone offers a part or a product to assist someone else in infringing a patent. The part or product cannot have any other reasonable use to be considered contributory infringement.

- Literal infringement. In order to prove literal infringement in court, all parts of the defendant’s idea or device need to be present in the patented one.

- Willful infringement. Willful infringement refers to a company, person, or entity purposely using someone else’s patented products or ideas. One way to disprove willful infringement is by hiring a patent attorney, who will inform their client if patent infringement is about to happen. It’s fairly common for a court to award treble damages in the case of willful infringement. This can usually serve to prevent the willful infringement claim due to the size of the damages.

Patent infringement defenses

One of the most common defenses to patent infringement is that the patent is not valid. The patent could be considered invalid for a number of reasons, including:

- The patent does not meet novelty and non-obvious requirements

- The patent violates antitrust and other competition laws

- The person uses the patented idea or item for illegal activity

- The patent holder includes misleading or wrong information on the patent

- The patent holder is dishonest on the application

The idea or product needs to be brand new in order to meet the novelty requirement. The non-obvious requirement means that the invention is not simply a modified version of a former design.

Have more questions? Call the Johnson Dalal Law Firm at (954) 507-4500 if you’re still trying to navigate the murky waters of patent infringement. You can also contact us by clicking on this link.

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