Types of Patent Infringement

A patent is a type of intellectual property that gives the person who owns it the legal right to exclude others from making, using, or selling the property for a specified period of time. In exchange for this patent protection, the owner of the patent publishes a detailed disclosure of their invention.

In most countries, patent rights are a matter of private law, and the patent holder must file a lawsuit against anyone who infringes on a patent in order to enforce their right to exclusive use. This is the case in the U.S. In some industries, patents are critically important to the competitive advantage of certain companies.

The United States Patent and Trademark Office (USPTO) issues a patent after the inventor has filed a provisional patent application that documents the concept of the inventor. After an inventor has filed their provisional patent application, their invention is considered patent-pending. At this stage, the inventor has a right to sue another person who makes use of the patent-pending property.

Once an inventor has a provisional patent, it is valid for one year. Within that year, an inventor must file a regular patent application to prolong their patent protection. At this stage, the inventor often makes a public announcement of the patent-pending status of their property in order to inform competitors. It can take several months for a provisional patent to become final. The USPTO can choose not to grant the provisional patent, if the inventor requests a delay.

Once the USPTO issues the patent, the patent owner becomes legally authorized to enforce it. A patent lasts for 20 years and must be renewed if the owner wants it to continue beyond that time period. If not renewed, the patent expires, and the property becomes available for general use.

It is important to note that just because a person owns a patent does not mean that it is automatically enforced. The USPTO legally grants the patent, but it is ultimately the patent holder’s responsibility to enforce the patent. This is done by filing a lawsuit in a civil court of law.

A patent is usually in effect for 20, 17 or 14 years from the time the application is filed, depending on the type of patent. Patents are included in the international agreements of the World Trade Organization (WTO), so WTO-member nations are legally obligated to recognize and enforce patents.

Obtaining a patent can be a time consuming process. It can take as long as five years to reach successful completion of an application. As noted above, the process involves filing an application with the USPTO, paying the required fees, and responding to questions and actions from the USPTO. And there are steps that a person who anticipates applying for a patent should take before filing a provisional application, such as doing a patent search to make sure that their unique and original idea has not already been patented.

What Is Patent Infringement?

Patent infringement occurs when an entity that does not own a patent makes an unauthorized use of a patented property. This might involve production of a patented item, its sale, or an offer to sell the subject matter of another entity’s patented property. There are quite a few types of patents.They include such property as the following:

• Utility Patents: Utility patents protect inventions that perform some new and useful function. They are, reportedly, the most sought-after type of patent. Ninety-two percent of all patents applied for are utility patents. They last for 20 years;
• Design Patents: A design patent protects the ornamental design of a functional object. They last for 17 years;
• Plant Patents: A plant patent protects a newly invented or discovered asexually reproduced variety of plant. The plant should not be a plant that is propagated by a tuber or a plant that is found in an uncultivated state. These last for 14 years.

Regardless of the type of patent, patent infringement consists of unauthorized parties making use of the patented property of another. In determining whether patent infringement has occurred, a court usually compares the subject matter covered by the patent with the subject matter used by the party who is alleged to have infringed on the patent.

The alternative to patent infringement is to seek permission from a patent owner to make some use of the patented property. This gives the owner the opportunity to grant a license of some type to authorize the use that a non-owner wishes to make.

What Are the Different Types of Patent Infringement?

Patent infringement is any manufacture, sale, or use of a patented invention that is not authorized by the patent owner. Patent infringement is often categorized as either direct or indirect.

Direct Patent Infringement

Direct patent infringement is reportedly the most common type of infringement. A claim of direct infringement means an entity without authorization makes, uses or sells a patented invention.

Indirect Patent Infringement

Indirect infringement is the second form of patent infringement and there are two types of indirect infringement:

• Infringement by Inducement: This is any activity by a third party that causes another person to directly infringe on a patent. This can include selling parts that can only be used for a patented invention, selling an invention with instructions on how to use it in a certain way that infringes on a method patent, or licensing an invention that is covered by another’s patent.
  • The person who induces another to directly infringe on a patent must knowingly assist the infringement, but does not have to intend to infringe on the patent.
• Contributory infringement: This is considered another kind of indirect patent infringement. It consists of the selling of material components that have been made for use only in a patented invention and can have no other commercial use. Contributory infringement is viewed as requiring a higher level of guilt. To be guilty of contributory infringement, a seller must intend direct infringement on the patent. In order for a person or entity to be liable for indirect infringement, there must also be direct infringement resulting from the indirect act.

What Are My Remedies If a Patent Has Been Infringed?

The owner of a patent must file a lawsuit for patent infringement in a civil court. Patent infringement lawsuits can lead to significantly higher damage awards than other types of lawsuits. Certain statutes, like the Patent Act, allow the patent’s owner to recover damages. The remedies available in a patent infringement suit can include monetary relief, equitable relief, and possibly costs and attorney’s fees.

Monetary Relief

Monetary relief, in the form of compensatory damages, is available as a remedy for patent infringement:

• Compensatory Damages: The two main kinds of damages in patent infringement actions are reasonable royalties and lost profits. A reasonable royalty is the fair market value of a license that the infringer should have purchased from the patent owner, had the infringer proceeded in a legal manner. The money paid for the license is referred to as “royalties.”
  • A patent owner may also recover money to compensate for any profits they lost because of the infringement. It is important to keep in mind that the Patent Act does not limit damages to certain types. A judge can award other kinds of damages that may be appropriate given the facts of the case;
• Increased Damages: Up to three times the value of compensatory damages can be recovered if the patent owner can prove that the infringement was intentional;
• Time Period for Damages: Rights to damages can be claimed only after the date the patent was issued and extends back only 6 years from filing of lawsuit to recover damages.

Equitable Relief

Injunctions are orders issued by a court that direct a person or entity to do something or not do some act. Injunctions are available in two forms:

• Preliminary Injunctions: These are court orders made in the early stages of a lawsuit or petition which prohibit the parties from doing some act which is in dispute, e.g. manufacturing and marketing a patented product without a license. So, when a patent owner first files a complaint for infringement, they might seek a preliminary injunction prohibiting the infringement;
• Permanent Injunctions: These are orders of a court that are permanent and direct a person or entity to discontinue doing certain activities or take certain actions. A patent owner might obtain a permanent injunction at the conclusion of an infringement lawsuit;
• Attorney Fees and Costs: A person who wins a patent infringement case can also recover attorney fees and costs from the entity they sue, the “defendant” in legal terminology.

Do I Need a Patent Lawyer?

Patent infringement is a technical and complex issue. A patent attorney can help you apply for a patent, determine if you have a patent or advise you as to whether there has been infringement. Of course, your lawyer can advise you of the best course of action to take and represent you in court, if that should become necessary