What is a Patent?
A patent is a set of exclusive rights granted to a person by the government for a fixed period of 20 years from the earliest filing date. The patent itself is an idea and a description of the invention including art and drawings. A patent excludes others from making, selling, using or importing the product for a certain time period. The person who chooses to obtain a patent does not have to be the creator of the idea or invention.
The incentives for patents are based on economic analysis. Patents ensure that you will be able to recover all the time and money spent to develop an innovative product for the common good of man and progression of science. Over the past two decades, the patent has become an imperative tool in protecting research and development of ideas.
What is Patent Infringement?
The term “infringement” means an encroachment upon the Intellectual Property or domain belonging to a patentee that is described by the claims of the applicant’s patent. Much like real property, intellectual property has boundaries. The claims of the patent are the boundaries of the intellectual property. Invasion onto a landowners property is called trespass, while invasion onto a patent holders intellectual property is called infringement. Both are civil wrongs or “torts.” Patent infringement, though, is governed by a federal law. Because of this, a defendant must be sued in Federal Court.
How is Patent Infringement Proved?
A determination of patent infringement involves a two part process. First, the claims are analyzed to determine the scope of the Intellectual Property. This process may require ordering the prosecution history of the patent and studying relevant documents. Second, the claims and the accused infringing item are analyzed to see that the accused device or process “reads” on the patents claims.
Every requirement of each claim must be considered to see if each thing set out in the claim also appears in the accused device. If one or more things set forth in a claim is not present in the practice being reviewed, there is not literal infringement of that claim. On the other hand, if each thing which is set out in even one claim of the patent is present in the accused structure or process, then there is direct and literal infringement.
When literal infringement is found, that is normally the end of the inquiry. When the claims of a patent are read against an accused practice, they may be so close to identical that infringement is clear. Also, the accused practice may be so remote from the patent that there is no possibility of infringement. Very often, however, there are some differences, requiring further study. Sometimes, such differences are incorporated into a design after knowledge of a patent in an effort to avoid infringement. Then, the question presented is whether the accused device is sufficiently different from the patent to be held to be non- infringing. If it is too close to the patent, it will infringe. If the accused device is remote enough, it will not infringe.
Patent infringement is not a criminal offense but rather is subject to civil litigation. However, If willful infringement is determined, damages paid to the patent can be increased up to three times the actual amount of damages.
Contact an Attorney
If you are a patent owner and you believe you have a patent infringement claim or you are being accused of patent infringement and require assistance, hiring an experienced patent attorney is critical to ensure your legal rights are protected. Possible remedies for patent infringement include: Injunctive relief, Damages, Treble damages for willful infringement (directs the judge to multiply by three the amount of monetary damages awarded by the jury in those cases and to give judgment to the plaintiff in that tripled amount), and Attorneys’ fees in some cases. In order to collect the damages you rightly deserve or to protect yourself from wrongful accusations, hiring an experienced attorney can make all the difference.