Understanding Patent Infringement and Your Options

Feb 13, 2020

Patent infringement isn't something that happens to other companies; it's something our patent consulting firm sees happening to every company. Whether it is an established company infringing a patent, or an upstart copycat, patent infringement can sink your bottom line. Worse still, substandard craftsmanship or flaws in the design can negatively affect the consumer's perception of the product, which can result in long-term damage to your company's reputation. When patent infringement occurs, your company must act quickly and decisively.

How Is Patent Infringement Determined?

Each invention must contain elements or components that make it unique. To prevail in a lawsuit, plaintiffs must establish that the opposing party stole at least one element of the design or process.

There are two types of infringement cases; Literal and Doctrine of Equivalents. A Literal infringement is essentially an exact copy of your product. It has the same design elements, function, and construction. The second type of infringement involves the Doctrine of Equivalents. This occurs when a significant number of elements of the patent or function of the product are similar to the original product.   

Taking Action to Stop the Theft

The first step a company should take is to issue a cease and desist letter that includes a copy of your patent or patent application if the patent is still pending. The message should be clear that you intend to pursue legal action if the company continues to infringe on your patent. If the patent is in effect, you can proceed to file the lawsuit immediately. If it is still pending, you must wait until the patent issues. 

In cases of accidental infringement, it is common for the other party to cease production and use of the item. However, not always. The cease and desist letter establishes a baseline that you can use should you need to prove willful infringement. It is proof that you have notified the company that their actions infringe your patent and have allowed them to stop voluntarily. If the company continues in its efforts, this constitutes willful infringement. When you prevail in your lawsuit, the law allows you to seek treble damages when willful infringement occurs. 

Proving Infringement in Court

The first thing a plaintiff needs to do is to establish who is infringing on the patent. This can be challenging because you need to identify the legal entity that stole the patent. Often, willful infringers mask their tracks very well. However, reviewing SEC filings, product catalogs, sales records, websites, etc. can help you track the trail and identify the responsible party to name in the lawsuit.

Next, the plaintiff must establish ownership of the patent. This is easy to do with a written assignment, which any patent consulting firm will tell you is critical to determining when filing the patent. If there is no written assignment, establishing grounds for your claim can be difficult, but not impossible. Once you determine ownership, you need to verify the validity of the patent.

Usually, it is the validity of the patent that is challenged in court by the defendant. Many will claim that the product/service is not eligible for a patent, or that the claims are obvious. They may argue that the specifications of the patent do not include sufficient detail or definition to justify the plaintiff's claims.       

Contact Global Patent Solutions at (877) 236-8105 for information about our patent consulting services. It is our pleasure to help you identify the most appropriate course of action to take when your patents are infringed.  



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