Patent Infringement

Patent infringement is defined as "whoever without authority makes, uses, or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent." (35 U.S.C. 271)

To "infringe" means to encroach upon in a way that violates law or the rights of another. Thus, patent infringement means an encroachment upon the domain belonging to a patent owner that is described by the claims of the patent. Because a patent gives its owner the right to exclude others from making, using, offering for sale, selling, or importing the patented invention, patent rights may be compared to real property rights. If a patent is like real property, such as land, the claims of the patent correspond to the boundary of the property as described in the deed. Similar to the land boundaries, the claims of a patent describe the boundary and scope of the patent rights. Similar to trespass, which is the invasion of the boundaries of the landowner, patent infringement is the invasion of the boundaries the patent owner's patent rights.

A determination of patent infringement involves a two-step patent infringement analysis process. The first step of determining patent infringement is to analyze all the relevant patent documents. The second step of patent infringement analysis is to determine whether the claims of the patent "read on" the accused device or process. Generally stated, these two steps compare an accused device or process with the claims of a patent in order to determine infringement. This analysis will result in an answer to the following question: Whether the claims of the patent describe the accused infringement. If the answer is yes, then there is infringement of the patent, if the answer in no, the answer may be no, but there may be infringement under the doctrine of equivalents. In order to prove infringement under the doctrine of equivalents, if a claim element is not present in an accused device, then that element must be present as an equivalent, and the equivalent is an insubstantial variation of the claimed element.

Patent infringement may be if the form of direct, indirect, or contributory infringement.

Direct Infringement- If a person makes, uses, or sells the patented invention, that person is a direct infringer.
Indirect Infringement- If a person actively encourages another to make, use, or sell the invention, that person is liable for indirect infringement.
Contributory Infringement- If a person knowingly sells or supplies an item for which the only use is in connection with a patented invention, that person is liable for contributory infringement.

Good faith or ignorance is not a defense for direct infringement, but it can be for indirect or contributory infringement.

It is recommended to contact a patent attorney if you believe your patent is being infringed, or if another party accuses you of patent infringement. It is important to contact a patent attorney as soon as possible regarding your infringement, because time is of the essence in patent infringement litigation.

InventionPatent.Net- An intellectual property information resource for patents, trademarks, and copyrights, written and edited by Owen Smigelski, Esq.

As in-house counsel, I cannot provide legal advice or information to individual clients.
I recommend consulting with:
Raymond Wagenknecht
Biotech Beach Law Group PC
Toll Free: 886-875-9562
Tel: 619-238-1179
www.biotechbeachlaw.com