An issued patent gives the patent holder the “right to exclude others from making, using or selling the invention throughout the United States” and its territories and possessions. Without a patent, there is typically no protection for an idea or invention. There are three general types of patents: design patents, utility patents (which includes software patents), and plant patents. Patent infringement is governed by federal law.
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. 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 the claims of a patent are read against an accused practice, they may be so close to identical that infringement is clear. Alternatively, 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 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.
Anyone who makes, uses, offers for sale, sells, or imports a product that reads upon a patent, either directly or the equivalent, is liable for patent infringement. If a person actively encourages another to make, use, or sell the invention, that person is liable for indirect infringement. Contributory infringement can be committed by knowingly selling or supplying an item for which the only use is in connection with a patent invention. Good faith or ignorance is no defense for direct infringement, but it can be for indirect or contributory infringement.
Possible remedies for patent infringement are:
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- Injunctive relief
- Damages
- Treble damages for willful infringement
- Attorneys’ fees in some cases