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December 5, 2016
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All You Need To Know About Patent Infringement

patent infringement

What is patent infringement?

According to United States Patent and Trademark Office (USPTO) “Patent infringement is the act of making, using, selling, or offering to sell a patented invention, or importing into the United States a product covered by a claim of a patent without the permission of the patent owner”.

This means that before there can be a patent infringement, your works or products must have patent right. Patent is covered by federal law. So, you can file for patent infringement in any federal district court  in the United States.

How Do You Establish Patent Infringement?

To determine any form of infringement,  you have to carefully check the patents “claims”. The patent claims contain all the scopes of the patent. The scopes are what you compare with the infringer’s products. You can establish Patent infringement if both claims matches.

Another way of establishing infringement is “doctrine of equivalents”.  This means that even if your patent claims fails to explicitly show any violation on your patent, court can still find case of infringement. This happens if your patent and the infringer’s are much equal in how they work and function.

Possible Court Decision

If your lawsuit against the infringer is successful, the court can issue a court order called an injunction. It will prevent the infringer from current and future infringement.  This process thereby protects you from further damages.

Also, The court can help you and the infringer reach an arrangement. With this kind of arrangement, the infringer can continue to use your patent but with your permission.  In exchange for a licensing fee. This is a win-win situation.

Pursuing patent infringement can go two ways: it’s either you win or you lose depending on the defense option the infringer decides to take. The infringer can decide to:

  1. Deny that you have any proof that he/she has violates any patent claims.
  2. It is possible that the infringer takes responsibility and negotiates a deal for a licensing fee.
  3. Try to invalidate the patent by showing  references that points the patent is invalid.To do this, he/she will try to prove that the USPTO made a mistake issuing the patent.

What Could Go Wrong In Patent Infringement Lawsuits

There are three conditions that may require a court to dismiss your patent infringement lawsuit. Working with a patent attorney from the beginning, will help you see if there is  a loophole that could make the court declare your patent invalid.

  1. The court may conclude that the patent claim is not valid if it is shown that the claimed invention was disclosed in a prior patent or patents, a book, a magazine, a newspaper, a television show or movie, a webpage or other published work before the date of the claimed invention.
  2. Also the court may conclude that the patent claim is not valid if it is shown that the claimed invention was offered for sale in this country or was disclosed to the public more than one year before the application for the patent was filed.
  3. In addition, the court could find the patent invalid because it does not meet other statutory requirements, such as a sufficient written description of the invention, or because it does not describe subject matter that is patent eligible.


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Augusta Massey
Augusta Massey
Are you a coach or entrepreneur? Do you have legal questions or need help with your contract templates? It's okay, Augusta has got you covered. I will work with you through a 1-on-1 free consultation session to provide practical solutions that safeguard your business. Even if you already have a contract form but not sure it is comprehensive enough. We will audit, update or create detailed contracts that protects your business and money.