A patent is a form of intellectual property protection that provides the owner with the legal right to exclude other individuals from making, using, or selling the property for a specified period of time. In exchange for these patent protections, the owner of a patent publishes a detailed disclosure of their invention.
The United States Patent and Trademark Office (USPTO) issues patents after an inventor has filed a provisional patent application that outlines the concept that the inventor wants to patent. After the inventor files their provisional patent application, the invention is considered patent-pending.
At this point in the process, an inventor has the right to sue another individual who makes use of that patent-pending property. Once an inventor receives a provisional patent, it is valid for 1 year.
During that year, the inventor is required to file a regular patent application to prolong their patent protection. At this time, the inventor will typically make a public announcement of the patent-pending status of their invention in order to inform their competitors.
Once the USPTO issues a patent, the owner of the patent has the legal authority to enforce the patent. Patents typically last for 20 years.
They must be renewed if the owner wants them to continue beyond that time period. If they are not renewed, the patent will expire and the invention will become available for general use.
There are quite a few different types of patents that are available. They include the following:
- Utility patents: A utility patent protects an invention that performs some new and useful function. They last for 20 years. They are, reportedly, the most sought-after type of patent;
- Ninety-two percent of all patents applied for are utility patents;
- Design patents: A design patent protects the ornamental design of a functional object;
- They last for 17 years; and
- Plant patents: A plant patent protects a newly invented or discovered asexually reproduced variety of plant;
It is important to note that, simply because an individual owns a patent, it does not mean that the patent will be automatically enforced. The USPTO grants patents, but it is ultimately the patent holder’s responsibility to enforce the patent.
This is accomplished by filing a lawsuit in a civil court of law.
What is a Patent Lawsuit?
A patent lawsuit is a type of lawsuit that involves intellectual property issues. The majority of patent lawsuits involve the illegal or unauthorized use of a patent or patented material.
These types of lawsuits are generally referred to as patent infringement lawsuits. Proving patent infringement has occurred is generally a complex process that involves several steps.
For example, this type of case involves determining the scope of the patent’s protection and examining whether or not the defendant infringed upon those protections. In addition, the plaintiff will be required to prove that they suffered losses as a result of the infringement.
What is Patent Infringement?
Patent infringement occurs when a party that does not own a patent makes an unauthorized use of patented property, which may involve:
- The production of a patented item;
- The sale of the patented item; or
- An offer to sell the subject matter of an entity’s patent.
Regardless of the type of patent that an entity owns, patent infringement consists of an unauthorized party making use of the patented property of another party. When determining whether patent infringement has occurred, a court typically compares the subject matter covered by the patent with the subject matter used by the party who is alleged to have infringed on the patent.
One available alternative to patent infringement is to seek permission from the patent owner to make use of the patented property. This provides the patent with the owner the opportunity to grant some type of license to authorize the use that a non-owner requested.
How Do I Know if Someone Infringed on My Patent?
Whether or not a patent is considered infringed upon depends on the scope of the claims of that patent. The claims contained in a patent define an invention.
Because of this, those claims also define the scope of protection that the invention receives. In order to constitute infringement, a second invention must infringe on every claim that is made in the patent.
There are two steps that must be followed to determine whether or not a new invention infringes on an existing patent, including:
- Determine the scope and meaning of the claims in the patent; and
- Determine if the new invention infringes on those claims.
Does the New Invention have to be Identical to My Invention to Infringe on My Patent?
Although it may seem that new inventions would have to be duplicates of existing inventions in order to infringe, it is usually sufficient for a new invention to be substantially similar to an existing invention. Inventions may infringe on a patent in two ways, including:
- Literally: The claims of a patent directly describe the invention that is infringing; and
- Doctrine of equivalents: The infringing invention does not fall under the patent’s claims, but it performs the same functions in order to achieve the same result. In addition, every element of every claim of the invention has some corresponding equivalent in the infringing invention.
What Remedies Are Available in a Patent Lawsuit?
Remedies that are available in patent lawsuits may include patent infringement damages. These damages are intended to reimburse the patent owner for any losses that were caused by the infringement.
For example, A defendant may be required to pay damages for lost profits as well as lost business clientele. Patent infringement damages must be:
- Provable, or not speculative in nature; and
- Supported by evidence.
Another available remedy in a patent lawsuit is an injunction to have the offending party stop producing or using the patented material. The party may be required to:
- Pull their products from a marketing line;
- Change a recipe or formula; or
- Take other similar actions.
It is important to note that related materials may be subject to confiscation.
Are There Any Legal Defenses in a Patent Lawsuit?
There are several patent infringement defenses that may be available to a defendant, depending on the facts of their case. For example, a defendant may be able to show that they were actually authorized to use the patent or patented invention.
If the defendant can provide proof of consent from the patent owner for its usage, it will relieve them of liability. Other patent infringement defenses may include:
- An invalid patent;
- Unfair or inequitable conduct on the part of the plaintiff;
- A delay in filing the lawsuit; or
- Other defenses that apply specifically the type of patent involved.
Do I Need a Lawyer for Help with a Patent Lawsuit?
If you have a patent and you need assistance with a patent lawsuit or defending a patent infringement claim, it may be helpful to consult with a patent lawyer. Your lawyer can provide you with legal advice and counsel regarding your patent as well as help you file a lawsuit if your parent is being infringed upon.
Having an attorney on your case can help ensure that your patent is protected and you receive the appropriate legal remedy for your case. If you have been accused of patent infringement, it is important to have the assistance of a lawyer who can help prevent you from paying damages when you did not infringe on a patent.