A patent is used as a protection for an idea or invention of a inventor. The United States Patent Trademark Office issues a patent after the inventor has filed it. A patent term is usually for 20 years from the time the application is filed. A patent is only effective within the United States.

Patenting is a time consuming process that can take as long as five years to complete. The process of getting a patent involves filing an application with the U.S. Patent and Trademark Office, paying the applicable fees, and responding to office actions.

What is Patent Infringement?

Patent infringement is a type of violation involving the unauthorized use, production, sale, or offer of sale of the subject matter of another’s patent. There are many different types of patents such as utility patents, design patents, and plant patents. The basic idea behind patent infringement is that unauthorized parties are not allowed to use the patent without the owner’s permission.

When determining whether patent infringement has occurred, a court will usually compare subject matter covered by the patent with the subject matter used by the “infringer.”  Infringement obviously occurs when the violator uses the same exact subject matter as the patented material.

What Are the Different Types of Patent Infringement?

Patent infringement is any unauthorized manufacture, sale, or use of a patented invention.  Patent infringement occurs either directly or indirectly.

Direct Patent Infringement

The most common form of infringement is direct infringement, where the claims of the patent literally describe the infringing invention or the invention performs substantially the same function.

Indirect Patent Infringement

The second form of patent infringement is indirect infringement, which is broken down into two types:

Infringement by inducement is any activity by a third party that causes another person to directly infringe on a patent. This can include selling parts that can only be realistically used for a patented invention, selling an invention with instructions on using in a certain method that infringes on a method patent, or licensing an invention that is covered by another’s patent. The inducer must knowingly aid the infringement, but intent to infringe on the patent is not required.

Contributory infringement is the selling of material components that have been made for use in a patented invention and have no other commercial use. There is a significant overlap with inducement, but contributory infringement requires a higher level of guilt. To be contributory infringing the seller must intend for the direct infringement to occur. In order for there to be liability for indirect infringement, there must also be direct infringement resulting from the indirect act.

What Are My Remedies If Patent Has Been Infringed?

Patent infringement lawsuits can lead to significantly higher damages awards than other types of lawsuits. Certain statutes, like the Patent Act, allow plaintiffs to recover damages. Patent infringement is the manufacture and/or use of an invention or improvement for which someone else owns a patent issued by the government, without obtaining the owner’s permission by contract, license or waiver. There are several remedies available to patent owners in the event of infringement.

The remedies available in a patent infringement suit can include monetary relief, equitable relief, and costs and attorney’s fees.

Monetary Relief

Monetary relief, in the form of compensatory damages, is available to remedy patent infringement:

  • Compensatory damages – A patent owner may recover lost profits for infringement once they have established the value of the patent
  • Increased damages – Up to three times the compensatory damages can be recovered in cases of willful or deliberate infringement
  • Time period for damages – Rights to damages can be claimed only after the date the patent was issued and extends back only 6 years from filing of the infringement claim

Equitable Relief

Injunctions are orders issued by a court ordering someone to do something or prohibiting some act. Injunctions are available in two forms:

  • Preliminary injunctions -Court orders made in the early stages of a lawsuit or petitions which prohibit the parties from doing an act which is in dispute (e.g. manufacturing patented product)
  • Permanent injunctions – Final orders of a court that a person or entity discontinue doing certain activities permanently or take certain actions

Attorney Fees

A person who wins a patent infringement case can also recover attorney fees and costs from the defendant.

Do I Need a Patent Lawyer?

Patent infringement is a very technical and complex issue. A patent attorney or intellectual property lawyer can help you determine if your rights have been infringed and also represent you in court.