Patent Infringement: What Inventors Need To Know

Inventors: Are You Abiding By Patent Infringement Laws?

As an inventor, protection in the form of a patent is always going to be a priority.

But what are the laws around patent infringement?

How do you know if you're walking a straight line and staying in the 'safe zone'?
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Defining Patent Infringement

Invention patent infringement is a violation that occurs as a result of the unauthorized and unsolicited sale, use or production of an already patented invention or invention idea.

Infringement also applies to offers for sale of an already patented invention. 

​The establishment of patent infringement laws ensure that other inventors and manufacturing companies can not reproduce, use or sell an invention or invention idea without the original inventor’s permission, waiver or license.  

With a valid patent for an invention, an inventor holds the sole right over the invention. By law, others are exempted from practicing or using the claimed invention or invention idea without prior permission.

An invention is usually covered by a patent for a maximum period of 20 years, starting from the date the patent application was filed with the United States Patent and Trademark Office (USPTO). Any party that uses or sells an invention that has been patented, within the patent term, and without prior permission of the original inventor, infringes on the patent of the said invention or invention idea.

The party that infringes on an invention patent is culpable by law. It should however be noted that a patent issued by the USPTO is only valid and effective in the United States.
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Specifically, a party infringes on a patent if said party sells, uses, offers to sell or imports a patented invention or invention idea without the permission of the patentee. Yet, an infringement action cannot begin if the invention patent has not been issued.

However, a provisional patent application grants an inventor adequate protection for his invention or invention idea, prior to the issuance of a patent for the invention.

With a “patent pending” status, the inventor can still get fair royalties in damages for any activity that infringes on his sole right on the invention before the issuance date of the patent. 

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Before Claiming Damages Over Provisional Patent Applications...

• The activities that infringe on the patent took place after the patent application has been published,
• The patented invention claims are adequately similar to those published in the patent application, and
• The party that infringed on the invention patent had prior knowledge of the patent application that was published. 

To adequately determine whether an infringement on a patent has taken place, the court often compares the subject matter covered in the original patent with the infringer’s subject matter.

A viable patent infringement occurs when the infringer utilizes the exact same subject matter as that used by the original patentee.

The success of a patent litigation depends largely on the identification of the right party to sue for the patent infringement. Patent infringement comes in different forms, and the obvious infringer is not entirely always the right party to sue. 
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Don't Break The Law...

Understand The Different Types Of Patent Infringement And Violations...

​The unauthorized use, distribution, or sale of an invention or invention idea that has been patented constitutes an infringement on the invention patent. Patent infringement has been classified into two major forms – the direct patent infringement and indirect patent infringement. 
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Direct Patent Infringement

Direct patent infringement is the most common and most obvious type of patent infringement.

Direct patent infringement takes up the largest percentage of instances of patent infringement.

In a direct patent infringement, the invention that infringes substantially performs similar functions as the original invention that was patented. As the name implies, an invention patent is directly infringed by the unauthorized use, reproduction or importation of a patented invention or invention idea, within the period of the patent.

A direct patent infringement holds even when the infringer is oblivious of the fact that the invention he is violating is patented. It also stands even if the infringer has no intention to infringe on the invention patent.
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Indirect Patent Infringement

The indirect patent infringement is divided into two major types – infringement by inducement and contributory infringement.
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• Infringement by inducement: this occurs when someone infringes on a patent directly as a result of a third party’s activities or actions. Here, the infringer is induced, aided or encouraged by another party to infringe on a patented invention. The sale of major parts that can only be put together to form an invention that has already been patented, and the sale of instructions or licenses that infringe on an already patented invention method constitute an infringement by inducement. For an infringement to occur by inducement, the infringement has to be consciously aided by the inducer. However, the intention to infringe on the invention patent is not a requirement.

• Contributory infringement: this involves the sale of components or materials that were specifically made to be used in an invention that has been patented. The components or materials must also have no other use commercially, before they can constitute as a contributory infringement. Also, for a contributory infringement to occur, the party selling the components or materials must have the intention to directly cause an infringement.  Although somewhat similar to an infringement by inducement, contributory infringement generally requires a substantially higher culpable intention level.

An indirect infringement liability occurs and is substantiated only when a direct infringement occurs as a result of an indirect action.

It may be easier to pinpoint a direct infringement on a patent and to file a lawsuit against a direct infringer of an invention patent than establishing an indirect patent infringement.

However, various consumers and end-users of products make up the parties that most often directly infringe on an invention patent. Filing lawsuits against consumers that unknowingly infringe on a patented invention can be financially infeasible and practically impossible. Hence, it would be more beneficial and pragmatic to file a lawsuit against parties that knowingly, but indirectly infringe on a patented invention, by inducing or contributing to the patent infringement.

By law, directly or indirectly infringing on an invention patent is an offense taken very seriously. It often results in the payment of huge amounts of money as damages in court. This can hitherto have a telling impact on the finances of the infringer. 
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How To Remedy Invention Patent Infringement

The patentee is entitled to a number of remedies under the US Patent Law when his invention is infringed upon.

There are lawsuits that can be filed in the occurrence of a patent infringement which can adequately ensure that significant amount of money is awarded as damages to the patentee.

​There are different types of remedies available to a patentee in the occurrence of an infringement. These include:

• Monetary compensation,
• Equitable relief, and
• Recovery of attorney fees.

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Remedy 1: Monetary Compensation

A party that infringes on an invention patent can be mandated to pay damages, as a form of monetary compensation to the patentee for the infringement on his invention patent.

The patentee can therefore recover profits lost as a result of the patent infringement after establishing a suitable patent value.

The profits lost due to patent infringement are determined using a “but for” analysis. That is, the inventor could have made a certain amount of money as profits from the invention but for the patent infringement.
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In the case of an intentional or conscious patent infringement, the patentee can be entitled to more monetary compensations in form of royalties.

​Sometimes, these compensatory damages can be as high as three times the normal patent value. However, the legal right to claim damages on a patent infringement occurs after the issuance date of the patent and only extends six years backwards, from the date the infringement claim was filed. 
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Remedy 2: Equitable Relief

The patentee can obtain an injunction from the court to prohibit other parties from infringing on his patented invention or against the continued sale or reproduction of the patented invention.

There are two forms of injunctions available to the inventor. These are the preliminary injunction and the permanent injunction.
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Preliminary injunctions are court orders issued to prevent parties from infringing on a patent at an early stage of a petition or lawsuit.

​Permanent injunctions on the other hand are the final court orders mandating another inventor or manufacturing company from infringing on a patent and discontinue sales or reproduction. 

Remedy 3: Recovery Of Attorney Fees

An inventor can recover the money spent on filing a lawsuit and the associated attorney fees from the infringer after a successful patent infringement lawsuit.

​This ensures that an inventor can fully pursue a patent infringement lawsuit to the latter without having to worry about the associated costs.
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Obeying Patent Infringement And Violation Law

The laws governing patent infringement are highly complicated and technical.

Usually, to successfully interpret the patent laws as regards patent infringements, an attorney that specializes in patent infringements is usually required.

Hiring a patent infringement attorney ensures that a proper lawsuit is filed and the apt infringers are sued. This in turn aids the presentation of an effective and waterproof case, ensuring a successful outcome and adequate compensation.
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For an inventor, it is imperative to carry out sound and effective researches about related inventions to ensure that their invention does not infringe upon an already patented invention or invention idea.

Deliberate and accidental violation of patent laws ensure adequate punishment and payment of royalties in damages; although accidental violations are less severe. 

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