Posted on August 18, 2023
Hi everyone, I’m J.D. Houvener, your host of the Bold Today’s Show where you, the inventor, entrepreneur, business owner, get your daily inspiration so you can make the world a better place. We’re in part three of our 10-part litigation series, covering today about infringement and direct infringement. On Monday, we learned about chain of title, you know, the fact that you, the inventor, or the entity itself has to prove that they are the true owner before they can bring an infringement case. And yesterday, we talked about what is the burden, right? What does the plaintiff have to show in order to bring their case successfully to the jury? And we found out it’s a preponderance of the evidence.
So today, we’re going to talk about the first type of infringement suit that’s called direct or literal infringement. And that’s what you think, right? This is the case where an infringer is performing all the elements of the patent. You’re able to demonstrate that what’s being done under the laws that you have a patent under, which is 35 USC Section 271, that someone is either making, using, selling, or importing into the US your patented product.
Now, aside from this direct literal interpretation, the courts have also given some leniency and allowed additional claims to be made for those that try to find loopholes in this law. It’s been done before. An example is an airplane kit where small parts of the airplane were not assembled here, and so the actual patented product of the airplane wasn’t manufactured here. What they did is they made all the little parts and shipped them over to Europe and then assembled the airplane. The court said, no, that’s not going to fly. You’re still liable for patent infringement in the US even though you tried to get around the law. There are also rules for process patents where you actually come up with a process for making a product. If that process is performed not in the US but overseas and then shipped into the US, now they’re still liable for patent infringement.
So this week, we’re talking about a lot of different types of ways that suits can be brought and infringement can be interpreted by the judges. So, if you have any questions about patents in general, how to even start the process, or you have a patent now and you want to get help with how to enforce your rights, give us a call.
