Copyright or patent infringement has always been a serious crime. However, given the rise of the internet and the ability of just about anyone to release creative content for consumption, it has become a very hot topic.
From social media networks like YouTube and Instagram to niched platforms for things like art and music, website administrators and business owners have started strictly monitoring user activity for all types of infringement. Offenders are then dealt according to the website’s own rules and guidelines.
Knowing how to invent something is all well and good, but how to keep said invention safe is critical knowledge you must have.
In this article, we’ll focus on patent infringement. What is it, how can you identify it, and what should you do to circumvent it?
What is Patent Infringement?
Patent infringement is defined as “the commission of a prohibited act with respect to a patented invention.” Simply put, it’s when another party—i.e., one who does not legally own the patent to the invention—tries to make, use, or sell a patented item without the explicit permission of the legal patent holder.
There are different elements that constitute patent infringement, as well as different types of patent infringement. We’ll cover those in detail later on.
It’s usually not a question of whether or not a patent is being infringed, however. More often than not, the question is how many people are infringing the patent.
Market Monitoring: Dealing with Patent Infringement
After one gets a patent granted from the government, the next step is enforcing the patent for its active lifetime of 20 years from the filing date (or 15 years from date of issue, for design patents).
There are obviously different kinds of patents, like design patents and utility patents. Many inventors are uncertain of the legal elements of inventing, and they don’t know things like how to patent a design or invention. This is where the USPTO (United States Patent and Trademark Office) comes in.
The USPTO provides useful information regarding selecting, obtaining, and securing patents. They also act as the gatekeeper to acquiring patent rights.
However, it is important to note that the USPTO does not actively enforce your patent rights for you. You, as the inventor, must take the necessary steps to enforce your patent rights.
Don’t worry; you don’t need to do it alone.
Many patent attorneys, like the ones at Bold Patents, are more than happy to help inventors assess situations and determine whether or not patent infringement is occurring through a process called market monitoring. Aside from providing legal advice on how to patent an idea, they are also qualified to support and enforce your patent rights.
Monitoring the market for potential infringers is a constant process that business owners and inventors simply don’t have the time to do properly. But patent attorneys know how to monitor the market, how to do a patent search, and how to perform all other related processes. They also have the means and resources to do so with ease.
Have you often found yourself wondering; how much does a patent cost? If so, just know that legal exclusive rights to your invention don’t come cheap. Patents are a part of IP (intellectual property) that can prove to be very costly if mishandled. Therefore, hiring a qualified professional to function as the enforcer/protector of your IP is definitely key to keeping your invention safe.
Internal Check: Make sure Your Patent Claims are Valid First
Before addressing the extent to which a patent may be infringed, it is important to establish that the patent is still valid.
Take for example; patents from the dot com era. These patents, directed to the abstract idea of using generic computer implementations to perform fundamental functions like software for escrow services, are no longer valid.
It is completely possible for a patent the USPTO granted this year to be invalidated the next due to patent laws or specific precedential court cases changing the interpretation of certain laws.
This is why we cannot stress how important it is that you work with a patent attorney. Many people believe that patent brokers can take the place of patent attorneys. This is not so. A patent attorney can assess the specific wording in your claim and find potential loopholes, redundancies, and other issues that a patent agent can very easily miss. Knowing the language of the law is essential—knowledge a licensed patent attorney undoubtedly has.
The end product that you receive from your attorney—should you choose to hire one—is called a validity opinion, and this plays a crucial role in deciding whether your patent is enforceable or whether your product is infringing on an existing enforceable patent.
Patent Infringement: Types of Infringement
There are two major types of infringement: direct and indirect. Indirect infringement can be further broken down into two categories: induced or contributory.
Infringement can also either be literal (infringing product or act reads on the patented claim language) or covered by the Doctrine of Equivalents. The Doctrine of Equivalents can be relied upon to show infringement when the alleged infringing product or act achieves substantially the same result, performs substantially the same function, and operates in substantially the same way.
Putting your potential infringers on notice is also a huge tool to use to get extra damages as a Plaintiff. If a defendant is put on notice that you have an enforceable patent right and they ignore it, treble damages (up to three times actual damages) are available when the patent owner can show that the infringer acted willfully.
Again; this is why you should search something along the lines of “patent attorney near me,” when faced with a potential infringement case. Patent attorneys can advise you on the course of action that will prove most beneficial for you.
Direct infringement, as defined by Section 271(a) of the Patent Act (Chapter 35 of the United States Code), states the basic rule of patent infringement:
“Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefore, infringes the patent.”
NOTE: The statute does not require any proof of access to the inventor’s work or any intent to infringe. This means that ignorance will not be tolerated. Excuses along the lines of “I didn’t know!” are not valid. Whether they knew about the underlying patent right or not, they will be held liable.
Indirect infringement is also covered under the Patent Act. As we mentioned earlier, there are two subcategories: contributory and induced.
To better illustrate indirect contributory infringement, picture this scenario:
Someone makes a component of a patented flashlight. Then they try to argue that they didn’t commit patent infringement because they only used, sold, or reproduced a part of the flashlight.
Their argument still won’t hold up.
If the products they are manufacturing, using, or selling are covered under the infringement claims, they can be held liable for contributory infringement.
Indirect induced infringement, on the other hand, happens when one incentivizes a third-party manufacturer to produce and/or sell goods that they know are covered under a patent right. The person who incentivizes is guilty of inducing an innocent party to commit infringement, and they can be held solely liable for the infringement even if they didn’t actually perform any of the manufacturing, using, selling, or importing.
Willful Infringement: Treble Damages
Would-be infringers should also be wary of the provision for treble damages when a patentee is looking to file willful infringement.
Indeed, the Supreme Court decision in Halo v. Pulse, 136 S.Ct. 1923 (2016) arguably expands the scope of willful infringement to punish:
“the ‘wanton and malicious pirate’ who intentionally infringes another’s patent—with no doubts about its validity or any notion of a defense—for no purpose other than to steal the patentee’s business.”
The court will look at specific activity to determine whether or not their actions were “willful,” such as:
- whether the infringer deliberately copied the ideas or design of another;
- whether the infringer, when he knew of the other’s patent protection, investigated the scope of the patent and formed a good-faith belief that it was invalid or that it was not infringed;
- infringer’s behavior as a party to the litigation;
- infringer’s size and financial condition;
- closeness of the case;
- duration of infringer’s misconduct;
- remedial action by the infringer;
- infringer’s motivation for harm;
- infringer’s attempt to conceal misconduct.
Under Halo, a preliminary injunction may not be necessary to maintain a claim for willful infringement, but such pre-suit conduct may nonetheless be helpful to remediate ongoing or future infringement.
As an inventor or business owner, you need to know what constitutes different types of infringement. For instance; knowing how copyright infringement is defined will, consequently, also tell you how to avoid copyright infringement.
To recap here is what we covered in our patent infringement article:
Table of Contents:
- What is Patent Infringement?
- Market Monitoring: Dealing with Patent Infringement
- Internal Check: Make sure Your Patent Claims are Valid First
- Patent Infringement: Types of Infringement
- Willful Infringement: Treble Damages
If you are a patent owner who is concerned about possible patent infringement or you want to know more about the types of infringement (and what they could do to you), feel free to contact us at Bold IP today to schedule a free consultation! We’ll cover your situation, your options, and the best steps for you to take moving forward.