Omar Bennett
Patent infringement occurs when a party makes, constructs, uses, or sells a patented invention without the patent holder's permission. To determine infringement, a test is used to assess if the infringing product or process incorporates the features of an independent patent claim. This involves a reading of the claim onto the technology, and if all elements are present, the claim is said to read on the technology. Indirect infringement occurs when a third party supplies a product used to make a patented device, and direct infringement occurs when a single entity's product meets the limitations of an independent claim. To prove infringement, ownership and validity of the patent must be established, and the specific act of infringement and the infringer's identity must be identified. The doctrine of equivalents is also considered, where infringement occurs when each element of a patented invention is equivalent to an element in the allegedly infringing invention.
| Characteristics | Values |
|---|---|
| Direct infringement | A single entity’s product or service meets all the limitations of at least one independent claim in the patent |
| Indirect infringement | One entity causes or assists another entity to create a product or provide a service that meets all the limitations of at least one independent claim in the patent |
| Induced infringement | The infringer knows about the patent and knowingly causes the other party to directly infringe the patent |
| Contributory infringement | The infringer knowingly provides a component or product that helps the other party directly infringe the patent, and the component or product doesn’t have any substantial non-infringing use |
| Ownership | Proving ownership of a patent may require a considerable amount of documentation |
| Validity | Issued U.S. patents are presumed to be valid and enforceable by law |
| Infringing product or process | The infringing product or process incorporates all the material features of at least one independent patent claim |
| Clearance search | A search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications |
| Clearance opinion | A legal opinion provided by one or more patent attorneys as to whether a given product or process infringes the claims of one or more issued patents or pending patent applications |
| Doctrine of Equivalents | Infringement occurs when each element of a patented invention is equivalent to an element in the allegedly infringing invention |
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What You'll Learn
Indirect infringement
In certain jurisdictions, indirect infringement is recognised as a specific type of patent infringement. For example, in the United States, indirect infringement can occur when a party supplies a substantial portion of the components of a patented invention without authorisation. This is established in WesternGeco LLC v. ION Geophysical Corp., 585 U.S. ___ (2018), where the Court held that the plaintiff could recover lost foreign profits as damages for this type of infringement.
To prove indirect infringement, a patent holder must demonstrate that the competing invention infringes on a specific claim within their patent. This involves conducting a detailed claims analysis and refuting the defendant's claims analysis. The doctrine of equivalents is a legal principle that may be applied in indirect infringement cases, where infringement occurs when each element of a patented invention is equivalent to an element in the allegedly infringing invention. This doctrine aims to balance the reliability of patent wording with protecting patent owners from those who intentionally avoid literal infringement.
To enforce a patent against a competitor in cases of indirect infringement, patent holders must typically demonstrate three things: the identity of the infringer, the specific act of infringement, and the similarity to one or more patent claims. This can be challenging when multiple entities are involved in the design, production, or distribution of a product. In such cases, patent holders must identify the involved entities and their specific roles.
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Doctrine of Equivalents
The "doctrine of equivalents" is a legal concept in patent law that addresses situations where an accused product or process does not literally infringe upon the claims of a patent but may still be considered infringing if it is equivalent in terms of its function, way, and result. This doctrine is applied when each element of a patented invention is equivalent to an element in the allegedly infringing invention.
The doctrine of equivalents is based on the idea that minor changes or substitutions to a patented invention should not allow someone to avoid infringement by making trivial modifications. It ensures that the scope of patent protection extends beyond the exact wording of the claims to capture equivalent structures or processes that perform the same function in substantially the same way to achieve the same result.
To determine whether an accused element is equivalent to a claimed element, the evaluation is done at the time of the alleged infringement, considering the state of the art at that time. This is important because technologies and scientific understanding may evolve, and what was considered essential at the time of the patent's issuance may be challenged later.
The doctrine of equivalents is subject to limitations. For example, the prior enforcement history of the patent and the plaintiff's past prosecution of the patent can influence its application. Additionally, the doctrine does not apply to changes so significant that the accused device operates on a substantially different principle, even if it falls within the literal words of the claim. This situation is sometimes referred to as the "Reverse Doctrine of Equivalents."
In summary, the doctrine of equivalents plays a crucial role in patent infringement cases by ensuring that minor variations in an accused product or process do not circumvent the protection afforded by a patent. It requires a careful analysis of the role played by each element in the context of the specific patent claim to determine if they are equivalent in function, way, and result.
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Ownership and validity
To prove patent infringement, ownership of the patent in question and the patent's validity must be established. In the United States, registration with the United States Patent and Trademark Office (USPTO) is the only way to prove ownership. This is usually demonstrated through a written assignment, although in some cases, proving ownership can be challenging. For example, if a written assignment was not executed correctly or if an inventor disputes the assignment, ownership can become an issue. Therefore, it is crucial to maintain meticulous records of ownership from the outset of the patent process.
The validity of a patent is often the subject of dispute in patent infringement cases. Issued US patents are presumed to be valid and enforceable by law. However, defendants in patent infringement lawsuits will typically challenge the validity of the patent. There are several reasons why a patent may be invalidated or held unenforceable, including:
- Claims are obvious or anticipated in view of prior art.
- The subject matter is not patent-eligible (e.g., abstract ideas).
- The patent holder included incorrect, misleading, or withheld material information during the application or prosecution.
- The patent specification does not provide sufficient written description or enabling detail to support the claims.
- The claims are ambiguous and unclear.
To defend against these challenges, it is essential to be prepared to argue for the validity of the patent, even against seemingly far-fetched arguments. This may involve conducting a detailed claims analysis and refuting the defendant's claims analysis. A validity opinion, provided by a patent attorney or agent, can offer insight into how a court might rule on the validity or enforceability of a patent.
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Contributory infringement
According to 35 U.S.C. § 271(c), a seller is liable as a contributory infringer if they offer to sell or sell within the United States, or import into the United States, a component of a patented product or process, knowing that it is especially made or adapted for use in infringing the patent, and the component does not have any reasonable non-infringing use.
The threshold requirement for a claim of contributory infringement is the existence of direct infringement. Additionally, the alleged contributory infringer must have known about the patent and that their actions would lead to infringement. The law is currently unsettled on the meaning of "substantial" non-infringing use, with some cases upholding contributory infringement despite the presence of some non-infringing uses.
In certain jurisdictions, contributory infringement may be considered a form of indirect infringement. For example, when a device is claimed in a patent, and a third party supplies a product that can only reasonably be used to make the claimed device, this could constitute contributory infringement.
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Induced infringement
- Actively encouraged infringement
- Knew that the acts they induced constituted patent infringement
- Their encouraging acts resulted in direct patent infringement
In other words, the alleged infringer must have taken affirmative steps to bring about direct infringement by another party. This can be proven through various forms of evidence, such as advertisements and user manuals, but it must be established that the inducement actually occurred.
In certain jurisdictions, indirect infringement can occur when a third party supplies a product that can only be reasonably used to make a patented device. For example, federal law states that supplying "all or a substantial portion of the components of a patented invention" without authorization from the patent holder can constitute patent infringement.
It's important to note that the specific requirements for proving induced infringement may vary depending on the jurisdiction and judge. In some cases, post-suit knowledge of patents and alleged infringement may be sufficient to maintain a claim for induced infringement. However, in other cases, only pre-suit knowledge may satisfy the knowledge requirement, and the plaintiff must show that the accused infringer knew about the alleged infringement before the onset of litigation.
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Frequently asked questions
Patent infringement occurs when a party makes, constructs, uses, or sells a patented invention without the patent holder's permission. This includes actively inducing infringement of a patent.
To prove patent infringement, the patent holder must first establish ownership and validity of the patent. Then, they must demonstrate that the infringing product or process incorporates all the features of at least one independent patent claim. This involves conducting a detailed claims analysis and comparing each element of the patent claim to the infringing product or process.
The Doctrine of Equivalents (DOE) is a legal doctrine that states that infringement occurs when an accused device or product includes elements that are equivalent to those in the patented invention, even if they are not identical. The DOE aims to balance the reliability of patent wording with protecting patent owners from those who intentionally skirt the bounds of literal infringement.
There are two main types of patent infringement: direct and indirect. Direct infringement occurs when a single entity's product or service meets all the limitations of at least one independent claim in the patent. Indirect infringement occurs when one entity causes or assists another entity to create a product or service that infringes the patent. Indirect infringement can be further categorized into induced and contributory infringement.
