Patent infringement
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Template:Limitedgeographicscope Template:Patent law In law, a patent infringement occurs when the subject-matter claimed in a patent has been utilized by someone other than the rightholder, without the owner's approval or in disagreement with the terms of use given by the owner. Depending on the patent laws in the country where the patent infringement has taken place, the owner of the patent may take action in equity or in law such as an injunction or lawsuit against those who did the infringement.
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Infringement under US Law
In U.S. law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported the infringing invention or its equivalent Template:Fn.
In U.S. law, no infringement action may be started until the patent is issued. Pre-grant protection may however be available in some countries. For instance, all European Patent Convention (EPC) signatories should allow an applicant to seek reasonable compensation for pre-grant infringement (Art. 67 (2) EPC [1]).
Direct infringement
A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent. 35 U.S.C. 271(a)
Indirect infringement
Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement". This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. In the U.S., types of "indirect infringement" include "contributory infringement" and "induced infringement".
In the United States, 35 U.S.C. § 271(b) defines (active) induced infringement: "Whoever actively induces infringement of a patent shall be liable as an infringer."
Active inducement of infringement
Under 35 U.S.C. Section 271(b), "whoever actively induces infringement of a patent shall be liable as an infringer." Thus, by selling products that only has use if used in an infringing way, the seller could be found liable for the direct infringement of the end user. This provision typically protects against those who aid and abet end users. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1195 (Fed. Cir. 1996). Further, there can be no inducement if there is not first a showing of direct infringement. Fuji Mach. Mfg. Co. v. Hover-Davis, Inc. 60 F.Supp. 2d 111, 117 (W.D.N.Y. 1999).
Defenses
The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. In case of a medical procedure patent issued after 1996, a U.S. infringer may also raise a statutory safe harbor defense to infringement.
Infringement under UK Law
Infringement under United Kingdom patent law is defined by Section 60 of the UK Patens Act 1977, which sets out the follow modes of infringement.
- Where the invention is a product, by the Making, Disposing of, Offering to dispose of, Using, Importing or Keeping a patented product.
- Where the invention is a process, by the use, or offer for use where it is known that the use of the process would be an infringement. Also, by the disposal of, offer to dispose of, use or import of a product obtained directly by maeans of that process, or the keeping of any such product whether for disposal or otherwise.
- By the supply, or offer to supply, in the United Kingdom, a person not entitled to work the invention, with any of the means, relating to an essential element of the invention, for putting the invention into effect, when it is known (or it is reasonable to expect such knowledge) that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
References
- Kesan, Jay P. and Ball, Gwendolyn G., How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes (2005). U Illinois Law & Economics Research Paper [2]
See also
- Adverse inference
- Anton Piller order (common procedure in certain countries to obtain proofs of infringement)
- Cease and desist order
- Clearance search and opinion
- Doctrine of equivalents
- Exculpatory opinion
- Inequitable conduct
- Patent defense
- Patent infringement insurance
- Patent retaliation (clause)
- Patent troll
- Patent watch
- Research exemption
Notes
- Template:Fnb (U.S. specific citation) “[F]or a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device.” Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed. Cir. 1994).
- See Phillips For the Federal Circuits most recent opinion regarding claim construction.
- IP Dragon focused on IPR in China including patent infringements.