What constitutes evidence of copying in patent cases?
Evidence of copying in patent cases can take various forms. According to MPEP 716.06, the Federal Circuit in Wyers v. Master Lock Co. stated that copying “requires evidence of efforts to replicate a specific product.” This can be demonstrated through:
- Internal company documents
- Direct evidence such as disassembling a patented prototype
- Photographing its features and using the photograph as a blueprint to build a replica
- Access to the patented product combined with substantial similarity to the patented product
Additionally, evidence of access to a competitor’s non-public information and use of that information to develop a product can be persuasive evidence of copying, as seen in Liqwd, Inc. v. L’Oreal USA, Inc.
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