Many inventors and entrepreneurs believe that having a patent means they are “protected.” Having a patent just means you have a patent – whether someone infringes the patent (and you can actually enforce the patent) is a completely different question.
The costs of patent enforcement are staggeringly high. Which is why there is patent insurance that covers any type of patent-related litigation.
What is patent infringement?
Patent infringement is when someone violates someone else’s patents. This is found in 35 USC 271.
If you own a patent and another company starts selling your patented product or performing your patented method, your patent is being infringed. Or that is what you probably think.
Every patent has two distinct parts: the specification and the claims. The specification is the description of the invention. The claims are what you get to enforce.
If someone infringes your patent, they must infringe your *claims* not your *specification.* Just because your patent application described your competitor’s product does not mean you can enforce your patent – what matters is what the claims say.
Every patent begins with an inventor developing an idea or design for something unique. Before you file your patent, you have trade secret rights to the invention. By protecting your rights under trade secret law, you can share the invention under a Non-Disclosure Agreement, and you protect your idea by suing someone under Trade Secret law.
A patent changes your invention from a trade secret to something public, and as an incentive to show the world your trade secrets, the government give you the right to enforce your patent through the “claims” of the patent.
The typical patent application will become published at 18 months. This is to comply with foreign patent laws if you want to obtain patents in foreign countries. If you do not want patents in foreign countries, you can elect to not have your patents published in the US.
The patent examination process is a back-and-forth process between you (or your attorney) and a patent examiner.
During the examination process, you will argue about the claims, but not the specification.
Once the examiner allows your claims, you will have the right to enforce those claims against any infringer.
It is crucial to understand that simply owning a patent does not guarantee that it will be enforced.
There is no “patent police” that checks to see who is infringing someone’s patents and automatically brings them to court. Patent infringement is a civil issue, meaning that only the patent holder can enforce their patent.
Different Forms of Patent Infringement
Other parties may infringe on your patent in a variety of ways, including:
- Direct Infringement: A patent-protected product is created/sold/imported without permission. This is the best type of infringement to enforce, because it is clear-cut.
- Indirect Infringement: This comes in two flavors: contributory infringement and induced infringement. Indirect infringement is harder to prove because there are extraneous factors.
- Induced Infringement: There is no direct infringement by the infringer, but their product causes or induces someone else to infringe. An example might be a company that provides a product that causes a consumer to perform an infringing method, especially when the product instructions specify the patented method.
- Contributory Infringement: This is a little further removed from induced infringement. The infringer knowingly manufactures a product that is used by a direct infringer, and the product can only be used in an infringing manner. For example, there is no contributory infringement for a nut and bolt manufacturer on an infringing product because a nut and bolt can be used in many other ways. If a manufacturer knows that their product violates someone else’s patent and there is no other practical use of the product, they are contributory infringers.
- Literal Infringement: This occurs when there is a significant correlation between the terms in the patent claims and the infringing device.
- Law of Equivalents: Sometimes, a product might not violate the patent claims word-for-word, but there may be infringement under the “law of equivalents.”
- Willful infringement: Willful infringement occurs when someone or a company knowingly and intentionally uses another person’s or firm’s patented ideas or products. When someone knowingly infringes, they are liable for triple damages. If you get a Freedom to Operate Opinion from your attorney, that is usually evidence of no willful infringement.