How to Start a Patent Infringement Analysis

service package

An Overview of Patent Infringement Analysis

Analysing or examining a product or process is violating a Patent assumes significance under different conditions varying from Patent enforcement to opening licensing opportunities. To carry out Patent Infringement Analysis, the process or product in question should be compared with Patent claims literally and by equivalence. Though the comparison of all parts of a given claim is usually followed across the globe, infringement jurisprudence varies from nation to nation. Assessing Patent Infringement and giving detailed infringement opinions needs a detailed understanding of Patent Law in various countries along with robust technology background.

When we discuss the analysis of Patent Infringement, some terms you will need to know to comprise the following:

  • An infringer or violator is an individual said to be responsible for violating someone’s new Patent;
  • Someone who helps in the creation or sale of a patented invention is called a contributory infringer;
  • The "multi infringers" term is used when more than one party is accused of violating a similar Patent.

What is Patent Infringement?

When someone imports, uses, sells, or copies a product that someone else invented without consent, Patent Infringement has occurred.  Patent Infringement may be simple, but the act is illegal or unauthorised. In the event a Patent owner decides to sue, the court will often step in and stop the unauthorised activity from continuing and sometimes punish the violator with penalties like financial awards to the Patent owner. Since patented ideas or inventions often come with many sections or parts, it is possible to have several claims for Patent Infringement.

Different Types of Patent Infringement

  1. Direct Infringement: Someone creates or manufactures the product without the Patent owner's permission. The infringer or violator does not need to know that the Patent exists in order for the Patent holder to sue them for Direct Patent Infringement. That individual cannot make sell, import, or use a patented invention or creation whether or not they know a Patent exists.
  2. Indirect Infringement: The infringer didn't directly violate the Patent but may have encouraged or helped infringe on the Patent.
  3. Literal Infringement: To prove this type of Patent Infringement in court, all factors of a defendant's idea or device should be present in the patented one.
  4. Induced Infringement: This Patent Infringement refers to persuading someone to make a patented invention. This term is often used in a similar way as Indirect Infringement.
  5. Willful Infringement: It means that another individual or company deliberately used someone else patented products or ideas. A simple way to invalidate Willful Infringement is to hire a Patent Attorney, who most probably will notify their customer if the violation is about to occur. It's usual for a court to award treble damages or harms in cases of Willful Infringement, which can assist to prevent it due to their size.
  6. Contributory Infringement: Someone gives a part of a product to help someone infringe a Patent. That product or part should not have any other reasonable use.

What Constitutes Patent Infringement?

Before you find out if Patent Infringement has occurred, it is vital to find the Patent part that the inventor has ownership. A Patent will comprise a numbered list of each of the Patent claims and what Patent claims each investor owns. For a Patent Infringement case to be victorious, all claims listed in the Patent should be verified.

Apart from the claims, there will also be a section where the innovator is teaching how the public can use the invention or innovation. This section aids to explain what each of the Patent claims meant. This will assist in providing an illustration of what the inventor has actually created or invented. Both sections will be used to examine all the types of Infringement of a Patent, comprising cases concerning the different types of Patents such as Design, Plant, and Utility.

What are Patent Infringement Claims?

To be proficient at making Patent Infringement Claims, you will need to prove the invention that was used without your consent. To commence your claim, you have to begin by using your Patent file as your main resource. When you file a Patent claim, you are making or building the claim that someone has violated your Patent. You will need to begin by providing proof that your patented product or idea has been used. It is vital to remember that the new idea can be better or a little different from the actual idea and still constitute an Infringement.

During filing a Patent Infringement Claim, there is a difference between processes & methods. If an individual being infringed or accused on a method had used the method for at least 1 year before the filing of the actual Patent, then they may not be found responsible for Infringement.

Another vital part of analysing a Patent Infringement Claim is understanding the court procedures for building a Patent Infringement Claim. The 1st thing a court will do is determine if the Patent Infringement Claim can be considered appropriate. After the claim terms have been laid out, the court will decide whether the Patent Infringement Claims made are valid to the patented item.

When filing a Patent Infringement Claim:

  • The owner of a Patent should ensure that the meaning of their words is easy to understand & remember;
  • The Patent specification should be proficient at supporting the claim, not make a claim change;
  • Each infringement claims should be dissimilar from the earlier claims;
  • If there can be numerous ways to understand the specifications, you should use the one that makes a claim valid.

Patent Infringement Litigation – Meaning

The owner of a Patent is accountable for proving Patent Infringement. It is identical to the concept that a criminal suspect is non-guilty until proven guilty. The alleged infringer does not require the suspect is innocent. Expert witnesses are often used to aid prove guilt. Often Patent Litigation can be considered frightening because of its cost and uncertain result.

Unfortunately, many businesses are under the incorrect impression that when they get their approved Patent, they have earned full protection against Infringement. This is not always the suit, and when threatened, Patent owners are likely to go to court to safeguard their interest.

Patent Litigation must occur in federal court because Patents are IP, and the owner of Patent must sue within 6 months from when the alleged Infringement or violation occurs. Generally, a judge decides the result of the case instead of a jury.

  1. Question of Fact: It means that the charges may be decided by either a judge or a jury.
  2. Question of Law: It means that the judge has the final decision in the case, not a jury.

Since the Patent Litigation is a civil matter, the outcome of court cases will often result in rulings of financial damages or injunctions to stop the usage of Patent by another party. The outcomes of Patent Infringement cases from a party’s sale or use of a patented product without the consent of the Patent owner. Some Patent owners sue to stop the sale or use of their invention, while others look for damages for the illegal use that occurred.

For an infringement case to be heard, the Patent owner should file within the statute of limitations, which is six years from the infringement date. If filed after that, the case can be considered time-barred. When anyone uses your IP for commercial profits, your rights have been infringed. Unfortunately, Patent Litigation can be heavily cost, making it cost-prohibitive for many inventors to implement the recognition of their IPR (Intellectual Property Rights). Most infringers know this and hence have identified concern for the outcomes.

Defence to Patent Infringement

The most standard defence to Patent Infringement is that the Patent is not valid. A Patent could be inappropriate for a variety of reasons:

  • The Patent owner was false on the application;
  • An individual used the patented item or idea for unauthorised activity;
  • The Patent owner comprised misleading or false information on the Patent;
  • The Patent infringes antitrust & other competitive laws;
  • It didn’t meet uniqueness and non-obvious requirements.

The meet the requirement of uniqueness, the idea or product has to be new or original. The novelty requirement means that the invention is not just a modified version of an earlier design. Another common Patent Infringement defence is an argument that the Infringement that is alleged is not covered under the actual Patent claims.

In the case of Infringement, the individual who holds the Patent will be required to give evidence that the defendant or accused person has, in fact, violated or infringed the Patent. The legal ordinary held in a Patent Infringement Case is that it should be proven by a preponderance of the evidence. Simply, it means that there must be greater mass to the proof or evidence that tells the Infringement occurred.

Avoid Patent Infringement

If you are an investor/business owner, you need a proper budget to avoid Patent Infringement. It is a straight investment to save a lot of money in the future. Patent Infringement lawsuits are expensive and time-consuming. Patent Infringement is a growing and developing field, and many lawyers are willing to take cases in an emergency. They don’t get paid unless they win the case. Even if you own a small entity, someone could still sue you for Patent Infringement.

You are still in danger if a small business owns the Patent. Even if that company cannot afford to hire a Patent Attorney, it could ultimately be bought out by a giant company that can afford to bring a case. Don't assume you know every Patent and even Patent in their areas cannot possibly know every new Patents or technology for products that are not on the market. Just because you know a lot regarding your area doesn't mean you cannot unintentionally violate others Patents.

Penalties for Patent Infringement

If the court determines that the infringer is causing any damage before or at the time of the case, it could grant a preliminary injunction, which prevents the violator from continuing its actions. To have a preliminary injunction granted, the individual requesting the injunction should show the following:

  • The interest of the public will not be negatively affected if the injunction is granted;
  • There is a high chance to the case, which is possible to result in success;
  • There can be extra hardship to the Patent owner if the party violating is allowed to continue use at the time of litigation proceedings.

Preliminary injunctions can be hard and are not often granted unless there was adjudication earlier that showed Patent validation.

Other possible penalties comprise the following:

  • Damages: The court will generally require the violator to pay damages when the infringer is found guilty. These courts might comprise actual damages, reasonable royalties, or both. The real damages are the profits that the Patent owner lost to the infringer. Royalties depend more on the details of the products and the Patent validity.
  • Permanent Injunction: A court could decide to issue a permanent injunction or post-trial injunction if the infringer is found guilty. This injunction makes the guilty party stop their actions totally. The court almost grants permanent injunction if the infringer is found guilty.
  • Costs: It is common in the cases of Patent Infringement for the infringer to pay costs. These costs comprise filing fees, court fees, and even lawyer fees for the Patent owner.

Why Swarit Advisors?

Our team of professionals and highly experienced Patent Attorneys perform Patent infringement identification, infringement searches, analysis, etc., to customers on a regular basis. Swarit Advisors have years of experience in helping clients acquire strong Patents, manage Patent Litigation, and avoid Infringement, and launch risk-free products.

Frequently Asked Questions

When someone imports, uses, sells, or copies a product that someone else invented without consent, Patent Infringement has occurred.

Direct Infringement, Indirect Infringement, Willful Infringement, Literal Infringement, Induced, and Contributory Infringement.

To avoid expensive & complicated Patent Litigation, the company should at least consider potential changes to the design of the product, avoiding those Patents.

Anyone who makes, offers, uses or sells any patented invention without taking any prior consent.

The subject matter, usefulness, novelty, originality, and the writing requirements.

Utility Patent, Design Patent, and Plant Patent.

To prove this Infringement, the Patent owner must prove that the defendant used, made, sold, offered for sale or imported the claimed invention.

Why Swarit Advisor?

Why Swarit Advisor
Swarit Advisors Private Limited


From Toronto Recently Purchased @FSSAI Basic