Guide of Patent Protection

One of the questions that patent holders may have is “who can be sued in a patent infringement lawsuit?” By law, any person who makes, uses, offers or sells something that is protected by a current patent, or who imports into the United States anything that is protected by a current patent, is guilty of patent infringement. Likewise, anyone that makes, uses, offers or sells any product or process that intentionally contributes to it is guilty of infringement as well. Finally, anyone who induces any action that infringes upon a current patent is guilty.

If a company makes a new product that infringes upon an existing and in force patent, it is infringing upon that patent and can be sued. If a company creates a product that relies on a patented process without the permission of the person owning that patent, they are guilty and can be sued. In addition, the law can be interpreted to extend to any store or company that sells a product or process that is protected by a patent, as well as anyone who purchases and uses that product or process.

In other words, if AB Electronic Games were to create a new game system that used as part of its design the joystick that is patented by YZ Game Company, AB Electronic Games may be infringing upon YZ’s patent and can be sued for that infringement.

Likewise, if YZ Game Company had patented a process that only allowed its games to be played on a game system manufactured by them, and AB Company came along and made an adapter using that process so that YZ’s games could be played on any game system, they could be opening themselves to a patent infringement lawsuit. In addition, YZ Game Company would be within its rights to sue every retailer that sold AB’s games or adapter, and every single person that used one of AB’s games or adapters.

In reality, however, it’s seldom practical to sue individuals who buy or use a product that infringes upon another’s patent. Most patent owners will choose to sue the manufacturing company, the inventor or the importer of the product. Some judges will disallow patent infringement lawsuits against certain classes of defendants for various reasons. In many cases, the laws which cover these lawsuits and their interpretation vary from jurisdiction to jurisdiction. Determining who can and should be sued, and on what grounds they can be sued is not always easy for a layman. Even lawyers who don’t specialize in patent infringement law may find it difficult to determine who can actually be sued in a particular instance.

Experienced patent infringement lawyers understand the current case law and how the U.S. Patent laws have been applied in patent infringement cases throughout the years. This is more true today than ever before, with the number of patent infringement lawsuits increasing with each passing year. Decisions that have been handed down in cases over the past five to ten years have opened the existing patent laws to new interpretations that can be utilized in a lawsuit by experts in the field.

If you are considering a patent infringement lawsuit or believe that your rights as a patent holder are being infringed upon, it’s important to consult with a law firm of patent infringement lawyers who are familiar enough with the current case law and interpretations to evaluate your case on its merits. A good attorney can not only help you determine who can be sued for infringing upon your patent, but may see grounds for a suit that you or a less experienced lawyer might not recognize.

This is a matter that the courts take very seriously. If your invention is being used in whole or in part by someone else who does not have your permission, your rights as a patent holder are being infringed upon. When you bring a successful suit against the infringer, you may be able to:

- Stop future infringements when a judge orders an injunction against further use, sale or offer of the infringing invention or product

- Recover the cost, which may include projected future profits lost due to the infringement

- Recover certain litigation costs

- Recover attorney’s fees

- Be awarded punitive damages that may amount to triple the judgment for actual damages

A law firm that specializes in this kind of litigation is the best judge of whether you have a good case of patent infringement. If you believe that your patent rights are being infringed upon, contact a patent infringement lawyer for a consultation to evaluate your case for a lawsuit.

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Patent law is one of the most specialized branches of the law.

If you have been named in a patent infringement case or believe that you may have a case to pursue compensation and relief for patent infringement on a patent that you hold, a firm of experienced patent infringement lawyers is your best resource for information.

There are, however, a few principles of patent infringement litigation that are helpful to know. Among the most helpful to understand in building your case are the defenses to patent infringement that are most often used in patent infringement cases. The two basic defenses to a patent infringement lawsuit are non-infringement and invalid patent.

Non-infringement defense to patent infringement lawsuits:

In the first, the defendant tries to prove that their product or process does not infringe upon the existing valid patent for one or more reasons. It is usually the first line of defense to be considered. There is an infringement upon a patent when each “claim” in the patent is matched by an element of the infringing product. If the item that is claimed to be infringing does not match each of the claims in the patent, the case may be dismissed because no infringement exists.

In order to prove whether a device or process infringes upon the named patent, the judge or other examiner will first do a careful reading of the claims of the patent. Suppose the patent is for a device that has the purpose of extending the waistband of a skirt by means of an extension of fabric that is fitted with a buttonhole on one end of the extension and a button on the other.

A second company produces a product which consists of a fabric extension that has a buttonhole on one end, and three buttons at various points on the extension so that it can be adjusted to fit the waistband more accurately. The examiner must examine each of the “claims” made in the patent and then match them to the elements of the device in question. In this case, the examiner may find that patent infringement does exist because each of the claims in the patent is matched to an element in the infringing device, which is actually a modification of the patented process.

Invalid patent defense to patent infringement lawsuits

The other most common tack in patent infringement lawsuits is an attempt to invalidate the patent on one or more grounds. In order for there to be a judgment of infringement, their must exist a valid patent; it must be in force at the time of the alleged infringement; and it must meet all the conditions for obtaining a valid patent.

While one might assume that the very issuance of a patent would substantiate its validity, that’s often not the case. There are a number of things that might invalidate an existing patent.

1. A prior art or novelty search may turn up descriptions or depictions of the patented application that existed before the date of invention. In this case, the patent may be invalidated because the application or item was not the first depiction of the device. The description or depiction must give enough detail that a person of “reasonable skill” could make or work the device based on that description.

2. The defense may hold that the patent is for a use or device that would have been obvious to anyone with reasonable knowledge or skill. If obviousness can be proved, then the patent may be invalidated and no infringement can have taken place.

3. The defense may charge that the patent holder did not exercise diligence in pursuing the patent application process. Most often, this charge will be brought if the patent’s original application was outside the grace period allowed after publication of the patented idea or device.

4. The defense may argue that the subject of the patent is not a suitable subject for patenting.

Those are the most commonly claimed grounds to invalidate a patent in patent infringement cases, but there are many other grounds which could be used to defend against a charge of patent infringement.

In addition, the interpretation of patent law and the definitions of the elements of patent law frequently undergo changes during the course of court cases. As the number of patent infringement cases continues to mount, new defenses are being tried and old ones struck down.

If you are involved in a patent infringement lawsuit or are considering one yourself, it’s important to have an experienced professional on your side.

Consult a law firm that specializes in patent infringement cases to get a thoughtful and realistic evaluation of your chances.

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