Associate Attorney
When you see a product or process that resembles your patented invention, you might wonder whether the manufacturer of that other product has infringed upon your patent rights. Determining whether you may have a patent infringement claim begins with understanding patent rights and how to evaluate whether a product or process falls within your patent’s scope.
Visual or functional similarities alone do not necessarily establish infringement. A patent infringement analysis generally requires comparing the specific claims of an enforceable patent against the accused product or process to determine whether each required claim limitation is present, either literally or, in some cases, through an equivalent.
Understanding Patent Infringement
A patent provides an inventor with the right to exclude others from making, using, offering to sell, selling, or importing the patented invention in the United States during the patent’s term. A party may commit patent infringement when they make, use, offer to sell, sell, or import a patented invention without the patent holder’s consent.
Patent infringement may occur when a party makes or sells an infringing product within the United States, imports an infringing product into the United States, or induces another party to infringe upon a patent.
Federal patent law, including 35 U.S.C. § 271, governs patent infringement in the United States. Depending on the circumstances, an intellectual property dispute may also involve other causes of action, but patent infringement itself is governed by federal law.
Elements of a Patent Infringement Claim
A patent infringement claim involves several legal components. First, the patent holder must allege direct or indirect infringement. Direct infringement occurs when a party makes, sells, offers to sell, imports, or uses a patented invention without the patent holder’s permission. Indirect infringement can occur when a party induces a third party to infringe upon a patent. Federal patent law also recognizes contributory infringement, which can arise in certain circumstances when a party supplies a component specifically intended for use in an infringing product or process.
Many patent infringement claims turn on claim construction, the process by which a court interprets the meaning and scope of a patent’s claims. Claim construction can define the scope of protection a patent offers and determine whether an accused product infringes upon the patent. Once the relevant claims have been interpreted, attorneys can compare them with the allegedly infringing product or process. Attorneys frequently organize this analysis through a claim chart that compares each limitation of the asserted patent claim with corresponding features of the accused product or process.
A patent holder may pursue a case under a theory of literal infringement or the doctrine of equivalents. Literal infringement occurs when the accused product or process contains every limitation of an asserted patent claim. It does not have to be identical to the patented invention in every respect; the question is whether it contains every limitation of the asserted claim.
Under the doctrine of equivalents, infringement may still occur when a claim limitation is not literally present but the corresponding element is legally considered equivalent. Courts may consider whether the differences are insubstantial or, in appropriate circumstances, whether the element performs substantially the same function in substantially the same way to achieve substantially the same result.
The Process of Investigating Potential Patent Infringement
Determining whether you may have a patent infringement claim requires thorough investigation and analysis. A patent infringement attorney can evaluate your case.
Investigating patent infringement begins with reviewing and analyzing the scope of your patent’s claims to determine the nature of the claimed invention. Once you’ve determined your patent’s scope, you can evaluate whether the accused product or process falls within the scope of your patent’s claims. This investigation may involve examining the accused product itself, technical specifications, product manuals, marketing materials, source code or manufacturing information when available, and other evidence showing how the product or process operates. The analysis should focus on the language of the patent claims rather than simply whether the competing product looks or functions similarly.
An experienced patent attorney can review your patent and the accused product to determine whether it might infringe under a theory of literal infringement or the doctrine of equivalents. An attorney can also identify potential defenses that the opposing party might raise in a patent infringement claim, such as:
- Non-Infringement – A defendant might show that their product or process does not contain every limitation of an asserted patent claim or does not contain an equivalent for a missing limitation.
- Prior Art and Invalidity – A defendant may challenge the validity of the asserted patent based on prior art, including arguments that the claimed invention was not novel or would have been obvious in light of existing technology.
- Non-Patentable Subject Matter – A defendant may also challenge patent validity by arguing that the claims cover subject matter that is not eligible for patent protection.
What Should You Do If You Suspect Patent Infringement?
If you believe another business is infringing your patent, gathering information before contacting the suspected infringer can help preserve your options. Keep records of the accused products, advertisements, technical materials, sales information, and other publicly available evidence that may be relevant to the infringement analysis.
Avoid assuming that similarity alone proves infringement. A patent attorney can evaluate the applicable claims, investigate the accused product or process, and assess the strengths and weaknesses of a potential infringement case before you decide how to proceed. Depending on the circumstances, possible next steps may include negotiating a licensing arrangement, sending formal correspondence, pursuing settlement discussions, or filing a patent infringement lawsuit.
Contact a Patent Litigation Attorney Today
When another party has infringed upon your patent, you need dedicated legal representation to help you fight to protect your rights and interests and seek compensation for the financial losses you’ve suffered. Patent infringement disputes can involve complicated technical evidence, claim construction, and questions concerning both infringement and patent validity. Getting legal advice early can help you understand the strength of your claim and determine an appropriate strategy.
Contact Sul Le Law Firm PLLC today for an initial consultation with a seasoned Texas patent litigation lawyer to determine whether you may have an infringement case.