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Encyclopedia > Patent infringement
Patent law



More patent law articles…
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Intellectual property law
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A patent provides the proprietor of that patent with the right to exclude others from utilizing the invention claimed in that patent. Should a person utilize that invention, without the permission of the patent proprietor, they may infringe that patent. A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and... The history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474. ... Patents are legal instruments intended for controlling technology-driven socio-economic progress and providing a general benefit for the society as a whole. ... Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ... It has been suggested that Licensing (strategic alliance) be merged into this article or section. ... European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. ... Japanese patent law is referred to as Tokkyo hou in Japanese. ... The United States patent law is a first-to-invent patent legal framework in contrast to all other national patent laws. ... This is a list of legal concepts relating to patents, including special types of patents and patent applications. ... Image File history File links Scale_of_justice. ... In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. ... Like John says copyright law in the UK is u make something and its copyrighted but in america u must make a patent haaaa ... Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. ... Related rights is a term in copyright law, used in opposition to the term authors rights. The term neighbouring rights is exactly equivalent, and a more literal translation of the original French droits voisins. ... A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and... A trademark, trade mark, ™ or ® [1] is a distinctive sign of some kind which is used by a business to uniquely identify itself and its products and services to consumers, and to distinguish the business and its products or services from those of other businesses. ... A geographical indication (sometimes abbreviated to GI) is a name or sign used on certain products or which corresponds to a specific geographical location or origin (eg. ... Industrial design rights are intellectual property rights that protect the visual design of objects that are not purely utilitarian. ... A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information used by a business to obtain an advantage over competitors within the same industry or profession. ... Pronunciation SOO-eye jen-ER-ihs Sui generis is a (post) Latin expression, literally meaning of its own kind/genus or unique in its characteristics. ... Database rights are a form of exclusive right introduced by European Union Law to those countries which follow EU Law in 1996. ... A mask work is a two or three-dimensional layout of an integrated circuit (IC), i. ... Plant breeders rights, also known as plant variety rights (PVR), are intellectual property rights granted to the breeder of a new variety of plant. ... In European Union member countries, a supplementary protection certificate (SPC) is a sui generis, patent-like, intellectual property right. ... Traditional knowledge (TK), indigenous knowledge (IK), and local knowledge generally refer to the matured long-standing traditions and practices of certain regional, indigenous, or local communities. ... A patent is a set of exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and... An invention is an object, patent, process, or technique which displays an element of novelty. ... Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ...

Contents

Legislation

United Kingdom

Infringement under United Kingdom patent law is defined by Section 60 of the UK Patents Act 1977 (as amended), which sets out the following types of infringement.

  • Where the invention is a product, by the Making, Disposing of, Offering to dispose of, Using, Importing or Keeping a patented product.
  • Where the invention is a process, by the use, or offer for use where it is known that the use of the process would be an infringement. Also, by the disposal of, offer to dispose of, use or import of a product obtained directly by means of that process, or the keeping of any such product whether for disposal or otherwise.
  • By the supply, or offer to supply, in the United Kingdom, a person not entitled to work the invention, with any of the means, relating to an essential element of the invention, for putting the invention into effect, when it is known (or it is reasonable to expect such knowledge) that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.

An action for infringement can only be brought after grant of the patent, but damages can be recovered under Section 69 for infringing acts conducted after publication of the application, but before grant, provided those acts infringe the claims both as published and as granted, and provided the defendant can be shown to have been aware of the existence of the patent (or patent application). The protection conferred by publication of the application is known as provisional protection. Publication of European applications and PCT applications confers provisional protection in the same manner, provided the application is published in English. In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... The Patent Cooperation Treaty (PCT) provides a unified procedure for filing patent applications to protect inventions internationally. ...


Remedies

A claimant for infringement may be awarded a range of remedies (under section 61), depending on the facts of the particular case. Damages may be awarded to rectify financial harm suffered, an injunction may be granted to prevent further action by the infringer, an account of profits may be ordered, an order for the delivery up or destruction of infringing items may be made or a declaration that the patent is valid and infringed may be granted to the patentee. Both damages and an account of profits may not be ordered in respect of the same infringement(section 61(2)). Limitations on damages or costs may apply under certain circumstances, for example if the defendant was unaware of the patent's existence (section 62) or where the patent was subject to a transaction that was not registered at the Patent Office within 6 months (section 68). In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ...


United States

In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. [1] An invention is an object, patent, process, or technique which displays an element of novelty. ... The doctrine of equivalents is a legal rule in most of the worlds patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent...


In U.S. law, no infringement action may be started until the patent is issued. However, pre-grant protection is available in the U.S. In the U.S., 35 USC 154(d) allows for a patent applicant to obtain a reasonable royalty for infringing activities before a patent is granted. This right to obtain provisional damages requires a patent holder to show that the infringing activities occurred after the publication of the patent application 18 months from filing, that the published application is substantially identical to the eventually granted patent, and that the infringer has "notice" of the published patent application.


Direct infringement

A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent. [2]


Indirect infringement

Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement". This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. In the U.S., types of "indirect infringement" include "contributory infringement" and "induced infringement".


In the United States, 35 U.S.C. § 271(b) defines (active) induced infringement: "Whoever actively induces infringement of a patent shall be liable as an infringer."


Active inducement of infringement

Under 35 U.S.C. Section 271(b), "whoever actively induces infringement of a patent shall be liable as an infringer." Thus, by selling products that only has use if used in an infringing way, the seller could be found liable for the direct infringement of the end user. This provision typically protects against those who aid and abet end users. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1195 (Fed. Cir. 1996). Further, there can be no inducement if there is not first a showing of direct infringement. Fuji Mach. Mfg. Co. v. Hover-Davis, Inc. 60 F.Supp. 2d 111, 117 (W.D.N.Y. 1999).


Defenses

The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. In case of a medical procedure patent issued after 1996, a U.S. infringer may also raise a statutory safe harbor defense to infringement. In patent law, the research exemption or safe harbour exemption is an exemption to the rights conferred by patents, which is especially relevant to drugs. ...


Research for "purely philosophical" inquiry is not an infringement, but research directed to commercial purposes is - unless the research is directed toward obtaining approval of the Food and Drug Administration (FDA) for introduction of a generic version of a patented drug. The Food and Drug Administration (FDA) is an agency of the United States Department of Health and Human Services and is responsible for regulating food (humans and animal), dietary supplements, drugs (human and animal), cosmetics, medical devices (human and animal) and radiation emitting devices (including non-medical devices), biologics, and...


Remedies

Under US law, a patent owner is entitled to the larger of either a reasonable royalty or lost profits that result from infringement of their patent. Reasonableness is determined by the standard practices of the particular industry that the invention is in. Lost profits are determined by a "but for" analysis. (e.g. "My client would have made X dollars in profit but for the infringement of his/her patent.)


If an infringer is found to have deliberately infringed a patent (i.e. "willful" infringement), then punitive damages can be assessed up to three times the actual damages. Legal fees can also be assessed.


An infringer can also be enjoined from further infringement of the patent, even to the point of being forced to remove an infringing product from the market.


Clearance search and opinion

A clearance search is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. These searches are often performed by one or more professional patent searchers who are under the direction of one or more patent attorneys. A patent is a set of exclusive rights granted by a government to an inventor or applicant for a limited amount of time (normally maximum 20 years from the filing date, depending on extension). ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ... A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing an opposition. ...


A clearance search is normally followed by a clearance opinion, i.e. legal opinion provided by one or more patent attorneys as to whether a given item or process infringes the claims of one or more issued patents or pending patent applications. Clearance opinions may be done in combination with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable.


The cost of these opinions for U.S. patents can run from 10's of thousands of dollars to 100's of thousands of dollars or more, depending upon the particular patent in question and the amount of money at stake if the patent is infringed.


Patent infringement insurance

Patent infringement insurance is an insurance policy provided by one or more insurance companies to protect either an inventor or a third party from the risks of inadvertently infringing a patent. The examples and perspective in this article or section may not represent a worldwide view. ... An inventor is a person who creates new inventions, typically technical devices such as mechanical, electrical or software devices or methods. ...


For inventors, patent infringement insurance covers their legal costs in case they have to sue an infringer to enforce their patent.


For third parties, patent infringement insurance covers their legal costs in case they are sued for patent infringement by an inventor.


Patent infringement insurance is generally considered too expensive to be worth it. The premiums must be high, however, due, at least in part, to the high legal costs of patent infringement cases. A typical patent infringement case in the US costs 1 - 3 million dollars in legal fees for each side. This is despite the fact that 99% of all patent infringement cases are settled. Legal fees in pharmaceutical cases can run 30 million dollars or more due to the fact that billions of dollars may be at stake.


Piracy

Since the 1840's, the expression "patent pirate" has been used as a pejorative term to describe those that infringe a patent and refuse to acknowledge the priority of the inventor. Samuel F. B. Morse, inventor of the telegraph, for example, complained in a letter to friend in 1848 [3] // Events and Trends Technology First use of general anesthesia in an operation, by Crawford Long The first electrical telegraph sent by Samuel Morse on May 24, 1844 from Baltimore to Washington, D.C.. War, peace and politics First signing of the Treaty of Waitangi (Te Tiriti o Waitangi) on February... A word or phrase is pejorative if it implies contempt or disapproval. ... An inventor is a person who creates new inventions, typically technical devices such as mechanical, electrical or software devices or methods. ... Samuel Finley Breese Morse (April 27, 1791 – April 2, 1872) was an American, the inventor of the Morse Code and a painter of portraits and historic scenes. ... Telegraphy (from the Greek words tele = far away and grapho = write) is the long distance transmission of written messages without physical transport of letters, originally over wire. ... 1848 is a leap year starting on Saturday of the Gregorian calendar. ...

I have been so constantly under the necessity of watching the movements of the most unprincipled set of pirates I have ever known, that all my time has been occupied in defense, in putting evidence into something like legal shape that I am the inventor of the Electro-Magnetic Telegraph!! Would you have believed it ten years ago that a question could be raised on that subject?

Those who accuse others of being patent pirates say that they take advantage of the high cost of enforcing a patent to willfully infringe valid patents with impunity, knowing that the average small inventor does not have the financial resources required to enforce their patent rights. In the US, for example, an inventor must budget $1 million or more in order to initiate patent litigation. They say that patent pirates also take advantage of countries where patent rights are difficult to enforce and willfully infringe in those countries.


Ironically, the term "pirate" has also been used to describe patent owners that vigorously enforce their patents. [4] (See also patent troll) Thus whether one deliberately infringes a patent or whether one vigorously enforces a patent, they may be referred to as a pirate by those that feel they are overstepping their bounds. Patent troll is a derogatory term used to describe a patent owner, frequently a small company, which enforces patent rights against accused infringers, but does not manufacture products or supply services based on the patents in question. ...


References

  • Kesan, Jay P. and Ball, Gwendolyn G., How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes (2005). U Illinois Law & Economics Research Paper [1]
  • See Phillips For the Federal Circuits most recent opinion regarding claim construction.
  • IP Dragon focused on IPR in China including patent infringements.
  • China Law Blog Frequent commentary on China IP law.

Notes

  1. ^ (U.S. specific citation) “[F]or a court to find infringement, the plaintiff must show the presence of every element or its substantial equivalent in the accused device.” Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed. Cir. 1994)
  2. ^ 35 U.S.C. 271(a)
  3. ^ www.fullbooks.com, Samuel F. B. Morse, His Letters and Journals by Samuel F. B. Morse, Part 5 out of 9, retrieved on June 10, 2006
  4. ^ see Testimony by Harold C. Wegner, Professor of Law and Director, Intellectual Property Law Program, George Washington University National Law Center before the US Senate Wednesday, March 9, 1994

See also

See List of patent legal concepts for articles on various legal aspects of patents, including special types of patents and patent applications. This is a list of legal concepts relating to patents, including special types of patents and patent applications. ...

In British and British-derived legal systems, an Anton Piller order (frequently misspelt as Anton Pillar order) is a court order which provides for the right to search premises without prior warning. ... Cease-and-desist is a legal term meaning essentially stop: It is used in demands for a person or organization to stop doing something (to cease and desist from doing it). ... This article may contain original research or unverified claims. ... In United States patent law, inequitable conduct includes the following: (a) failure to submit prior art likely to be deemed relevant; (b) failure to explain references in a foreign language or submit pre-existing full or partial translations of the references; (c) misstatements of fact, including misstatements in affidavits concerning... Patent retaliation clauses are included in several free software licenses, including version 3 of the GNU General Public License. ... Patent troll is a derogatory term used to describe a patent owner, frequently a small company, which enforces patent rights against accused infringers, but does not manufacture products or supply services based on the patents in question. ... Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... Software hoarding is the creation of proprietary software products based on free software code. ... Copyright infringement is the unauthorized use of copyright material in a manner that violates one of the original copyright owners exclusive rights, such as the right to reproduce or Media:Example. ... Trademark infringement is a violation of the exclusive rights attaching to a registered trademark without the authorisation of the trademark owner or any licensees (provided that such authorization was within the scope of the license). ...

Notable infringement cases

To meet Wikipedias quality standards, this article or section may require cleanup. ...

External links

  • Intellectual property links

 
 

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