Getting a patent issued is a lengthy undertaking in its own right. It can easily take months of dedicated work just to write the patent application, argue with the patent examiner, and reach a successful outcome.
But, while your focus remains on the start of your patent journey, the process doesn’t end once your patent is issued. Once you have it, you have to protect it. And then, you hear those dreaded words: patent infringement.
What qualifies as patent infringement, and what can you do to deal with it? Here’s a quick and easy guide to help you protect your most important IP.
What is patent infringement?
A patent is a grant of property rights to an inventor by a sovereign authority. In plain English, a governmental body (the United States Patent and Trademark Office, in the U.S.) grants an inventor the exclusive rights to the patented process, design, or invention for a period of years.
Under 35 U.S.C. § 271, anyone other than the patent owner who makes, sells, offers to sell, or uses a patented invention within the U.S. during the patent period infringes on the patent. Similarly, anyone who induces such acts commits patent infringement, and anyone who knowingly sells or offers to sell a component part of the patented process, design, or material is liable as a contributory infringer.
Basically, you as the patent owner have the exclusive right to make, use, and sell the patent. Anyone else who tries to do so is infringing on your patent.
Sounds simple enough, right? Not exactly.
Understanding patent claims
The key element of patent infringement is delineating the exact invention that you own. And that delineation is staked out in the claims section of your patent. The claims are the key in determining whether or not someone is infringing your patented invention.
Every patent has two parts: the part you teach your invention, and the part you define the invention you own. Patent claims are the part you own.
In US patent practice, the patent application includes a Specification, Claims, an Abstract, and Drawings. Basically, the Specification and Drawings describe and illustrate your invention, the Abstract provides a summary of your invention, and the Claims define the metes and bounds of the invention that you own.
For example, while your Specification and Drawings might describe the concept of a levitating car in general, your Claims might only include a propulsion system specifically for use with a levitating car. In this way, the invention you would own with your issued patent would be for the propulsion system, not the whole levitating car.
Oftentimes, the Claims section looks like a complicated list, filled with convoluted legalese. That’s because there’s an art and a science to writing patent claims, requiring knowledge of legal conventions. For example, words like “comprising” and even “or” have very specific interpretations based on case law.
Claims must be specific enough to adequately define the invention, while being broad enough to cover reasonable variations and modifications. They must also be easily understood, and they must be supported by your description and drawings. Also, claim drafting practice differs from country to country. Unless you’ve had training in the writing of patent claims for a specific country, we’d recommend you get the help of a patent professional.
Claims in the infringement assessment
In order to prove that someone infringed on your patent, you have to prove that they acted in violation of your patent claims. That is, you’ll have to prove the infringer built and sold a levitating car including the propulsion system defined in your patent claims, not just built any old levitating car.
A key part of the infringement assessment at the courts is claim construction. In claim construction, the court breaks down the exact details of your claim wording, including the patent’s written description, the prosecution history, and any extrinsic evidence needed to understand what the claims mean. This process might involve, for example, interpreting each element (or even word) of the claim according to how that element is described in the Specification, then cross-referencing a corresponding item in the allegedly infringing item.
To be clear, the inventor’s understanding of your patent is only one side of the claim construction. The court would take into account both the inventor’s and the alleged infringer’s interpretations of the claims, as well as the court’s own reading of your patent in light of the various arguments you’d presented to the USPTO examiner while trying to get your patent allowed.
As with any other element of the patent process, patent infringement can quickly turn into a legal minefield. Your best bet is to work with an experienced IP professional in writing the patent claims in your patent application, with a view toward both protecting your innovation while taking into consideration the patents surrounding your invention. Also, a thorough knowledge of your competitors’ IP portfolios can guide you in how you approach your own IP strategy.
We get it. Patents are hard. We’re here to give you peace of mind, with expert patent services that make it easy to develop and defend your IP so that you can position your business to succeed. In plain English, we handle the hard stuff so you can focus on the big ideas.
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