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2 Common Types of Patent Infringement

Posted by Brandon Selinsky on Apr 29, 2017 9:07:12 AM
Brandon Selinsky
Patent Infringement

If a competitor is making, using, selling or importing a product that you have patented, you cannot standby andallow the infringement of your intellectual property rights.

Unauthorized use or selling of the product by your competitor is a violation of your right to exclude others from making, using or selling your patented invention.

In order to put a stop to infringement, you should first send a cease and desist letter that is prepared by a patent lawyer to the alleged infringer. If a letter does not put a stop to the infringing conduct, then a patent infringement lawsuit is the next step for enforcing your patent rights.

Types of Patent Infringement

When it comes to the infringement of patent rights, there are two main types of infringement. There is literal infringement,[1] which means that the allegedly infringing product infringes each and every claim limitation of an issued patent, and there is infringement under the doctrine of equivalents, which means the allegedly infringing product infringes the true scope of the patent holder’s invention.

Literal Infringement

In cases of literal infringement, it is often quite clear that the patent is being infringed. The infringing product literally has every feature that is in the claims of the patent. It is very infrequent that an infringer will unabashedly and directly copy and sell the exact same product as the patent holder - although copycat cases do occur, especially when the infringer is someone in another country. More often, when infringement disputes involving literal infringement escalate to the level of litigation, there is usually some other underlying issue or potential defense to the infringement allegations. For instance, the accused infringer might raise the defense that they have licensed the right to make or sell the product from the patent holder, or that the patent in question is invalid.

Experienced patent litigators will be able to analyze the patent claims, the allegedly infringing product and the defenses that are being raised by the accused infringer. No one should get away with infringing the patent rights of others.

Infringement Under the Doctrine of Equivalents

Infringement under the doctrine of equivalents is another common cause of action in patent litigation. The allegations are that the accused infringing product doesn’t necessarily meet every limitation in the claims contained in the issued patent, but the accused infringing product is an equivalent of the patented product. Under the doctrine of equivalents, if the two products are substantially the same, work in the same way and accomplish the same result, then the two products are equivalents of each other for the purposes of infringement under the doctrine of equivalents.

While the doctrine of equivalents may seem straight forward, in application this is hardly ever the case. What is and is not equivalent often comes down to a battle of the experts, with each side of the litigation strongly arguing for their position. You will need experienced patent litigation lawyers on your side to help champion your patent infringement claims.

When there is a chance that your intellectual property rights are being infringed, it is not a matter that should be taken lightly. Infringement can be a complicated legal concept to litigate, and an experienced patent litigation lawyer can help you fight to protect and enforce your patent rights.

[1] 35 USC Section 271.

Need help understanding your patent rights? Is someone infringing upon your patent? Our team of attorneys can help. Contact us today to gain a more in-depth familiarity with your patent rights.

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Topics: Intellectual Property