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Patent infringement

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Patent infringement occurs when someone performs an unauthorized act regarding a patented invention. This means a person or company uses a protected idea without getting permission from the patent holder. Permission is usually given through a legal agreement called a license. Infringement can involve many different actions. A person might make a patented product or use it for their own work. They might also offer the product for sale, sell it, or import it into a country. If the patent covers a process, infringement includes using or selling the products made by that specific process.

To understand the boundaries of a patent, one must look at its claims. The claims are the specific parts of a patent that define the scope of protection. They tell the public exactly what the inventor controls. When experts check for infringement, they use a process called "reading" a claim onto a technology. This means they compare the elements listed in the patent claim to the features of the new product. If every single element from the claim is present in the technology, the claim is said to "read on" that technology. If even one element is missing, it generally does not constitute literal infringement. However, a rule called the doctrine of equivalents may still apply in some cases.

Patents are territorial in nature. This means a patent only provides protection within the specific country or region that issued it. For example, a patent granted in the United States prevents unauthorized use within the U.S. borders. However, people in other countries may be free to use that same invention in their own lands. The level of protection can vary between nations. This happens because different patent offices have different requirements for what can be patented. Some offices perform a substantive examination to check an invention, while others do not.

When a party is accused of infringement, they often present several defenses. One defense is asserting that they are not actually practicing the patented invention. They might also argue that their actions took place outside the territory covered by the patent. Another common defense is that the patent has expired. All patents have a limited lifetime or patent term. A party might also claim the patent is invalid. This could be because the invention failed to meet patentability requirements or had a formal defect. Finally, a person might prove they already have a license to use the invention.

In some legal systems, a concept called indirect infringement exists. This occurs when a third party provides a product that is specifically intended for a certain use. For instance, if a patent covers a specific device, a third party might infringe by supplying a product that can only reasonably be used to make that device. Disputes over these issues are often settled privately. Parties might enter a cross-licensing agreement to resolve the conflict. While settlements are common, some believe that going to court is helpful. Court cases can clarify the limits of patent protection or help by invalidating weak patents.

To avoid legal risks, many companies perform a clearance search. This is also known as a freedom-to-operate or FTO search. Professional searchers look through issued patents and pending applications to see if a new product might infringe on existing claims. These searches can even include expired patents, which act as a "safe harbor" because they are in the public domain. Following a search, a company might seek a clearance opinion. This is a legal opinion from an attorney regarding the risk of infringement. They might also request a validity and enforceability opinion. This analyzes whether a patent is legally sound and can be enforced in court.

These legal opinions can be quite expensive for businesses. According to a 2007 survey, the average cost for a validity opinion was over $15,000. Adding an infringement analysis could cost an additional $13,000. For complex technologies, these costs can reach hundreds of thousands of dollars. Because of these high risks, some entities use patent infringement insurance. This insurance helps protect inventors or third parties from the costs of accidentally infringing a patent. In 2006, a study for the European Commission looked into these insurance schemes. The study suggested that a mandatory scheme might be the only way to provide widespread economic benefits to the industry.

Different countries also have unique ways of handling patent laws. In Canada, courts use a method called purposive construction. This involves reading both the claims and the specifications to find the patent's true scope. In the United States, patent trials are heard by a jury, but in Canada, they are heard by a judge. Canada also allows a plaintiff to choose between receiving compensatory damages or an accounting of profits. In China, the government has established frameworks to increase punitive damages for those who commit egregious infringement. These various systems show how complex and global the world of intellectual property has become.

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