Consumers’ ever-growing demand for new and improved technology means a company that obtains a patent for a novel invention will have both a substantial competitive advantage and a valuable asset. As such, when a competitor infringes on a patent, taking court action may be crucial to protect your company’s revenue stream and the value of that asset.
Because patent litigation is very expensive, it is essential to conduct a careful analysis of your patent and the infringing invention before deciding to go to court. This article is intended to outline some preliminary steps prior to taking court action and how a patent case may potentially play out.
In the United States, patent infringement occurs when an unauthorized party makes, uses or offers to sell any patented invention within the country. This also applies to patented products imported into the United States. Thus, when a company suspects its patent is being infringed, it should first determine what their patented invention entails and then compare the patented invention with those of the accused infringing product.
The patented invention or the scope of protection of the patented invention are defined in the claims of the patent. Early in a patent case, a federal judge, not a jury, will conduct a Markman or claim construction hearing, during which the judge will interpret or construe the claims of a patent. For the construction of a claim, the terms in the claim are generally given their ordinary and customary meaning that they would have to a person of ordinary skill in the art at the time of the invention.
When the claims have been construed, then the patented invention can be compared with the accused infringing product to determine whether infringement exists. Literal infringement can only be found if every limitation recited in the claim appears in the accused infringing product. If there is no literal infringement, infringement may still be possible under the judicially created doctrine of equivalents. This court-mandated doctrine in essence holds that while the literal terms of a patent might not be infringed on by a competitor’s patented invention, the products might be so similar that the competitors’ product is equivalent to the patented invention and thus is infringing.
Think of a simple pain reliever, such as aspirin. The patented invention for such a medication includes a mix of different chemicals and additives with the intent to reduce pain. A competitor brews up a compound that acts in the same exact way to reduce pain but the recipe differs slightly in that one of the chemicals is different from the patented invention. A court could hold that while one of chemicals differs slightly, the chemical in the competitor’s product performs substantially the same function in the recipe as the chemical being used in the patented invention, and thus, the later drug is infringing on the original patent.
Read more...Northern Nevada Business Weekly (page 13-14).