If you are not already aware, then a patent is a major part of intellectual property law. It protects the rights of inventors and discoveries that aid in the fields of science, technology, and other developments. Unlike copyright, which exists by virtue of the existence of a work, both patents and trademarks are IP protections that need to be applied for.
The process of gaining a patent for any invention is a long, grueling process. But it is worth it when you consider the massive personal and professional losses that can occur when someone uses a product that is patented by you. If you have a patent for your product, it is also important to understand how to use it to protect your invention.
Direct infringement occurs when an offender is involved in making, using, selling, or importing a product that utilizes the patented technology without obtaining any sort of license or permission from the patent holder. It is an act that is committed with full knowledge of what is happening, that is, it is not an unintentional infringement.
This is a form of infringement which (usually) takes place when the actions are performed by a company or an investing party. It includes induced and contributory infringement, and is an umbrella term to define patent infringement by means of attempting to create a patented item. It holds companies responsible for infringement even if they have not committed an act of direct infringement.
Contributory infringement is a form of indirect patent infringement in which a company either imports and/or purchases a piece of technology that will be used to create a patented item. In order to prove contributory infringement, it has to be proven that the main intention of purchase was to reproduce the patented technology.
Willful patent infringement occurs when someone infringes on another patent with complete disregard of its existence and under full knowledge that the technology is already patented by another body. This means, when someone recreates or copies a patented invention/technology willfully, without caring about the patent that protects it. It is one of the most damaging forms of patent infringement.
A literal infringement is proven when a link can be established between the infringing device/process and the device/process that holds the patent.
The Doctrine of Equivalents is a part of IP law that works in favor of the patent holder, even if there is no direct or willful infringement that occurs. That is to say, a judge might rule in favor of the patent holder, even if the infringing device/invention is outside the limits of the originally granted patent.
Many times, someone might commit a patent infringement without even being aware that their invention has a pre-existing patent. Other times, a device/invention similar to the patented one might be created in order to try and escape a patent infringement lawsuit.
In this case, the Doctrine of Equivalents steps in to allow a judge to take a call – if the functionality of the infringing device is same/fairly similar to the patented device, then the judge can rule in favour of the patent holder. The all-elements test helps to establish this. More often than not, it is advisable to file lawsuit against parties that are committing willful infringement and can be held accountable, and to settle with others.
With the help of Rahul Dev and the team’s expertise, you can better understand exactly how to protect your patent! Moreover, we are qualified to not only help you file for a patent, but to also help you contest any infringements that may occur.
Our team of advanced patent attorneys assists clients with patent searches, drafting patent applications, and patent (intellectual property) agreements, including licensing and non-disclosure agreements.
Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.
Quoted in and contributed to 50+ national & international publications (Bloomberg, FirstPost, SwissInfo, Outlook Money, Yahoo News, Times of India, Economic Times, Business Standard, Quartz, Global Legal Post, International Bar Association, LawAsia, BioSpectrum Asia, Digital News Asia, e27, Leaders Speak, Entrepreneur India, VCCircle, AutoTech).
Regularly invited to speak at international & national platforms (conferences, TV channels, seminars, corporate trainings, government workshops) on technology, patents, business strategy, legal developments, leadership & management.
Working closely with patent attorneys along with international law firms with significant experience with lawyers in Asia Pacific providing services to clients in US and Europe. Flagship services include international patent and trademark filings, patent services in India and global patent consulting services.
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