I gathered a couple of disused iPhones from my friends, dismantled them, and sold the iPhone chips to a professor in the engineering department. A month later, the rumor spread around campus that the professor had assembled an iNotebook, which was a good thing. Until two gentlemen showed up at my doorstep on my eighteenth birthday, flashing their Apple IDs. A few hours ago, I was a child, but now that I was an adult, I was doomed to bear the brunt of the law. After all, I had infringed on a patent.
What Is Patent Infringement?
A patent is a legal right granted to an inventor of a new product, idea, or process by an authorized government agency. This right lasts for fourteen to twenty years from the date of a patent application, depending on the type of patent, and prevents anyone else from carrying out any of the activities specified in the patent claim, allowing the patent owner to exploit his invention without competition commercially.
Patent infringement is a situation whereby a person, known as the infringer, carries out any activity that is prohibited with respect to a patent claim without the permission of the patentee. Such activities could be making, selling, using, or importing the patented product within the region to which the patent applies. For example, if a patent was issued in the US, a competitor in Germany can freely exploit the invention without any legal consequences, as he won’t be guilty of patent infringement.
Types Of Patent Infringement
- Direct Infringement
When the infringer duplicates, sells, uses, and imports the patented product without the permission of the patent owner, he’s liable for direct infringement.
- Literal Infringement
Usually, this is the most painful and annoying type of patent infringement. Imagine duplicating a patented invention feature for feature. It is similar to plagiarism in literature.
- Induced Infringement
This revolves around persuading or encouraging another person to violate a patent. The infringer will be roped into infringement lawsuits and penalized with a sufficient percentage of overall damages determined by law.
- Contributory Infringement
When an entity makes, sells, or imports a unique item specified in the patent claim, and the only obvious use of that item is the production of the patented invention, they have committed contributory infringement.
- Equivalent Infringement
This occurs when a competitor manufactures a good that is assembled using components that are significantly similar to the elements of the patent claim. It can also be viewed from the angle of the competitor’s product performing the same function or achieving the same result as the patented item. Relying on the case law known as the Doctrine of Equivalence (DOE), the aggrieved patentee can sue the suspect.
However, if the patent owner narrows the coverage of his patent claim at the stage of patent application but proceeds to broaden it later in order to have enough grounds to sue the accused, his lawsuit will be dismissed.
How To Avoid Patent Infringements
- Freedom to Operate (FTO) Search
Typically, the FTO is the liberty to implement your technology, market your product or commercialize your new invention. Undertaking an FTO search while your product is still in its conceptualization stage is risk-efficient and safer for your business. Typically, you yourself can look up patent search keywords related to your patent claims so as to find out if there are similar patents already in place. Although the freedom to operate is generally greater in less competitive industries such as interior decoration, you can always identify and omit patented features from your product and reduce the risk of patent infringement.
- Preliminary Patent Review
Although it is not as thorough as a full review, it can help you determine the likelihood of your product infringing on a patent upfront. If the similarities discovered by your attorney are minor and easily amenable, you may choose to make the changes they suggest and end your review at this point.
- Full Patent Review
When a preliminary patent review indicates a higher risk of patent infringement, it’s a good idea to ask your attorney for a full review. If your company operates in a field where patent litigation is common, and your business risks are in the millions of dollars, you should thoroughly examine multiple patent claims.
- Contact Your Competitors
For some reason, you may not find information regarding your competitors’ patent claims online. Or, you might have all the information you need but want extra assurance that you won’t be infringing on their patents. By reaching out to your competitors, you demonstrate due diligence, which the court will consider, should any charges be brought against you later. If your competitors agree that your product does not infringe on their patent now but go-ahead to file infringement claims afterward, they would be estopped (prevented from doing so by law).
Sometimes when the universe literally turns against you, you could implement these methods but land in a patent infringement lawsuit. That’s why you need a defensive patent insurance policy to protect you against financial risks that arise from patent infringement. Most defensive insurance policies are comprehensive, covering litigation fees, settlement fees, and damages (if you lose the case), so as long as you pay the premium regularly, you have nothing to worry about.
Patent Infringement Lawsuits
They are the easiest way to make or lose millions of dollars in the legal arena, from the costs of hiring a lawyer to the outrageous damages the court imposes on the loser. Most competent attorneys charge between $5000 to $15000 for a single patent infringement lawsuit.
Before you file patent violation charges against a business, ensure that your claims are valid and win-worthy; otherwise, you’ll lose money and suffer a dent in your company’s reputation. The most popular defenses against a patent infringement claim are proving the invalidity of the patent or proving that the accused product did not infringe on the accuser’s patent. Also, keep in mind that patent infringement is time-barred, meaning any lawsuit regarding this civil wrong must be set in motion within six years from the infringement date.
Interesting Cases Of Patent Infringement
The two smartphone giants have been taking turns slapping each other with patent lawsuits since April 2011, seeking and gaining damages of over $700 million in total across the Federal Circuit and the Supreme Court.
In 2007, i4i sued the giant tech company for incorporating the XML editing and processing feature into Ms. Word 2007, thereby infringing on i4i’s ‘449 patent. Surprisingly, the jury rejected Microsoft’s defense that the ‘449 patent was invalid and awarded i4i $200 million in damages.
TC Heartland, a food product company, incorporated in Indiana, allegedly imported infringing beverage sweeteners into Delaware. When Kraft Food sued TC Heartland, they contended that the case should be tried in Delaware because that was where the act of infringement was committed. At first, the Federal Circuit ruled in Kraft Food’s favor, but the Supreme Court reversed the judgment.
The jury ordered the world’s biggest chipmaker to pay VLSI $2.8 billion in 2021 for infringing on the latter’s patents. However, Intel rejected the verdict, claiming that the charges were too exorbitant, and sought a retrial.
Kellogg waited until Henry Perky died in 1908 __ and his two patents on his new cereal plus the machines used to produce them expired three years later__ before introducing Kellogg’s cereal. National Biscuit, the successor of Perky’s company, sued Kellogg for copying the shape and size of Perky’s cereal. Unfortunately, they lost the suit because the patents had expired. Therefore Kellogg was not guilty of infringement.
Damages For Patent Infringement
- Lost Profits
The court awards lost profits when the plaintiff has been able to prove that the infringer’s actions negatively affected his business, lured his customers away, and significantly reduced the profits he should have made.
- Reasonable Royalties
When the lost profits cannot be proven, the court estimates the royalties that should be paid to the plaintiff for making, selling, or using his patented invention.
- Injunctive Relief
An injunction is a court order to do or stop doing something. In this case, injunctive relief is a temporary court order to stop infringing on the patent claim, usually issued in the early stages of a trial when it’s clear that the plaintiff will most likely win anyway.
Do You Seek A Patent Infringement Lawyer?
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