How can you enforce your patent rights if someone infringes?

If you have a patent for your product innovation, you might think that you are protected from anyone copying or using your invention without your permission. However, having a patent does not automatically prevent infringement, and you may need to take legal action to enforce your patent rights. In this article, you will learn how to identify and respond to patent infringement, and what options you have to resolve the dispute.

1 What is patent infringement?

Patent infringement is the unauthorized making, using, selling, or offering for sale of a patented invention, or importing it into a country where the patent is valid. Patent infringement can be direct, indirect, or contributory. Direct infringement occurs when someone performs all the steps or elements of a patent claim. Indirect infringement occurs when someone induces or encourages another person to infringe a patent. Contributory infringement occurs when someone supplies a component or material that is specially designed for infringing a patent and has no substantial non-infringing use.

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2 How to detect patent infringement?

To detect patent infringement, you need to monitor the market and the activities of your competitors, customers, suppliers, and licensees. You can use various sources of information, such as trade shows, publications, websites, social media, online databases, and patent offices. You can also hire a patent attorney or a patent agent to conduct a patent search or analysis for you. If you suspect that someone is infringing your patent, you should gather as much evidence as possible, such as product samples, brochures, invoices, and testimonials.

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Jeffrey Gluck
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Sometimes, if the patented technology is suspected of being embedded or programmed into a system or device, it may be necessary or useful to try to access the system or obtain the device to obtain more information. Software may need to be "de-compiled," or a device may need to be tested - or even taken apart - to determine if the patented technology is actually being used.

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3 How to notify the infringer?

Enforcing your patent rights begins with notifying the infringer of your patent and the alleged infringement. This can be done through a cease and desist letter, a formal and legal document that requests the infringer to stop the infringing activity and comply with your terms. Such a letter should include your name and contact details, your patent number and title, a description of the infringing product or process, a comparison of the infringing product or process with your patent claim, a request for the infringer to cease and desist from the infringement, a deadline for them to respond, and a warning of potential legal consequences if they do not comply.

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Jeffrey Gluck
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It is strongly recommended that one consult an attorney to draft such a letter. A letter that is not drafted properly may be interpreted as a threat of legal action and may result in the potential infringer filing a lawsuit for a declaratory judgment of non-infringement and/or patent invalidity, which would force the patent holder into court, even if they did not intend to file a lawsuit.

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4 How to negotiate with the infringer?

If the infringer responds to your cease and desist letter, you may have an opportunity to negotiate with them and reach a settlement. Negotiation is a voluntary and flexible process that allows you to communicate with the infringer and explore possible solutions. For example, you may agree to grant the infringer a license to use your patent in exchange for a royalty fee, or you may agree to cross-license your patents if you both have valuable intellectual property. Negotiation can save you time and money, and preserve your business relationship with the infringer.

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5 How to litigate against the infringer?

If the infringer ignores or refuses your cease and desist letter, or if negotiation fails, you may have to resort to litigation. This is a formal and adversarial process that involves filing a lawsuit against the infringer in a court of law, and it can be costly, time-consuming, and risky. You may need to hire a patent attorney or a patent agent to represent you, and in order to win the lawsuit, you must prove that your patent is valid and enforceable, that the infringer has performed all the steps or elements of your patent claim, and that they have acted without your authorization. If you are successful in litigation, you can obtain various remedies such as injunctions, damages, costs, and attorney fees.

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Jeffrey Gluck
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This is not quite right. Invalidity is a defense against a charge of infringement. The patent holder need only address validity-related issues if they are raised by the defendant. And this is not by showing validity, but rather by disproving the defendant's assertion of invalidity. The same applies to enforceability; one need only address an assertion of unenforceability that is raised by the defendant.

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6 How to prevent patent infringement?

In order to protect yourself from patent infringement, it's important to be proactive and vigilant about your patent rights. This includes registering your patent in all countries where you intend to market or manufacture your product innovation. Additionally, you should mark your product innovation with your patent number and the word "patent" or the abbreviation "pat." Furthermore, you should educate your employees, partners, and customers about your patent rights and obligations. It's also important to monitor the market and the patent landscape regularly and update your patent strategy accordingly. Lastly, if you encounter any patent issues or disputes, it is recommended that you seek professional advice from a patent attorney or a patent agent.

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7 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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How can you enforce your patent rights if someone infringes?

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1 What is patent infringement?

2 How to detect patent infringement?

3 How to notify the infringer?

4 How to negotiate with the infringer?

5 How to litigate against the infringer?

6 How to prevent patent infringement?

7 Here’s what else to consider

Product Innovation

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How can you enforce your patent rights if someone infringes?

1

2

3

4

5

6

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1 What is patent infringement?

2 How to detect patent infringement?

3 How to notify the infringer?

4 How to negotiate with the infringer?

5 How to litigate against the infringer?

6 How to prevent patent infringement?

7 Here’s what else to consider

Product Innovation

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