| Patent Infringement |
Article Index for Patent |
Website Links For Patent |
Information AboutPatent Infringement |
| CATEGORIES ABOUT PATENT INFRINGEMENT | |
| patent law | |
| infringement, patent | |
|
A Patent provides the proprietor of that patent with the right to exclude others from utilizing the Invention Claim ed in that patent. Should a person utilize that invention, without the permission of the patent proprietor, they may infringe that patent. UNITED STATES LAW In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported the infringing Invention or its Equivalent . In U.S. law, no infringement action may be started until the patent is issued. In contrast, pre-grant protection is available in some countries. For instance, all European Patent Convention (EPC) signatories should allow an applicant to seek reasonable compensation for pre-grant infringement (Art. 67 (2) EPC {Link without Title} ). Direct infringement A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent. 35 U.S.C. 271(a) Indirect infringement Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement". This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. In the U.S., types of "indirect infringement" include "contributory infringement" and "induced infringement". In the United States, 35 U.S.C. § 271(b) defines (active) induced infringement: "Whoever actively induces infringement of a patent shall be liable as an infringer." Active inducement of infringement Under 35 U.S.C. Section 271(b), "whoever actively induces infringement of a patent shall be liable as an infringer." Thus, by selling products that only has use if used in an infringing way, the seller could be found liable for the direct infringement of the end user. This provision typically protects against those who aid and abet end users. National Presto Indus., Inc. V. West Bend Co. , 76 F.3d 1185, 1195 (Fed. Cir. 1996). Further, there can be no inducement if there is not first a showing of direct infringement. Fuji Mach. Mfg. Co. V. Hover-Davis, Inc. 60 F.Supp. 2d 111, 117 (W.D.N.Y. 1999). Defenses The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. In case of a medical procedure patent issued after 1996, a U.S. infringer may also raise a statutory Safe Harbor defense to infringement. UNITED KINGDOM LAW Infringement under United Kingdom patent law is defined by Section 60 of the UK Patent Act 1977 , which sets out the follow modes of infringement.
CLEARANCE SEARCH AND OPINION A clearance search is a search done on issued Patents or on pending Patent Application s to determine if a product or process Infringe s any of the Claim s of the issued patents or pending patent applications. These searches are often performed by one or more professional patent searchers who are under the direction of one or more Patent Attorney s. A clearance search is normally followed by a clearance opinion, i.e. legal opinion provided by one or more patent attorneys as to whether a given item or process infringes the claims of one or more issued patents or pending patent applications. Clearance opinions may be done in combination with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable. The cost of these opinions for U.S. patents can run from 10's of thousands of dollars to 100's of thousands of dollars or more, depending upon the particular patent in question and the amount of money at stake if the patent is infringed. PATENT INFRINGEMENT INSURANCE Patent infringement insurance is an Insurance policy provided by one or more insurance companies to protect either an Inventor or a third party from the risks of inadvertently Infringing A Patent . For inventors, patent infringement insurance covers their legal costs in case they have to sue an infringer to enforce their patent. For third parties, patent infringement insurance covers their legal costs in case they are sued for patent infringement by an inventor. Patent infringement insurance is generally considered too expensive to be worth it. The premiums must be high, however, due, at least in part, to the high legal costs of patent infringement cases. A typical patent infringement case in the US costs 1 - 3 million dollars in legal fees for each side. This is despite the fact that 99% of all patent infringement cases are settled. Legal fees in pharmaceutical cases can run 30 million dollars or more due to the fact that billions of dollars may be at stake. REFERENCES
SEE ALSO ''See List Of Patent Legal Concepts for articles on various legal aspects of patents, including special types of patents and patent applications.''
NOTES
|
|
|