Patent Infringement

There were a total of approximately 3.1 million unexpired patents in the United States in 2020. With so many patents covering inventions of all kinds, well-meaning companies may find that they have accidentally and allegedly infringed upon someone’s patent rights.

As with other types of intellectual property, patent infringement is serious business. You may have wondered what to do if accused of patent infringement.

What Is Patent Infringement?

A patent gives its owners certain exclusionary rights. Title 35 of the United States Code, Section 271(a) provides that patent infringement occurs when someone makes, uses, sells, offers to sell a patented invention within the United States, or imports a patented invention into the United States.

Whether the accused person knows about the patent is irrelevant to a finding of infringement; however, it may affect the amount of damages awarded. If the infringement is willful the court may enhance the monetary award up to triple the damages awarded. Additionally, Section 271 provides other bases for infringement that may be applicable to your particular situation. Your patent attorney will be able to evaluate infringement claims being made under Section 271.

What to Do If Accused of Patent Infringement

The  first notice that you may be infringing someone’s patent may be a cease-and-desist letter from the patent owner’s attorney. This letter will likely identify the patent(s) you are allegedly infringing and the basis for the infringement charge. 

If you receive one of these letters, take it seriously. Consult a patent attorney without delay. However, a patent owner is not required to send a cease and desist letter, so your first notice that you are being accused of patent infringement may be service of the Complaint, which is the paper filed in Federal Court that initiates a lawsuit. 

Again, your first step should be to consult a patent attorney that is knowledgeable in patent infringement litigation. In either event, below are additional steps to undertake:

Hire a Patent Attorney

Even if you have an in-house attorney or engineering or scientific staff, it is unlikely they will be familiar with the nuances of patent law. A patent attorney will be, and they can assess the situation and give guidance on how to proceed. 

Gather Information

Your attorney will likely ask you to start collecting information about the allegedly infringing product, and the patents listed in the demand letter or complaint. All this information is crucial to analyzing the strength of the infringement claim.

Review the Patent Claims with Your Attorney

Every patent contains claims that set forth the invention. Each claim is made up of several limitations that describe “the invention.”  These claims are the “metes and bounds” of the patent owner’s exclusionary rights.

In consultation with your attorney, review the claims in the patents. In general, infringement occurs only if your product or process meets all limitations of a particular independent patent claim.  Your patent lawyer will guide you through the process of construing the claims and applying the claims to your accused product or process.  A patent attorney’s expertise is crucial during this step.

Develop a Plan to Handle the Case

Once you have reviewed the situation, it’s time to come up with a plan to defend yourself. Your patent attorney will help you build a defensive strategy.

Hire a Patent Infringement Attorney

If your company is accused of patent infringement, The Polasek Law Firm can help you develop a plan to defend your company. TPLF’s mission is to provide efficient, economically viable solutions to the issues facing clients.

Polasek Law Firm offers years of patent litigation experience at affordable hourly rates and flexible fee arrangements to meet your needs. Contact the firm today to schedule a free consultation.

Author Photo

Ted Polasek

Ted was a founding partner of Polasek, Quisenberry & Errington, L.L.P. (PQE), a firm that represented patent owners and companies accused of patent infringement. For nearly 25 years, Ted’s core practice has been litigating patent infringement cases, for hourly and clients on a contingent fee or other result-oriented basis. Ted attended the South Texas College of Law and graduated cum laude with his Juris Doctorate in 1990 and received a B.S. in Chemical Engineering from the University of Texas.

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