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I was accused of patent infringement. Now what?

On Behalf of | Sep 16, 2021 | Corporate Litigation

Patents are an important part of innovation. Our country takes patent protections so seriously that our founding fathers included this form of legal protection for innovation within the original U.S. Constitution. Even before our founding fathers thought to protect the freedom of speech and the freedom of the press, they took the steps to protect and promote the “progress of science and useful arts” through securing exclusive rights to the inventors for a set period of time. The other rights, for free speech and press, came with the passage of the Bill of Rights in 1791. Patents were in the original Constitution, adopted in 1787.

It may seem difficult to imagine a way to defend against an allegation of patent infringement when we know that the roots for these protections are so deep — but options are available.

Option #1: Review the claim.

Just because one invention is similar to another, does not mean it qualifies as a patent infringement. In order to constitute an infringement, the product or service in question must violate the claims of the patent. Patents are composed of a series of claims, and every claim has elements. Check these elements. It is possible that your service or product varies from the elements listed within the patent. If this is true, there is no infringement.

This also serves as warning for those who are seeking to get a patent. The language you use to apply for patent protections is extremely important. The failure to properly draft your patent can result in weak patent protections.

Option #2: Check the term of the patent.

As noted above, the founders stated that inventors should have protection of their product for a set period of time. Patents are not eternal. They expire. In most situations, patents last for twenty years. There are some exceptions. Look into the patent and see if the term is still running or if it has expired.

Option #3: Look for problems with the patent’s validity.

You may also be able to question the validity of the patent. If the patent is not valid, the patent owner cannot claim infringement. The United States Patent and Trademark Office (USPTO) may invalidate a patent if you can establish that the patent was based on prior knowledge or use.

The above discussion is a relatively brief overview of a complex area of intellectual property law. Those who find themselves facing allegations of patent infringement are wise to take the matter seriously and seek the counsel of attorneys experienced in this niche area of the law.