What is involved in enforcing a patent?

Once a patent is issued, it is up to the owner to enforce it. If friendly negotiations fail, enforcement involves two basic steps:

  • making a determination that the patent is being illegally violated (infringed), and
  • filing a federal court action to enforce the patent.

Because enforcing a patent can be a long and expensive process, many potential patent infringement suits never get filed. Instead, the patent owner often settles with the infringer. Frequently, an infringer will pay a reasonable license fee that allows the infringer to continue using the invention.

To decide whether an inventor is violating a patent, you must carefully examine the patent's claims (most patents contain more than one of these terse statements of the scope of the invention) and compare the elements of each claim with the elements of the accused infringer's device or process. If the elements of a patent claim match the elements of the device or process (called "reading on" or "teaching" the device or process), an infringement has occurred. Even if the claims don't literally match the infringing device, it is possible that a court would find an infringement by applying what's known as the "doctrine of equivalents." In these cases, the invention in the patent and the allegedly infringing device or process are sufficiently equivalent in what they do and how they do it to warrant a finding of infringement.

A patent owner may enforce the patent by bringing a patent infringement action (lawsuit) in federal court against anyone who uses the invention without permission. If the lawsuit is successful, the court will take one of two approaches. It may issue a court order (called an injunction) preventing the infringer from any further use or sale of the infringing device and award damages to the patent owner. Or, the court may work with the parties to hammer out an agreement under which the infringing party will pay the patent owner royalties in exchange for permission to use the infringing device. Bringing a patent infringement action can be tricky, because it is possible for the alleged infringer to defend by proving to the court that the patent is really invalid (most often by showing that the PTO made a mistake in issuing the patent in the first place). In a substantial number of patent infringement cases, the patent is found invalid and the lawsuit dismissed, leaving the patent owner in a worse position than before the lawsuit.

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