Inventing something feels really exciting. You’ve given your best, your time and maybe even your financial resources to build an innovative idea. It is a major development, an answer and a game-changing event. You possibly have also gone through the difficult process of getting a patent to protect what you have created.
However, sometimes what starts as excitement becomes dread. Suppose somebody else, another company or a complete stranger, starts doing things with a product that looks very similar to your invention? Perhaps they only copied what you came up with? It is at this point that the tricky and challenging area of patent enforcement becomes important.
A lot of people feel that all the technical language and complex processes are hard to understand. My purpose in this post is to explain what you can do to protect your rights in patent enforcement, regardless of your knowledge in law. You might see it as a tool that helps you defend and manage your innovation.
The Foundation – Understanding Your Patent
It’s important to know what a patent is and what sets it apart, before we look at what someone doing could do with your idea.
What is a Patent?
Basically, a patent comes from the government and lets the inventor stop others from making, using, selling, offering to sell or importing their invention for a period of 20 years after filing. Rather than giving you the ability to make, use or sell your invention, it provides a right to stop others from doing those things. It is very important to make this distinction.
Why is a Patent So Important?
Unlike many people think, a patent is a substantial asset that supports success.
Exclusive Monopoly: You get a limited period of exclusive rights, so you gain control over the sale and use of your invention.
Competitive Advantage: You may be able to dominate the market, stopping others from offering similar products or services.
Revenge Generation: You either make and sell your invention or license it out for people to manufacture which can result in a steady stream of royalties.
Attracting Investment: Having patents means investors are more likely to invest, because it shines a light on your valuable asset and stops others from entering the market easily.
Deterrent: Having a patent usually prevents others from using your idea, because they know they could be taken to court.
The Red Flag – Identifying Patent Infringement
You own a patent and you think someone is infringing on your rights. In what ways can we be sure it is the right one? What does patent law consider to be copying?
What Does "Copying" Mean in Patent Law?
In patent law, there doesn’t need to be an exact, unaltered reproduction for it to be called copying. If a person infringes on a patent, they are making, using, selling, offering to sell or importing a product or process that is included in the patent’s scope. If their product or process still contains every important element from at least one of your patent claims, it is probably an infringement.
Direct vs. Indirect Infringement
Learning the finer details about what infringement is can be beneficial:
Direct Infringement: It is the easiest form because it involves officially stealing copyrighted material. It takes place when one party carries out every action in a patented process or produces, uses, sells, offers to sell or imports a product that includes every feature of a patented invention. As an example, if a company makes and sells a widget involving your patent even though you did not give approval. Note that direct infringement is considered a “strict liability” crime which is why the person committing it doesn’t always have to know about your patent to still be at fault.
Indirect Infringement: It is a more involved situation since a third party is involved. People most commonly use two types:
Contributory Infringement: The individual sells an item that is a key part of the patent, knowing it will be used to infringe and the item isn’t standard and can be used for legal reasons as well.
Inducement to Infringe: Means offering help or support to someone so that they carry out direct patent infringement. One must show they know about the patent and intend to cause others to infringe it.
How to Spot Infringement?
One needs to stay observant and work steadily to catch infringement.
Market Monitoring: Keep an eye on your industry on a regular basis. Try to go to trade shows, read about your industry, check what your competitors say in statements and browse the Internet. Are similar products or services appearing in the market that work as or look alike to your patented invention?
Competitor Analysis: Check out what your competitors are offering to see how they compete. Match the features, specifications and marketing statements of the devices to your patent claims.
Reverse Engineering (Ethically): Obtain samples and study them through reverse engineering to see if the products incorporate your patented technology when it is permitted and allowed through the law.
The Role of “Claim Charts”: The Practice of Making “Claim Charts”: When performing a formal assessment, patent professionals may make “claim charts.” You should match each claim in your patent to a matching feature found in the suspected infringing product or process. Should every feature of one independent claim turn up in the accused product/process, direct infringement is more than likely. This aspect of the case requires legal knowledge and should be done by an expert.
First Response – What to Do When Your Idea is Copied?
Finding someone might have violated your rights can be frustrating, yet rushing your response may do more harm than good. Here is how to use a strategic approach.
Don’t Panic, But Act Strategically
Sometimes, the first thing people do is tell the alleged infringer about the problem. But, get educated about the details and talk to a professional before you make financial choices.
Step 1: Verify Your Patent’s Validity
Before pointing the finger at someone else, look at your own activities first. Check that your patent is valid, has been granted and is still effective in its terms. This means:
Check the Grant Date: Establish when your patent was officially set into force.
Verify Maintenance Fees: Check how much it will cost to keep the patent in good standing: Maintenance fees need to be paid regularly. Make sure all seller-related payments are current. If you do not pay the maintenance fees, the patent might no longer be enforceable.
Review Your Claims: Reread Your Patent Claims: Carefully go through your patent claims. Know the boundaries of the protection you are getting.
Step 2: Gather Evidence of Infringement
All successful enforcement efforts are built on solidly backed evidence. The greater the number of solid proofs you find, the more likely you are to win.
Document Everything: Screenshot the websites, advertisements and details of products.
Purchase Samples: Buy your suspect item(s) to check if it really copies trademarked items. Record when the item was purchased, who sold it and any markings.
Photographs and Videos: Record the product by taking still pictures and recording it from various perspectives.
Marketing Materials: Brochures, manuals and similar documents that describe the product and what it can do are examples of marketing materials to gather.
Technical Reports: If your budget allows, it’s helpful to have a technical expert examine the accused product and your patent claims and write a detailed technical report. Demonstrating this may be necessary to assert infringement.
Sales Data (From You): Having sales data that shows less sales after the infringer launched could support your case when you claim for damages.
Step 3: Consult a Patent Attorney
Experts call this the most important step. A patent attorney or intellectual property lawyer who is qualified will:
Evaluate your Case: Having evaluated your patent and your proof, they will conclude the likelihood of infringement and how likely your claim is to succeed in court. They let you estimate how likely you are to succeed.
Interpret Claims: It is their job to make complex patent claims clear and see how the accused goods or services may infringe.
Advise on Strategy: They will show you the different choices, list their advantages and disadvantages and discuss what it will cost.
Draft Legal Documents: They may write letters telling someone to stop what they are doing and, should it be required, support the client’s position in court.
Step 4: The Cease and Desist Letter
Communication is often the next formal action which involves sending a cease and desist letter. It is a written reminder to the party accused of infringement.
Purpose:
- To inform the accused infringer that you have a patent and that they may have infringed.
- To ask them to halt the activities that are in violation of intellectual property law at once.
- To allow for exploring settlement before proceeding with a lawsuit.
A proper letter usually consists of the following points:
- Provide the identifying information of your patent (number, when it was granted, repeating the main claims).
- A clear outline of the actions said to involve copyright infringement.
- A call for these actions to stop right away.
- A specific time when they are supposed to respond.
- A reminder that you can sue if they break the contract.
When to Send: Your attorney will help decide when the letter should be sent. Sometimes the infringer will stop if informed of the patent or is willing to pay a settlement rather than getting sued. Sometimes, sending the letter can let a smart infringer know what you are planning, allowing them to set up their defences. As a result, having a lawyer is very important.
Taking Legal Action – Beyond the Letter
If the cease and desist letter doesn’t produce results you like, you usually can either take the issue to Alternative Dispute Resolution or to a court.
If a Cease and Desist Doesn’t Fix the Problem
In case the letter is not honored, denied or talks of settlement are rejected, you are left with the option to escalate
Option 1: Alternative Dispute Resolution (ADR)
Alternative dispute resolution offers people options to solve disagreements outside of the courtroom. They may happen faster, be cheaper than other options and support business relationships.
Mediation involves a neutral third person (the mediator) who aims to encourage both parties to communicate and negotiate the dispute. The mediator does not decide things for the parties but guides them in finding answers they both accept. Mediation does not usually bind the parties unless they both agree to make it mandatory. Negotiators may use it when they wish to keep a business relationship or find a more team-focused outcome.
When in arbitration, someone independent from the case (the arbitrator or a panel) examines information from each side and decides what happens. It functions more like a private legal proceeding. Picking arbitration lets you have your problem solved more quickly, in private and with a decision you must obey from a third party.
Option 2: Patent Infringement Litigation (Court)
Should ADR fail or be inappropriate for your case, you are allowed to proceed with a lawsuit in a court having authority to handle these matters. This takes the most time, costs the most and is the most formal choice, but the result can be the most satisfying. Litigation often includes a number of steps and may become complicated.
It is up to you (the patent owner) to formalize the complaint by describing your patent, the act of infringement and any actions you hope the court will take.
Both parties share a lot of information and evidence with each other. It consists of different means such as asking questions in writing (interrogatories), requesting documents and taking depositions (out-of-court testimonies). This is the longest part and may continue for months or years.
A separate and important step only found in patent litigation is known as Claim Construction (Markman Hearing). During a hearing, the judge tries to figure out what the conflicting parts of the patent mean. The judge interpreting the law has a lot of impact on the decision about infringement.
Either a plaintiff or defendant is allowed to ask for a judgment before the trial if they have no real disagreements about the facts and can win the case based on law.
If there are no settlements or dismissals at this stage, the case goes to trial and a judge or a jury listens to it. On both sides, they share their supporting evidence, list witness statements and state their arguments. If infringement is found by the jury (or judge), they determine the damages to be paid.
The making of an appeal is possible for the party who lost.
Proactive Protection – Preventing Infringement
Enforcement involves dealing with illegal use after the fact, but smart ones support their patents with actions that deter people from copying them from the outset.
Good Patent Drafting
Your application for a patent forms the basis of its protection and the claims are especially important in this process.
Clear and Broad Claims: Create claims that your patent attorneys can review, as this ensures they cover your invention in many ways and are hard to go around in design by your competitors.
Detailed Description: Explain your invention fully to professionals working in the same area so that they can easily produce it and apply it. Doing this strengthens the arguments you are making.
Proper Patent Marking
Mark each patented product with your patent number or, if your application is still ongoing, with “patent pending”.
Notice to the Public: the public is given notice that your product is patented which helps prove infringement if someone claims your intellectual property.
Signals Potential Infringers: Deterrence also sends a signal to people acting illegally that you are aware of your rights and might enforce them.
Continuous Market Monitoring
Watch the life span of your patent and take appropriate action when needed. It is important to regularly watch the market.
Stay Informed: Follow the industry closely by knowing about new products arriving, upcoming trade shows and the latest activities of competitors.
Patent Monitoring Services: Subscribe to services that will monitor the latest patents filed and granted in areas relevant to your technology, so you are informed of possible threats.
Non-Disclosure Agreements (NDAs)
Whenever you divulge your idea to anyone (investors, manufacturers, partners), ask them to agree to an NDA. Your idea is protected as it is either a trade secret or confidential information and must be kept hidden under law.
Conclusion: Vigilance is Key
You have created something of value which honors your creativity and all your hard work. The risk of having your idea copied is real since competition is so strong in innovation. The rights you have over your invention are more strongly protected when it has been patented.
If you know what a patent covers, watch out for copycat activities, use evidence wisely and get good advice from a lawyer, you will be able to ensure your patent rights. In addition, drawing up strong patents and continuously checking the market for infringement can help you protect yourself well and discourage others from stealing your ideas.
All in all, the goal of patent enforcement is to secure your idea, keep your lead in the market and guarantee you benefit from your creativity. Be sensible, learn about possible threats and be prepared to protect your ideas.
How Intellect Bastion Can Help
Handling the details of patent enforcement seems hard, but there is support available. We see how important your innovation is and are devoted to supporting its protection. Being one of the top Intellectual Property Rights (IPR) firms headquartered in India and active worldwide, our group of seasoned patent agents and IP experts provides complete services to protect your rights. We give expert guidance in IP Enforcement and Commercialization by carefully examining infringement cases and recording the details we have discovered with EOU charts or claim charts. From drafting effective cease and desist letters to talking you through choosing strategic litigation, mediation or arbitration, we lead you at every stage of enforcement. Also, keeping track of your patents prevents any unexpected violations or unfair activities by competitors as soon as they happen. We design a special plan for enforcement that fits your situation and aims to quickly and effectively guard your intellectual property and keep your position in the market, giving you the chance to enjoy what you have built.
About the Author
Bhawna Kaur, Patent Assistant at Intellect Bastion
Get in Touch with Intellect Bastion for expert guidance:
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