An Overview of Patent Infringement in the United States

  • Feb 22 2018
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  • Category: Blog

A patent confers upon its owner the exclusive right to prevent others from making, selling, or using the subject of the patent. In the United States, patents are issued by the U.S. Patent and Trademark Office (USPTO), after which they remain in effect for 20 years. The USPTO issues the following types of patents:

  • Design patents – Design patents protect ornamental, new, and original designs for articles of manufacture.
  • Plant patents – Plant patents protect the discovery or invention of new varieties of plants.
  • Utility patents – Utility patents protect the invention of articles of manufacture, compositions of matter, processes, new machines, and improvements to each of the above.

Under U.S. law, every patent contains a grant to the patentee of the right to exclude others from using, making, offering for sale, or selling the subject of the patent. An infringement occurs when a party has used, made, offered for sale, or sold an infringing invention or its equivalent. In addition, one commits what is known as “indirect infringement” when he or she actively and knowingly induces another to infringe.

Preliminary Protection from Infringement

An infringement action may be not be initiated until a patent has been issued. However, U.S. law provides some protection prior to issuance. Under 35 U.S.C. § 154(d), a patent owner may obtain reasonable royalty damages for infringing activities that occurred prior to a patent’s date of issuance. In order to recover provisional damages under this law, a patent holder must demonstrate that:

  1. The infringing activities occurred after publication of the patent application;
  2. The infringer made, used, offered for sale, or sold the invention as claimed in the published patent application; and
  3. The infringer had actual notice of the published patent application.

Legal Representation

The patent, trademark, and copyright registration processes can be complicated. In addition, failure to comply with registration laws can result in wasted time, money, and unprotected intellectual property. Therefore, we highly recommend consultation with an experienced intellectual property attorney prior to attempting to protect your ideas through the legal process. At Carter, DeLuca, Farrell & Schmidt LLP, the process of obtaining a patent beings with a careful determination of the scope of the claims to be pursued. Once fully understood, a patent application is drafted by our patent attorneys that provides a clear description of the technology to be patented. During the registration process, our experienced attorneys work closely with the USPTO to issue patents that meet all statutory requirements and are unhampered by superfluous comments in the prosecution file history. Using our technical and legal expertise, we drive collaboration to create portfolios that protect our clients’ technology, meet their business needs, and maximize the impact of their inventions in the marketplace. If you are the creator of intellectual property of any kind, please consider contacting our experienced patent attorneys to discuss your situation.