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Judge and Gavel

Patent Infringement

A patent gives its owner the opportunity to prevent others from commercially exploiting the invention (as defined in the claims) in the country where the patent was granted.

Commercial exploitation includes, for example, manufacturing, marketing, importing, exporting, etc. of a product or service that infringes the patent.

Merely receiving the patent will not prevent others from taking advantage of it – and the patent owner must take enforcement measures. These can include sending warning letters to violators, negotiating for termination of use by the violator (or for compensation for use, granting a user license), contacting Amazon (or other e-commerce sites) to terminate use, contacting customers of the violating product or service, and appealing to the court. Appealing to the court should be done with the appropriate timing in order to be able to receive temporary orders to stop the infringing use even before the end of the trial.

Filing a lawsuit in court has many advantages. It can provide the patent owner with very significant relief, it can motivate the violator to reach a compromise, and it signals to other violators that the patent owner is acting to enforce his rights. However, the lawsuit also has many disadvantages. A lawsuit in court exposes the patent to assault and in many cases the court cancels the entire patent or significantly reduces it. In addition, an infringement claim is complex and expensive. For example, in the United States, managing the claim costs several million dollars, and in most cases, the winning party does not receive compensation for the costs of the claim.

A patent includes a set of claims that define the scope of the patent owner's legal protection. The patent also includes a brief description of the technological background of the patent application, a technical description (as comprehensive as possible) of the invention. Each lawsuit stands on its own. It is customary to write one or more sets of claims with varying scope of protection. Wider claims provide broader protection but are easier to dismiss.

There are three main types of claims – System claims, Method claims and Software claims. The three types are designed to "catch" different violators.

  • System claims are suitable for protection against an entity that manufactures or sells an infringing product.

  • Method claims are suitable for protection against a service provider that includes use of the method.

  • Software claims are suitable for protection against infringing software marketing.

 

In order to determine whether the patent is infringed, the claims of the patent are compared to the "infringing" product or service. Each claim stands on its own – and it is sufficient to violate only some of the claims (even a single claim) in order for the product or service to be considered as infringing.

A patent infringement claim includes a stage in which the scope of the claims is interpreted. The interpretation process can be complex and unpredictable. The interpretation can rely, for example, on the other parts of the patent (such as the specifications of the patent – which includes a technical explanation of the invention). In some countries, the history of examining the patent application at the Patent Office is also important (for example, amendments to claims in order to obtain the patent) – and in other countries this is not considered important. 

Patent infringement can happen even if there is a difference between the patent claims and the “infringing” product or service. As a general rule of thumb – the greater the technical contribution of a patent – it can benefit from a broader scope of protection – and cover even greater differences. Infringement of a patent that is severed despite such a difference is called infringement of the essence of the invention.

You can only claim for patent infringement after the patent is obtained. In some countries, it is also possible to receive retroactive compensation for the period from the date of publication of the patent application until receipt of the patent.

Our firm specializes in litigation of patent infringements and revocations.

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