Patent Infringement and Trolls
By Joseph Wetch
Imagine Ms . Smith had an idea . She would create the best widget there is for an unmatched need . That idea , creating the widget , is a protectable asset . An intellectual property asset . Specifically , it is patentable .
So , imagine further that Ms . Smith decides to get a patent from the United States Patent & Trademark Office ( USPTO ). She does the prerequisites , files her application , and waits 30 months . Then the USPTO issues her patent and will keep it for the next 20 years . A patent gives you a legal monopoly over a product . The right to get a patent is enshrined in the Constitution and congress has enacted laws to protect inventor ’ s ideas and products . A patent forbids others from making , using , selling , or offering to sell a product without authorization that is similar or identical to the patented product .
Then , when one year later , a competitor has copied her widget , she would be understandably upset . What can she do ?
Enter the world of patent infringement . Patent infringement means violating a patent owner ’ s rights with respect to some invention . You cannot make , use , offer to sell , or sell something that contains every element of a patent “ claim ” or its equivalent . Patent infringement cases account for 5,000 to 6,000 docketed lawsuits per year , usually in federal court . They account for some of the higher awards . Courts awarded $ 4.67 billion dollars in 2020 . The median damages award has gone up from $ 1.9 million in 2010 to $ 10.2 million in 2017 .
There are different types of infringement as well . One type is literal or direct infringement . This type of infringement is remarkable because there need not be any proof that the infringer was aware of the patent in the first place . Another type of infringement is contributory infringement . In this case , a person aids a direct infringer by selling a component of the patented invention . This type of infringement does require knowledge of the patent , however . Lastly , there is something called induced infringement . In this case , a person can be liable if he or she actively induces someone to infringe on a patent .
There is also the Doctrine of Equivalents . Under the Doctrine of Equivalents , Ms .
Smith can prove infringement even if one or more asserted patent claim limitations are not literally present in the accused product or process . For any limitation that is not present under the normal patent claim , Ms . Smith must show that the differences between the literal claim requirement are insubstantial .
So , Ms . Smith has a good chance of prevailing on a patent infringement case so long as she can overcome the affirmative defenses .
Affirmative defenses include the obvious claim there is no infringement of the widget . There is also the defense that the patent is invalid for some reason , including that the widget is obvious and therefore not patentable . There is also a defense for Ms . Smith failing to meet statutory requirements . Finally , there are equitable defenses as well , typically arising from the patent holder ’ s conduct during the patent ’ s prosecution .
Ms . Smith must also watch out for people who may sue her for patent infringement . You can buy a patent and many companies
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