The term “infringement” means an encroachment upon the
Intellectual Property or domain belonging to a patentee that is described by the claims of the applicant’s
patent. Much like real property, intellectual property has boundaries. The claims of the patent are the
boundaries of the intellectual property. Invasion onto a landowners property is called trespass, while
invasion onto a patent holders intellectual property (as defined by the claims) is called infringement. Both
are civil wrongs or “torts.” Patent infringement, though, is governed by a federal law. Because of this, a
defendant must be sued in Federal Court.
A determination of patent infringement involves a two- part process. First, the claims are
analyzed to determine the scope of the Intellectual Property. This process may require ordering the
prosecution history of the patent and studying relevant documents. Second, the claims and the accused
infringing item are analyzed to see that the accused device or process reads on the patents
Every requirement of each claim must be considered to see if each thing set out in the claim
also appears in the accused device. If one or more things set forth in a claim is not present in the practice
being reviewed, there is not literal infringement of that claim. On the other hand, if each thing which is
set out in even one claim of the patent is present in the accused structure or process, then there is direct
and literal infringement.
When literal infringement is found, that is normally the end of the inquiry. When the claims
of a patent are read against an accused practice, they may be so close to identical that infringement is
clear. Also, the accused practice may be so remote from the patent that there is no possibility of
infringement. Very often, however, there are some differences, requiring further study. Sometimes, such
differences are incorporated into a design after knowledge of a patent in an effort to avoid infringement.
Then, the question presented is whether the accused device is sufficiently different from the patent to be
held to be non- infringing.
If it is too close to the patent, it will infringe. If the accused device is remote enough, it
will not infringe. The U.S. Supreme Court has stated: “One who seeks to pirate an invention, like one who
seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and
shelter the piracy. Outright and forthright duplication is a dull and very rare form of
Anyone who makes, uses or sell a product that reads upon a patent, either directly or the
equivalent, is liable for patent infringement. If a person actively encourages another to make, use or sell
the invention is liable for indirect infringement. Contributory infringement can be committed by knowingly
selling or supplying an item for which the only use is in connection with a patent invention. Good faith or
ignorance is no defense for direct infringement, but it can be for indirect or contributory
Possible remedies for patent infringement are:
Treble damages for willful infringement;
Attorneys’ fees in some cases.
If you are a patent owner and you believe you have a claim for patent infringement or you are
being accused of patent infringement and require assistance, please email us at firstname.lastname@example.org
or call to speak to one of our intellectual property attorneys at our office.