Enforcing Patent Rights
Created by FindLaw's team of legal writers and editors | Last reviewed March 20, 2017
Let’s say you own a small, innovative technology company that mainly produces data storage and access systems technologies for Smartphones. You own all the patents for your products, licensing them to bigger technology companies at a lucrative price. Now let’s say a very well-known computer company decides to use your patented inventions in their music storage software without paying proper licensing fees. What do you have? You might have a case of patent infringement, as SmartFlash LLC did against Apple in 2015. While the jury verdict in favor of Smartflash, originally $533 million, was thrown out by a federal appeals court, the case still demonstrates how a person or business goes about enforcing their patent rights.
If you are the owner of a patent, and you believe it has been infringed, you will have to pursue your claim through civil litigation. These cases often involve lengthy fact-gathering and pre-trial preparation. They can also be quite expensive and complex. Below you will find key information on how to enforce your patent rights if you believe someone is infringing upon your rights, the court in which you will file your lawsuit, and where to go to find an experienced patent attorney in your area.
Federal Civil Court
If you believe you have a valid case against an alleged “infringer,” your first step is to bring a patent infringement case. Patent infringement is not a crime; therefore you will need to bring your case in a federal civil court. Nor will your case be brought to the U.S. Patent and Trademark Office (USTPO), which issues patents but does not deal in any enforcement actions.
Patent Litigator vs. Patent Agent
Patent infringement cases are civil lawsuits played out in a federal court. The person or business filing the lawsuit is the “plaintiff” and the party that is being charged with patent infringement is the “defendant.” As a plaintiff in a patent case, you will hire a patent litigator to represent you. You may have heard the term “patent agent.” To be clear, a patent agent is not an attorney and cannot represent you in court – that’s the job of a patent attorney. You may use a patent agent to help you secure a patent on your invention, also called “prosecuting a patent.”
Sound confusing? It is a little, but the key takeaway is that if you are attempting to begin a patent infringement case, you’ll want to hire a seasoned patent litigator to help you in and out of court not a patent agent.
Patent Infringement Lawsuit Basics
Patent infringement cases can be lengthy and expensive, as we mentioned above. That’s the downside. The upside is that if you are an inventor, you have a direct avenue to protect your hard work. A patent lawsuit allows the patent owner to sue any person or business who makes, sells, uses, or imports the invention into the U.S. (patent infringements). There are two primary ways in which an infringement can happen: literal infringement or similar invention under the doctrine of equivalents, i.e. “Does the accused product or process contain elements identical or equivalent to each claimed element of the patented invention?” Keep in mind, the party accused of patent infringement may have a number of defenses available to them including that the patent itself is invalid and should have never been issued.
Enforcing Patent Rights: Related Resources
- Intellectual Property
- Patents: Make Sure Your Idea is Useful, Novel, and Non-Obvious
- Nature of Patent and Patent Rights
Do You Need a Patent Attorney?
Enforcing a patent is an entirely different legal issue than applying for and prosecuting a patent, so it requires a different skill set. If you are thinking of bringing a patent infringement action, you should consider speaking with a patent law attorney who can help evaluate the merits of your case. You can learn more by contacting a patent law attorney in your area.
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