Patent LitigationNo Patent Litigation infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C., which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. This right to obtain provisional damages requires a patent holder to show that (1) the infringing activities occurred after the publication of the patent application, (2) the patented claims are substantially identical to the claims in the published application, and (3) the infringer had "actual notice" of the published patent application. Under 35 U.S.C. § 271, "whoever actively induces infringement of a patent shall be liable as an infringer." Thus, by selling products that only has use if used in an infringing way, the seller could be found liable for the direct infringement of the end user. This provision typically protects against those who aid and abet end users. Under US law, a patent owner is entitled to the larger of either a reasonable royalty or lost profits that result from infringement of their patent. Reasonableness is determined by the standard practices of the particular industry that the invention is in. Lost profits are determined by a "but for" analysis. (e.g. "My client would have made X dollars in profit but for the infringement of his/her patent.") An infringer can also be enjoined from further infringement of the patent, even to the point of being forced to remove an infringing product from the market. The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage. In the United States, 35 U.S.C. § 271 defines (active) induced infringement: "Whoever actively induces infringement of a patent shall be liable as an infringer." If an infringer is found to have deliberately infringed a patent (i.e. "willful" infringement), then punitive damages can be assessed up to three times the actual damages. Legal fees can also be assessed. Also in the United States, 35 U.S.C. § 271 defines contributory infringement. It provides that "Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer." Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement." This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. In the U.S., types of "indirect infringement" include "contributory infringement" and "induced infringement." In United States law, a Patent Litigation infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. | |
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