March 22, 2011 Leave a comment
Patent infringement litigation has been on the rise since the mid 1990s due mainly to the increase in computer-age technology. Most patent infringement cases involve one company charging another company with selling or using its product for their own economic advantage. Many times, the Defendant in a patent litigation case has no idea he is infringing on another’s intellectual property, but ignorance is never a defense in the law. The Defendant will still have to cease benefiting from the patented item and pay the allotted damages to the Plaintiff. If the infringement is proven to be willful, damages in such a case can be increased up to three times the actual amount of damage.
Patent law is governed by Federal Law and the rules are set out by the United States Patent and Trademark Office, 35 U.S.C. 271 Infringement of patent. – Patent Laws. To find that a patent has indeed been infringed upon, several items must be found. In an article entitled, “Understanding Patent Infringement Legal Opinions”, David V. Radack sets out the following:
- A copy of the allegedly infringed patent.
- The file wrapper or file history of the patent which includes a copy of the patent application as filed, communication from the patent examiner in charge of the application, and communication from the applicant to the patent examiner.
- A copy of the prior art references cited during the prosecution of the patent application.
- The allegedly infringing product or device itself. Preferably, a commercially sold device is best.
Once this information is analyzed, many times with the help of Patent Infringement Expert Witnesses and Consultants, an opinion summary is provided. It is this opinion which sets forth how the parties will proceed, how the Defendant should respond to a cease and desist order, if changes can be made to Defendant’s product which will eliminate the violation, or to negate a charge of intentional infringement.
Considering the litigation gridlock currently in the Federal Court system, it may be worth it to seek the knowledge of a Patent Expert or Consultant concurrent with the development of a new device or product. If not then, retaining a Consultant prior to marketing the product could save an enormous amount of time and money.