Patents R Us: Information and Services for Inventors and Patent Owners

Patent Infringement Is Serious and Common!

For the inventor or small business that owns a patent, and that patent is being infringed, there are limited options. First of all, there are no patent cops. The US Patent Office issues patents, it does not enforce them. It is the job of the patent owner to enforce his (or her or its) patent!

And unlike copyright infringement, which is a crime in some circumstances, patent infringement is a civil matter. The patent owner facing infringement of his patent by another business has just two choices:

1. Injunctive Relief: The patent owner can go to federal court and seek what’s called injunctive relief. The patent owner can ask the court to issue an order preventing the infringer from offering for sale the product that uses the infringed patent. If the product is produced outside of the US, the court can issue an order preventing the import and sale of the product in the US. However, a legal precedent has been established that only patent owners that “practice” their patent (that is, they use the patent to produce a product or service) can receive such injunctive relief. If the patent owner is what’s called an NPE (non-practicing entity), a person or business that owns a patent but does not use that patent to produce a product or service, the only alternative is to sue for damages.

2. Sue for Damages: The second option is for the patent owner to sue the infringer for both past and future use of the patent. If the court finds that the patent was infringed, it will award the patent owner a settlement that compensates for the past use of the patent as well as royalties on future sales of the product. Just as most lawsuits are settled out of court, it is likely that a patent infringement lawsuit will result in an out-of-court settlement, and the infringer will agree to license the patent and pay the patent owner a royalty. Forcing a patent infringer into a licensing agreement is known as “stick licensing” and the term comes from the “carrot and stick” analogy.

Vengeance or Compensation? These are the options available to the patent owner who is a victim of patent infringement. If you own a patent, and you are NOT practicing the patent, suing the patent infringer for damages is your only option and, quite frankly, the smart option. What benefit is there in getting the infringer to stop using your patent? Why not, instead, seek compensation for the use of your patent? Even if you are practicing the patent, the question you have to ask is: Will it profit you to force the infringer to cease producing the product that uses your patent, or might it profit you greater to earn a royalty on the products the infringer makes using your patent?