Patents R Us: Learn about Patent Infringement Services for Inventors and Patent Owners

Patent Infringement

When patent infringement occurs, it is up to the patent owner to pursue the patent infringer through civil action – filing a patent infringement lawsuit. The patent owner, as well as the infringer, can be a man, a woman, a business, a not-for-profit organization or other entity, or any combination of these.

Patent Infringement: Also called “patent violation,” patent infringement is the use of a patented invention by a person, business or other entity that does not have permission from the owner of the patent to use it to produce a product or service.

Patent infringement can be willful or unintentional. A business, for example, may use a patented process to produce a product – and do so knowing they are infringing on someone’s patent − in the belief they will not be caught, and that if they are, the patent owner cannot or will not do too much about the patent infringement. However, it is often the case that a business develops a new technology − not realizing that someone else developed that technology and patented it – and uses that patented technology to produce a product or service, unintentionally committing patent infringement.

Whether willful or unintentional, when patent infringement occurs − and the patent owner can prove patent infringement in court − the patent owner must pursue a civil remedy and sue the alleged infringer for damages. Patent litigation is tried in the federal courts, initially in Federal District Court.

Patent Enforcement: Also known as “patent assertion,” patent enforcement is the taking of legal action by a patent owner against the party that is allegedly infringing – or using without permission – the patent in question.

Sue for Damages: Whether the patent owner practices the patent (that is, uses the patent to produce a product or service) or not, the patent owner is entitled to compensation from the patent infringer for use of the infringed patent. That means a jury (in the case of a jury trial) or a judge (in the case of bench a trial) has to decide first if patent infringement has occurred, and second, determine how much the patent infringement defendant should pay the patent infringement plaintiff for the use of his, her or its patent.

An award from a trial will only address past use of the patent. The patent owner will then need to negotiate a licensing agreement with the infringer for future use of the patent.

Out-of-Court Settlements: Like most civil lawsuits in the US court system, many patent suits end up being settled out-of-court and do not actually go to trial. At a trial, either side can win big, but either side can lose big, too. So both sides usually meet before the trial and attempt to work out an agreement they can both live with. The other advantage of an out-of-court settlement is that it cannot be appealed. Either side can win in court, only to face an appeal of the verdict by the other side, dragging out the case for years.

While a patent infringement settlement will cover both past use of the patent as well as its future use (if the patent is still valid and has a few years to go), the settlement is usually a lump sum payment that covers total use of the patent.

Patent Infringement Litigation: Prosecuting a patent infringement lawsuit is very expensive. In fact, attorney fees and litigation expenses can run into the millions of dollars. However, there are law firms and patent enforcement firms (companies that specialize in patent enforcement) that will take patent infringement litigation on behalf of a patent owner on a partial or total contingency basis. That is, the patent owner (the plaintiff in the lawsuit) pays part of the costs of the lawsuit – or even none of the costs at all – and the law firm or patent enforcement firm is paid out of any award or settlement the lawsuit (or, sometimes, lawsuits) produces.

The term “contingency” means that the law firm or patent enforcement firm gets paid “contingent” on the outcome of the lawsuit. If the patent owner loses at trial and fails to reach an out-of-court settlement, the law firm or patent enforcement firm receives no fee for its services.

Typical Awards or Settlements: There really is no average or typical award or settlement. Patent owners can win from a few thousand to several million dollars based on several factors. If the infringement of the patent is willful on the part of the infringer, and it can be proven in court, the plaintiff may be able to receive treble damages, considerably increasing the size of the award or settlement.

To find a firm to handle your patent infringement litigation, use our FREE Patent Litigator and Patent Enforcement Firm Referral Service.