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Patent Infringement

The term “infringement” means an encroachment upon the Intellectual Property or domain belonging to a patentee that is described by the claims of the applicant’s patent. Much like real property, intellectual property has boundaries. The claims of the patent are the boundaries of the intellectual property. Invasion onto a landowner’s property is called trespass, while invasion onto a patent holder’s intellectual property (as defined by the claims) is called infringement. Both are civil wrongs or “torts.” Patent infringement, though, is governed by a federal law. Because of this, a defendant must be sued in Federal Court. Every attorney in our team is admitted to a Federal Court and we have attorneys admitted to practice in the numerous federal jurisdictions including the Southern District of New York, Eastern District of New York, Northern District of New York, and District of New Jersey.

A determination of patent infringement involves a two-part process. First, the claims are analyzed to determine the scope of the Intellectual Property. This process may require ordering the prosecution history of the patent and studying relevant documents. Second, the claims and the accused infringing item are analyzed to see that the accused device or process reads on the patents claims. Every requirement of each claim must be considered to see if each thing set out in the claim also appears in the accused device. If one or more things set forth in a claim is not present in the practice being reviewed, there is not literal infringement of that claim. On the other hand, if each thing which is set out in even one claim of the patent is present in the accused structure or process, then there is direct and literal infringement. When literal infringement is found, that is normally the end of the inquiry. When the claims of a patent are read against an accused practice, they may be so close to identical that infringement is clear. Also, the accused practice may be so remote from the patent that there is no possibility of infringement. Very often, however, there are some differences, requiring further study. Sometimes, such differences are incorporated into a design after knowledge of a patent in an effort to avoid infringement. Then, the question presented is whether the accused device is sufficiently different from the patent to be held to be non-infringing. If it is too close to the patent, it will infringe. If the accused device is remote enough, it will not infringe. The U.S. Supreme Court has stated: “One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare form of infringement.”

Anyone who makes, uses, or sells a product that reads upon a patent, either directly or the equivalent, is liable for patent infringement. If a person actively encourages another to make, use, or sell the invention, that person is liable for indirect infringement. Contributory infringement can be committed by knowingly selling or supplying an item for which the only use is in connection with a patent invention. Good faith or ignorance is no defense for direct infringement, but it can be for indirect or contributory infringement.

Possible remedies for patent infringement are:

  • Injunctive relief;
  • Damages;
  • Treble damages for willful infringement;
  • Attorneys’ fees in some cases.

If you are a patent owner and you believe you have a patent infringement claim or you are being accused of patent infringement and require assistance, please email us at or call one of our patent lawyers at the office nearest you.