Patent Infringement

In our previous blog “An introduction to Patent Infringement and Validity”, we have looked at when you might need to consider the issues of patent infringement and validity. In this blog, we are going to look at patent infringement in more detail.

What is Patent Infringement?

The scope of protection provided by a patent is defined in the claims of the patent document.  A patent is infringed if the product you make or the process you use (for example), has all of the features or steps of the invention as set out in the claim of the patent. 

If your product has additional features or your process has additional steps, this is not relevant to the question of infringement. 

Sometimes the wording of a patent claim is not as clear as it could be, and it can be difficult to decide whether your product or process has all the features of a patent claim.  In this situation, a patent attorney can assist you with interpreting the meaning of a claim and determine the risk of infringement.

What if you think you might be infringing a patent?

As discussed in our earlier blog, it is preferable to look for potentially relevant third party patents early in the development process to reduce the risk of patent infringement.  However, sometimes a potentially relevant patent is not identified in a patent search and you may not be aware of it at the development stage.

If you are concerned that you may be infringing a third party patent, we recommend you consult a patent attorney as soon as possible.  They will be able to advise you on infringement risk and then work through options for minimising or reducing that risk.  There are various options which may be relevant to your particular circumstances, such as (i) modifying your product or process, (ii) assessing validity of the third party patent and (iii) negotiating a licence to operate within the scope of a patent.

What if you think someone else is infringing your patent?

To begin with you should gather as much information as possible about the third party product/process, so that your patent attorney can carry out an assessment of infringement.  If it looks likely that there is a case for infringement, we would generally recommend reviewing validity of your patent before taking action.

There are various actions that can be taken once you are sure of infringement and validity, and how to proceed will depend largely on your particular situation and the outcome you desire.  You should consider what would be a good outcome for your business.  For example, do you want or need the third party to cease manufacture or might an income from a licence be a good solution for your business?  Whilst infringement proceedings in the Patent Office or Court may be the best options for you, often it is beneficial to consider contacting the other party to negotiate a settlement.  Your patent attorney can assist you in deciding how to proceed.

The Patent Attorneys at Mathisen & Macara LLP can advise you on all aspects of patent infringement and validity, so please contact us if this blog has raised any queries.