Criminal Law Punishment and Sentencing

Topics: Patent application, Patent, Claim Pages: 6 (2295 words) Published: December 8, 2008
Patent Infringement

Patent infringement is the act of utilizing a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. In many countries a use is required to be commercial (or to have a commercial purpose) to constitute a patent infringement. The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform people what they are not allowed to do without the permission of the patent holder. Patents are territorial and infringement is only possible in a country where a patent is in force. The scope of protection may also vary from country to country, because the patent is examined by patent office in each country/area and may have some difference of patentability, so that a granted patent has not worldwide applicability. The elements of infringement are typically, any party that manufactures, imports, uses, sells, or offers for sale patented technology, during the term of the patent and within the country that issued the patent, is considered to infringe the patent. The test varies from country to country, but in general it requires that the infringer's product falls within one or more of the claims of the granted patent. The process employed involves "reading" a claim onto the technology of interest. If all of the claim's elements are found in the technology, the claim is said to "read on" the technology; if a single element from the claim is missing from the technology, the claim does not literally read on the technology and the technology does not infringe the patent with respect to that claim. In response to allegations of infringement, an accused infringer will generally assert one or more of the following: They are not practicing the patented invention; They are not performing any infringing act in the territory covered by the patent; The patent has expired; The patent (or the particular claim(s) alleged to be infringed) is invalid. This may be as a consequence of not meeting patentability criteria or a formal defect that makes the patent invalid or unenforceable; They have obtained a license under the patent; The patent holder is infringing patent rights belonging to the accused infringer, which can result in settlement of a dispute and cross-licensing (Wikipedia). In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. One also commits indirect infringement if he actively and knowingly induces another to infringe, and is liable for that infringement. Types of "indirect infringement" include "contributory infringement" and "induced infringement." No infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C. § 154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. This right to obtain provisional damages requires a patent holder to show that (1) the infringing activities occurred after the publication of the patent application, (2) the patented claims are substantially identical to the claims in the published application, and (3) the infringer had "actual notice" of the published patent application (Wikipedia).

There are two basic remedies that exist for patent infringement; namely: injunctive relief; and damages. Preliminary and permanent injunctions are provided for under § 283 of the Patent Act. Whether a preliminary injunction will issue in a case of patent infringement depends upon four factors; namely: 1) the moving party's reasonable likelihood of success on the merits; 2) the harm the moving party will suffer if preliminary relief is not granted; 3) the balance of the hardships between the moving party and the party to be enjoined;...

Cited: Beem, Richard P.  AThe Abraham Lincoln School of Patent Litigation: Plain English, Simple Exhibits & Uncommon Humor.@   Lincoln & Patents (6 Dec 2002),
Crampes, Claude and Corinne Lkanginier. Litigation and Settlement in Patent Infringement Cases.@ July2001.
Kuhn, Martin.  The Land List -- Non-Polaroid Instant Cameras.@ (2002),
McElheny, Victor K.  Insisting on the Impossible: The Life of Edwin Land.  Cambridge: Perseus Books, 1998.
Bouchoux, Deborah E. Intellectual Property: The Law of Trademarks, Copyrights, Patents, and Trade Secrets. Thomson: Delmar Learning.
Wikipedia., October 29, 2008.
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