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Patent infringement

Patent infringement is the unauthorized use of your property Patent infringement consists of the unauthorized making, using, offering for sale or selling any patented invention within the United States or United States Territories, or importing into the United States of any patented invention during the term of the patent. When patent infringement happens, the patentee may sue for relief in the appropriate Federal court. The patentee may ask the court for an injunction to prevent the continuation of the patent infringement and may also ask the court for an award of damages because of the patent infringement. The word "infringement" means an encroachment upon the domain belonging to a patentee that is described by the claims of her/his patent. If a patent is analogized to real property, the claims correspond to the boundary recited in the deed. Invasion of the boundary of a landowner's real estate is called trespass, while invasion of a patentee's claims is called infringement. Both are civil wrongs or "torts." Unlike a trespass, patent infringement is a statutory wrong and is governed by federal law. 35 U.S.C. 271 defines infringement as "whoever without authority makes, uses, or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent. A determination of patent infringement involves a two-step process. First, the claims are analyzed by studying all of the relevant patent documents. Second, the claims must "read on" the accused device or process. This merely means that the device or process is examined to see if it is substantially described by the claims; in other words, the claims are tested to see whether they describe the accused infringement. Infringement can be direct, indirect, or contributory. Anyone who makes, uses, or sells the patented invention is a direct infringer. If a person actively encourages another to make, use, or sell the invention, the person so inducing 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 patented invention. Good faith or ignorance is no defense for direct infringement, but it can be for indirect or contributory infringement.

The remedies for infringement consist of:


1. 2. 3. 4. Injunctive relief, damages (including treble damages for willful infringement), attorneys' fees in some cases, and court costs.

Injunction Courts frequently grant injunctions to protect property rights in patents. An INJUNCTION is a court decree that orders an infringer to stop illegally making, using, or selling the patented article. An injunction is only granted when an award of monetary damages will not adequately remedy the situationfor example, when an infringer plans to continue the unlawful acts. If an individual disobeys an injunction and continues to make use of an invention without permission, he will be guilty of CONTEMPT and subject to a fine or imprisonment or both. Damages In an action for infringement of a patent, compensation for prior infringements can be awarded; however, compensation will be denied for use of the invention before the date the patent was issued. Where there is an infringement, the court will award the patentee actual damages adequate to compensate for the loss in an amount that is equal to a reasonable royalty for the infringing use, together with interest or costs set by the court. If the jury in a trial does not determine the amount of damages, the court will. In either case, the court, under the authority of statute, can increase the damages awarded by the jury up to three times the amount determined, called treble damages. Treble damages are punitive and awarded only in certain instances, such as when the infringer intentionally, in bad faith, infringed the patent.

TYPES OF INFRINGEMENT 1. Literal Infringement 2. Doctrine of Equivalent (Function/way/result). Explain prosecution history estoppel.(Case study of dye)