What is patent infringement?
A patent gives the patent owner the legal right to sue anyone who makes, uses or sells the patented invention in the country where the patent is granted. Patents are national in scope, so the infringement has to take place in the country where the patent is granted. Importing a product into the country where the patent is held can constitute patent infringement.
What is the process involved?
Generally, when a patent owner learns that someone has infringed their patent, the owner will have his/her lawyer issue a "cease and desist" letter and deliver that letter to the infringing party. Cease and desist letters usually have a time limit for replying, failing which legal action will usually be commenced.
What's in a Cease and Desist letter?
Generally, the cease and desist letter will identify who the patent owner is, the patent number of the patent being infringed, and what actions the recipient is taking which is causing the patent to be infringed. The cease and desist letter also usually contains terms demanding that the infringing party surrender all infringing copies of the product, communicate to the patent owner who the products have been sold to, and occasionally, the cease and desist letter will demand certain financial payments to cover the patent owner's costs and lost profit from the infringement.
Who can be sued for patent infringement?
Anyone who made, used or sold the infringing product commits patent infringement. Also, anyone who induces or encourages others to infringe the patent (i.e. provides the necessary components for actual infringement to occur) is also liable for patent infringement.
Can you be sued for infringing a foreign patent?
YES! If you import, sell or distribute an infringing product in a country where the product is patented, then you can be sued for patent infringement in that country.
What defenses can I use against patent infringement?
The first defense is to argue that the product you are selling is not covered by the patent you're alleged to be infringing. This requires careful examination of the patent and your product. The second approach is to try to invalidate the patent by arguing that it was improperly granted for one of many different reasons. This may require a literature search to find the same or similar invention which existed before the patent application was filed.