What is Patent infringement & how to avoid it.

Patent infringement

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Patent infringement

• What is patent infringement?

• Type of patent infringement.

• Doctrine of equivalents.

• How to avoid patent infringement.






What is patent infringement?

• Patent infringement is an unauthorized act of selling, manufacturing, offering to sell, importing or using a in-force patented invention without the permission of patent holder.

• Since the patents are jurisdiction based, infringement is only possible in a country where patent is in-force.

• Technically, all the elements of one or more of the claims of a patent should ‘read’ on the technology. If even a single element of the claim is missing from the technology, it does not infringe on that particular claim(s).






Types of patent infringement?

There are two types of patent infringement:

• Direct infringement

• Indirect infringement – Indirect infringement is further of two types:

• Induced infringement

• Contributory infringement






Direct infringement

Direct infringement occurs when an individual in an unauthorized way, use, sell, make, offer to sell in a particular jurisdiction or import in that jurisdiction any patented invention without taking permissions from the patent holder.





35 U.S. Code § 271 (a) “Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”


Indirect infringement

As the name suggests: “whoever actively induces infringement of a patent shall be liable as an infringer” OR In other words, not necessarily a company have to infringe a patent directly in order to be an accused infringer.

Types of Indirect infringement:

• Induced infringement

• Contributory infringement






Induced infringement

Induced infringement is one in which a middle party (induced infringer) enables (or help, influence or ‘induce’) a third party (direct infringer) to practice the patented invention.

Where help could be in a form of , assembling the patented product; preparing instructions for consumer use; providing instructions that detail how to produce the patented invention or licensing plans or a process which enable the licensee to produce the patented product or process.





35 U.S.C. §271 (b) “Whoever actively induces infringement of a patent shall be liable as an infringer.”


Contributory infringement

Contributory Infringement is a type of indirect infringement under which if a party contribute to the infringement of a patent claim may be held liable. Accordingly, a supplier of a particular component is held liable for contributory infringement if the component

(1) constitute(s) a material part of the invention;

(2) the supplier was aware that the component “was especially made or adapted for use in an infringement of such patent”;

(3) the component is not a staple article, and

(4) the component was used to commit at least one act of direct infringement.





35 U.S.C. §271(c) “Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use, shall be liable as a contributory infringer. “


Doctrine of equivalents.

Till now we have learned that infringement is only possible if each and every element of the claim reads on or is identical to allegedly infringing device or process. This is called as “literal infringement”. However, infringement is also possible in case where there in no literal infringement, a claim may be infringed under the ‘doctrine of equivalents’ if some other element of the accused device or process performs substantially the same function, in substantially the same way, to achieve substantially the same result.

The scope of patent infringement in case of non-literal infringement is sought by considering the following:

- the doctrine of "prosecution history estoppel“

- the prior art.






How to avoid patent infringement.

• Conduct a freedom-to-operate search:

Before producing a product , seller must get a freedom-to-operate search conducted by a professional to ensure if they have proper right to practice that invention, if there already exist a patent in the country where seller wish sell the product then he must make sure to get a license from the patent owner or design around his product such that it does not infringe upon the patent.

• Insure you IP:

As patent infringement cases are becoming more and more popular, also because of the growth of patent troll industry. Several insurance companies have started providing protection to businesses. The policy called “Intellectual Property Insurance” protects a business in the event of a lawsuit against an insured product or process.

• Design around your product:

Despite the fact that freedom to operate search is conducted to find potential infringing patents and the search is limited only to active or pending patents; expired/inactive patents may allow an inventor to create, change, and/or tweak current processes of the invention to “design around” possible cases of infringement.






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What is Patent infringement & how to avoid it.

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