How to Determine Patent Infringement
The United States Patent and Trademark Office (USPTO), an agency of the Department of Commerce, issues and regulates patents in the United States. A patent gives the inventor a property right to the invention, which can be a product, process, design or plant. According to Title 35 of the United States Code, someone who "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" is guilty of patent infringement.
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Instructions
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How to Determine Patent Infringement
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Find the patent documents for inventions similar to the potentially infringing invention. This process is called a clearance search. The USPTO provides databases on its website that you can search. You can do either a quick search or an advanced search. The quick search requires only a range of years and one or two search terms. The advanced search is available for more sophisticated search methods. The site offers a help section for each type of search. You must search two databases, one for issued patents and one for pending patent applications.
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Get copies of the relevant patents. You can order copies from the USPTO by following its account setup process and paying a fee for each copy. Alternatively, you can use the copy and paste functions on your computer to create copies of the documents.
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For each relevant patent that you find, examine the claims section. The patent's claims define the specific elements of the invention that is protected. Be sure that you identify every separate element of the claim.
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Examine the invention to determine whether it uses specific elements that are protected by the claims of the patent. The invention infringes the prior patent if it uses any protected element.
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Tips & Warnings
Before you invest in your invention, get a clearance opinion from a patent attorney. The attorney will conduct a thorough clearance search or hire a specialist to conduct the search. Consulting an attorney will save you money in the long run because the formal statement from an attorney verifies that no prior patent has been issued for the invention.
Finding a patent filed before 1976 requires entering a patent number in the USPTO database. You might miss relevant patents using either of the available search methods.
The USPTO issued 157,774 utility patents in 2008 alone. The number and complexity of patents make determining patent infringement extremely challenging for the non-professional.
