How to Fight a Patent Infringement Case

Patent infringement is the act of interfering with an individual's or entity's ("patent holder") exclusive rights to the invention of a product (whether tangible or intangible), process, idea or an improvement to any of the three. Patent infringement can occur both directly and indirectly, but the damage that infringement can potentially cause is the same either way. The extent of the damage that infringement can potentially cause is virtually infinite, which is why patent holders--in particular, large corporations--often fiercely defend their rights whenever perceived infringement occurs. Unfortunately, this can lead to erroneous accusations of infringement, and scare individuals accused of infringement because of the authority and resources these entities often have.

Instructions

Finding Defenses for Allegations of Patent Infringement

1. Prove the patent itself is invalid by conducting an extensive search of the plaintiff's invention, and look for any previous descriptions, illustrations, photographs, depictions or offerings of the patented item that were created prior to the date of the patent application. Use search engines such as Google and Yahoo!, social networking websites or blogs owned by the plaintiff, and similar online resources to search for the plaintiff by name, the invention, characteristics of the invention, and other attributes. If you find any prior depictions, print or obtain paper copies of them. Use this to assert the patent is invalid because the patent application was not the first depiction of the invention--something that is required when patenting an invention. If the patent is invalid, no patent infringement could have occurred.

2. Review each assertion of infringement, then review the plaintiff's patent itself. Review every claim within the patent that matches the assertion of infringement. If no claim within the patent matches, you can fight the assertion by showing the patent does not give the plaintiff protection from the alleged infringement. If no assertion of patent infringement has a matching claim within the patent itself, you can fight a patent infringement case by showing no infringement actually happened.

3. Demonstrate that the patent is for an invention that would be "obvious" to any reasonable person. No patent can be obtained for inventions that are everyday, commonplace actions or items. For example, a patent for a method of wearing pants would be invalid, because this action is already obvious to any reasonable person. Keep in mind that an invention that improves an existing invention or process in a new way is valid. Barring this, you may be able to fight a patent infringement case by showing the patent never should have been granted.

4. Show that the plaintiff incurred no damages as a result of actual infringement. In order for a plaintiff to bring action against patent infringement, he must prove that he incurred damages, and that the damages were a direct result of the infringement. Even if the patent is valid and infringement truly occurred, you may still be able to fight a patent infringement case by proving no damage was caused by your actions.

References

• 35 U.S.C. § 282 (2008).
• 35 U.S.C. § 271 (2008).
• 35 U.S.C. § 301 (2008).