Patent infringement can be scary because patent infringement litigation is expensive and the outcome is uncertain. This is true whether you are the one being sued for infringing on another’s patent, or are suing someone else who has infringed on your patent.

There are several ways that another person or company could infringe on your patent:

• Direct infringement. When another party manufactures a patented product without permission.
• Indirect infringement. When another party aids or encourages an infringer.
• Literal infringement. When the elements recited in a patent claim and an infringing device or process are identical.
• Contributory infringement. When another party provides a direct infringer with a part that would have no other use except for infringing on an existing patent.
• Doctrine of equivalents. When a device or process does not literally infringe on an existing patent, but performs the same task in substantially the same way to achieve the same result.

The burden of proof in a patent infringement lawsuit rests with the patent holder, who must prove by the greater weight of evidence (“preponderance of evidence” standard) that the patent has been infringed.

Common Patent Infringement Defenses

Typically, an infringer will counter an infringement suit with claims that the patent is invalid. Patents may be found invalid if:

• The patent owner committed fraud in filing the application;
• The patent is the result of anticompetitive business actions;
• The patent does not meet the standards of novelty or nonobviousness.

Penalties for Patent Infringement

If a court finds that infringement has occurred, it will typically order the payment of actual damages or a reasonable royalty to the patent holder and will also award attorney’s fees and court costs to the prevailing party. If the infringement was found to be willful — when a party exhibits intentional disregard for a patent owner’s rights and continues to infringe even after notice is served — the court can treble the damages.

Avoiding Costly Patent Infringement Claims

The term “patent troll” has entered the corporate lexicon thanks to the proliferation of entities that exist solely for filing frivolous patent litigation. There are several things that should be considered to help avoid costly patent infringement claims:

• Prevention. Search for patents and trademarks online so you do not introduce anything to the market that already has a patent or trademark.
• Maintain IP: Ensure patents, trademarks and copyrights are current and identify any areas of concern for management.
• IP Insurance. Frivolous patent infringement suits have become so common that some insurance companies offer policies to help protect businesses from patent litigation.
• Legal help. If you receive notification of a patent lawsuit or a letter demanding payment, consult a business litigation attorney before you do anything. An attorney can also work with you to identify any areas of concern for management.

Williams Commercial Law Group, L.L.P., has the experience and reputation that you want when you are dealing with a business-related lawsuit. We are here to obtain the best possible outcome for your situation. Do not hesitate to contact Williams Commercial Law Group, L.L.P., at (602) 256-9400, and see how we can help you resolve your legal matter.