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Anyone who makes, uses, sells, offers to sell or imports a patented invention (without the owner’s consent) infringes the patent. There are two types of infringements: direct and indirect. Direct infringement may be literal or non-literal (the latter being under the doctrine of equivalents). Indirect infringement is also called vicarious infringement. Inducement to infringe and contributory infringement are two types of indirect infringement. Contributory infringement can be committed by knowingly selling or supplying an item for which the only use is in connection with a patent invention.
In any case, the analysis of a potential patent infringement involves a two- part process. First, the claims of the “infringed” party are analyzed to determine their scope. The prosecution history of the patent is relevant to this first step. Second, the alleged “infringing” invention is analyzed against the patent’s claims. Every requirement of each claim must be considered to see if each thing set out in the claim also appears in the allegedly infringing invention. If one or more things set forth in a claim are not present in the subject matter being reviewed, there is not literal infringement of that claim. On the other hand, if each element which is set out in even one claim of the patent is present in the allegedly infringing invention, then there is a literal infringement. When literal infringement is found, that is normally the end of the inquiry.
If, however, there are some differences between the patent and allegedly infringing invention, further analysis is required. The U.S. Supreme Court has stated: “One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare form of infringement.”
Possible remedies for patent infringement are:
Whether you are an individual, a start-up company or an established corporation, contact the patent attorneys at The Law Office of Anthony N. Elia to learn more about our successful, cost-effective and innovative legal solutions.