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Wealth of Ideas, September 2004
There are, unfortunately, no “patent police.”
When a patentee finds a product or process substantially
similar to his or her patented invention, the onus is
on the patentee to determine if infringement actually
exists.
Infringement is measured by the patent’s claims,
which are of two types: dependent and independent. Dependent
claims follow and refer to an independent claim and
incorporate all of its limitations. Thus, if an independent
claim is not infringed, neither will be the dependent
claims that refer to it. For this reason, infringement
analysis typically focuses on the independent claims.
When analyzing a claim for infringement, remember the
all elements rule: each limitation of the claim must
be met by the accused product or process. The accused
structure (or process) may have additional features
that are not found in the claim, but it must meet every
limitation of the claim in order to infringe it.
There are two types of infringement: literal infringement,
and infringement under the doctrine of equivalents.
Literal infringement occurs when the claim language
literally reads on the accused device or process. Infringement
under the doctrine of equivalents may occur when a product
or process does not precisely satisfy the language of
one or more of the claim limitations, but nevertheless
performs the same function, in substantially the same
way, for the same purpose as the claim limitation. The
application of the doctrine of equivalents may be limited
by factors arising during the prosecution of the patent
and also by recent changes in the law (the famous or
infamous Festo decision). As a result, literal infringement
cases are strongly preferred over those where infringement
is found only by application of the doctrine of equivalents.
Once an inventor is reasonably certain that his or
her patent is infringed, it is important to determine
whether the accused device has been offered for sale
in the United States (assuming the infringed patent
is a U.S. patent). U.S. patents have effect only within
the U.S, but a foreign company may be sued in the U.S.
for acts performed here.
When infringement is suspected, a patent attorney or
contingency patent enforcement firm such as General
Patent Corporation International should be consulted
to confirm the infringement and plan and undertake an
appropriate enforcement campaign.
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