Direct infringement occurs when a person (e.g., company) makes a patented product. Indirect infringement occurs when the person or entity helps someone else make the patent product. By the end of this article, you’ll understand what they mean and if your liable for patent infringement. I'll also discuss how understanding these concepts helps you draft claims. What is Direct … [Read more...]
Direct infringement
Direct infringement of a patent occurs when an entity without permission from a patent owner makes, uses, offers to sell, sells a patented invention or imports the patented invention into the United States. 35 U.S.C. §271(a). Browse related articles below.
Divided direct patent infringement based on attribution
In Akamai v. Limelight (Fed. Cir. Aug. 13, 2015), the Federal Circuit sitting en banc provided a comprehensive definition of direct patent infringement under 35 U.S.C. §271(a) for a method claim when the steps of the method claim are performed by two or more actors, or also known as divided patent infringement. For a discussion of the litigation history of Akamai v. … [Read more...]
Claim drafting tip: Focus on direct, not indirect infringement
Bottom line: The claims of a patent should, if possible, be specifically and separately directed to each one of several entities within a distribution chain such as the end user, supplier, component supplier, or manufacturer so that each of these entities can be held liable for direct patent infringement. This may be difficult and not possible to accomplish but it should be a … [Read more...]
Doctrine of Equivalents not limited by foreseeability of the structure
In determining the scope of patent protection under a patent, the claims are construed literally to determine whether the accused product infringes the patent’s claims. If infringement is not literally found, then a determination is made whether those elements or limitations not literally found in the accused product can nevertheless be found to encompass the accused product … [Read more...]
Exceptions to limiting effects of Festo to the Doctrine of Equivalents
No doctrine of equivalents for narrowing amendment Integrated Technology Corporation (ITC) v. Rudolph (Fed. Cir. November 4, 2013) is a straightforward application of the rule from the Festo case and its exceptions. Under Festo, prosecution history estoppel prevents a patentee from recapturing, under the doctrine of equivalents, subject matter which the applicant … [Read more...]
Proper uses of a means plus function limitation
The following case illustrates my propensity for limiting my use of what patent attorneys call the means plus function claim limitation. There are particular uses for means plus function limitations but more often than not, they seem to be more trouble than they are worth. I will go over some instances where I think that they are useful down below. Background of means plus … [Read more...]
Willful blindness sufficient for active inducement of infringement
Infringement may be direct or indirect. In direct infringement, a person makes, uses, sells, offers for sale, or imports the patented product or practices the patented method. In indirect infringement, the person induces another to infringe (i.e., active inducement of infringement) or contributes to the infringement by another. In Global Tech. v. Pentalfa, the narrow issue … [Read more...]
Reducing Scope of Doctrine of Equivalents with Ensnarement Defense
As discussed in Avoiding Patent Infringement, patent claims define the boundaries of patent protection. Patent infringement can occur either literally—where the accused product directly practices the claimed invention without variation—or under the Doctrine of Equivalents. This doctrine covers cases where the accused product includes minor modifications to the claimed … [Read more...]