Patent Marking: Everything you wanted to know
Patent marking involves affixing the patent number of your patent to your product or packaging. The benefit of patent marking is that the public is given constructive notice of your patent. Infringers cannot claim ignorance of your patent to avoid liability. Infringers are liable for patent infringement as soon as possible even if they don’t […]
Can I Copy My Competitor’s Product?
Development of new product lines Businesses track new products and developments of their competitors. They attend trade shows, receive information from mutual clients about new products offered by others. In response, companies may attempt to introduce a competitive alternative. In doing so, they may reverse engineer (i.e., purchase and take apart) their competitors products. When […]
Irreparable harm easier to prove for grant of patent based injunction
One of the difficulties of securing a patent based injunction was that it was difficult to prove that the harm to the patent owner was irreparable or that monetary compensation was not enough to make the patent owner whole due to the infringement of the patent. In Metalcraft v. Toro Co. (Fed. Cir. 2017), the […]
Active inducement of infringement in physician patient relationships
Background In Eli Lilly v. Teva (Fed. Cir. 2017), the patent owner (Eli Lilly) sued Teva under a theory of active inducement of infringement. In particular, the patent owner asserted that Teva induced others to infringe Eli Lilly’s patent (U.S. Pat. No. 7,772,209). Teva was not accused of directly infringing the patent itself, but instead […]
Process patent blocks importation of product
1. Process patent may be used to block importation of products made with patented method steps Everything begins and ends with the claim set since the claims define the scope of protection afforded under the patent and to a large extent also drive the structure of the patent application. The claims are generally directed to the […]
CAFC defines competitive injury for false patent marking
In order to unfairly deter competition, companies would falsely mark a product as “patent pending” or even place a patent number on the product when no patent application or patent existed. This is referred to as false patent marking. Sometimes companies would make an innocent mistake and falsely mark their products as patent protected. Click […]
Attacking patent claims as indefinite made easier
In Interval Licensing, LLC v. AOL, Inc. (Fed. Cir. Sept. 10, 2014), the Federal Circuit invalidated a patent claim as being indefinite under a new standard set forth by the Supreme Court of the United States in Biosig v. Nautilus (S. Ct. April 28, 2014). Interval Licensing is instructional not just for evaluating indefiniteness under […]
Everyone in the supply chain could be sued for patent infringement
Patent owners can sue anyone up and down the chain of distribution for patent infringement of the patent. Manufacturers, distributors, and end users are all possible litigants. For example, the end user can be sued for using the patented invention. The distributor can be sued for selling the patented invention. The manufacturer can be sued […]
Broken chain of priority invalidates patent
The filing of a continuing patent application (i.e., continuation, divisional, or continuation in part application) may have significant benefits for the patent owner. For example, these continuing applications may be used to secure patent protection for the previously unexamined subject matter (i.e., non-elected inventions) or seek broader patent protection for what has already been granted. […]
How to invalidate a patent based on a restriction requirement
I. Basics of a restriction requirement In a restriction requirement, an examiner on your case is (1) indicating that the claim set has claims that are directed to different inventions and (2) requiring you to choose one of the inventions for examination. The choice is generally simple in that you select the commercial […]
Combine Claim Elements to Avoid Infringement
Claim drafting is one of the harder aspects of preparing a patent application. The reason is that the patent attorney must balance broad claim langauge and avoiding the prior art. A broad claim is desireable because competitors will have difficulty designing around your patent, should one issue. However, broader claims are also subject to […]
Can I Copy My Competitor’s Product? (Design Patent)
Due diligence in searching for a competitor’s patents at the beginning of the design and manufacturing process may save more money in the long run since it is typically less expensive to make adjustments to a product earlier on during the design and manufacturing process than to make changes to avoid infringement after launch of a product.
Penalty for False Patent Marking
This blog post has been updated due to the America Invents Act enacted September 16, 2011. See Virtual patent marking and false patent marking post. Upon filing a patent application or issuance of a patent, a product disclosed by the patent application or covered by the claims of the issued patent may be marked either “Patent […]
Reducing Scope of Doctrine of Equivalents Via Ensnarement Defense
As previously discussed in “Avoiding Patent Infringement,” the claims define the metes and bounds of patent protection afforded under a patent. The claims can be infringed either literally which means that the alleged infringer practiced the claimed invention without any deviation. If the alleged infringer practiced a variation of the claimed invention, then liability for […]