Can a Pending Design Patent Application Be Infringed?
The short answer is no—a design patent application cannot be infringed. Only a granted design patent can be infringed. However, be aware that a design patent application remains secret until it does grant as a patent which is unlike a nonprovisional application. Because of this, if you do find out that you are infringing on […]
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 […]
Federal Circuit defines competitive injury for false patent marking
False patent marking occurs when a company marks a product as “patent pending” or lists a patent number when no valid patent or application actually exists for the product. This practice is sometimes used to unfairly deter competition. Occasionally, companies make innocent mistakes, inadvertently marking products as patent-protected. (For proper patent marking practices, see this […]
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
The Benefits of Patent Marking Upon filing a patent application or receiving a granted patent, a business may choose to mark its product as “Patent Pending” or “Patented” along with the patent number. Marking a product as Patent Pending warns competitors that duplicating the product could lead to infringement claims if the patent is ultimately […]
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 invention. However, the Doctrine of Equivalents […]