How to Evaluate Potential Infringement on behalf of the Patent Owner?
Patent infringement involves using, marketing or incorporating a patented process, item or material without authorization and without making the required royalty payments. A breach occurs in different ways: one could infringe the patent deliberately where nothing gets changed.Instead, the content remains the same as the original document. The infringement could also be deliberate, but it is changed in a way to conceal the act to avoid similarity. Whereas the other form is accidental infringement where the intention was not to infringe any invention but after a patent search is conducted, it is found to match contents of another document.
It is hard for an individual to know of infringement but it is even more difficult to prove of any act of infringement on their work. Individuals need to understand that if you no longer pay the maintenance fee for your patent, they should not bring forward infringement cases since protection of your invention no longer exists. Below is a process followed to evaluate infringement.
Conducting a Patent search
A patent search is done to verify that the invention id the original idea of your client and that they have not transgressed on another individuals’ invention. It also shows that his or her creativity had been authorized and that no other design similar to theirs is authorized. If the patent research shows that the design was not their original idea and that the design was not licensed, the evaluation process ends there due to lack of legal basis to continue with the evaluation. The patent search could be conducted in other countries where the patent is applicable hence it could take a longer time than the anticipated time frame.
Evaluation of the Infringement claim
The infringement claim must have a basis, and they should be in a position to prove that your claims are valid. Evaluation occurs since one must establish whether the invention is legal and if whether third parties pay royalties to use it since infringement may arise due to usage by people paying fees for the invention. As one tries to evaluate the claim, they should also know what type of breach has been conducted. If the third parties pay royalties, there happens to be no infringement because they are following the correct legal system.
The evaluation also occurs to make sure that your patent validity period is not over and it still protects your invention from use by other individuals without your authorization. The evaluation also could take time since decisions are not made hastily, and the other party is monitored closely to give time to collect enough infringement evidence if there is any.
Prove of Infringement
The owner has to prove infringement by a third party if there is the carrying out of a prohibited act. The act to be termed banned must have been carried out after the publication of the application or after the patent was issued before an announcement was made. The action must have been carried out in the country where a license for that particular invention was authorized. Infringement is proven if one is found to make use of the invention and yet they do not pay royalties for its use. If the violation is confirmed, the patent holder may choose to sue the offender and as well receive compensation for unauthorized use of the patent. If the patent holder decides to sue him or her, the claims must be brought before the court within the first six years from the infringement date after which the application is termed as time-barred thus the infringement is ratified.
Though you can prove infringement and decide to file a suit against the other person, one should be aware that it is not mandatory for them to be found with the same mistake in court and that could mean that you could have to refund all the money he or she has used in the process. Thus, it is advisable before taking matters to court; one should send the infringer a letter telling them to halt any infringement practices. If they do not comply, that is when you should file a suit against them.
Determine the identity of the infringers
After deducing that it is correct an invention is being infringed, the patentee has a right to know who is violating them since they only have assurance not the identity of those infringing them. If infringement concerns products, on can follow up their sales and online platforms if any and also read customers comments on the product, an activity that would prove very productive since one can monitor them.
Patent infringement occurs daily in every industry and sector in the economy, and it is up to the patent holder to fight against patent infringement. Though the patent office issues patents, even when infringement claims are brought before them, they do not investigate or pursue the claims. Through a helpful process, evaluation of infringement is very costly especially if the individual is not doing it by themselves.