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General Patent Represents Patent Owners Facing Patent Infringement

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Patent Infringement

The basis of the U.S. patent and copyright system goes back to the original U.S. Constitution that was ratified in 1787. The Constitution authorizes the U.S. Congress to establish a system that grants a “limited monopoly” to “inventors and writers” with the goal being to “promote useful science and the arts.” Today, the U.S. Patent and Trademark Office issues about 180,000 patents a year, with about half issued to non-U.S. residents or businesses. It is a common practice for an inventor, business, university or other entity to first file for a patent in its own country, and then file for a U.S. Patent. A patent is only enforceable in the country that issued it. So a Japanese Patent can only be enforced in Japan. A German company, for example, could manufacture a product that infringes a Japanese Patent and sell it in countries all over the world, and the Japanese Patent owner can do nothing until that company tries to sell its products in Japan.

The special value that a U.S. Patent has is the size of the U.S. economy. When a settlement is reached in a patent infringement lawsuit, or the case goes to trial and the patent owner wins, the settlement or award at trial is based on either the dollar or unit sales of the infringing product. For almost any product or service that is sold worldwide, the United States is the largest market for that product or service. Accordingly, if that product is infringing a patent, the largest potential patent infringement settlement will come from the largest market for that product – the U.S.

So while a patent owner in Korea may decide to enforce his Korean Patent, if he has a U.S. Patent, enforcing the U.S. Patent in the U.S. will produce a much larger return than enforcing the Korean Patent in Korea. The Patent Cooperation Treaty (PTC) makes it easier for inventors in the countries that participate in the treaty to secure patents in the other countries that are parties to the treaty. A multi-national patent application process – commonly referred to as the “Patent Prosecution Highway” or PPH – enables a patent owner in one country to apply for a patent in the U.S. and the other countries that are parties to the treaty.

Willful vs. Unintentional Infringement

It is important to understand that patent infringement is patent infringement, whether willful or unintentional. It is possible for a business to independently re-invent an existing patented invention, and unknowingly bring a product or service to market that infringes a patent. While the infringement is unintentional, it iis still infringement, and the patent owner is entitled to reasonable royalties.

If, however, the patent infringement is willful – the infringer knew there was a patent covering the technology used in the product or service it is selling – that is also infringement. The difference is that if willful infringement can be proved, the patentee could receive triple damages!

What Constitutes Patent Infringement?

It is entirely possible for two products to look alike and perform the same function, yet one is covered by a patented technology and the other is not. For example, a gasoline engine and a diesel engine are similar in appearance and perform the same function, but the internal technology is totally different. For a product or service to infringe a product, each and every limitation of least one claim in the U.S. Patent must be found in the accused product or service. The verbiage in U.S. patent law is that the claim must “read on” the device or process for there to be infringement, and if a single limitation in the claim is missing from the accused product or service, there is no infringement. This is known as the “all elements” rule.

If you believe your U.S. Patent is being infringed, complete an Enforcement Analysis Request. General Patent will perform a no-cost analysis of your patent assertion claim.