Patent infringement damages are those monetary rewards available to patent owners and licensees whose patented/licensed invention is used, made, or sold in an unauthorized manner. The two main forms of patent infringement damages are reasonable royalties and lost profits. Treble damages and attorneys’ fees are also available in cases of willful infringement. For more information, see our blog post, What are patent infringement damages?
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A patent protects a new and useful invention by securing the right in the patent holder to exclude others from making, using, offering for sale, selling, or importing an invention—all for a limited time. Thus, a patent protects an inventor’s exclusive right to engage in these activities pertaining to their invention. For more information, see our blog post, What Does A Patent Protect?
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A patent is a form of intellectual property that gives an inventor the right to exclude others from making, using, offering for sale, selling, or importing an invention—for a limited time. The three types of patents recognized by the United States Patent and trademark Office (USPTO) are (1) utility patents, (2) Design patents, and (3) Plant patents, all covering different types of inventive assets. For more information, see our blog post, What is a patent?
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A cease and desist letter is an informal means of enforcement used by the owner of certain intellectual property to notify an unrelated third-party that they have use of the same or similar IP that infringes upon the owner’s rights and allows that third party an opportunity to “cease and desist” all such infringement right away, in an effort to avoid more formal, and costly, enforcement tactics.
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The first step in protecting valuable intellectual property rights is to ensure you do, in fact, own such rights. Since patent, copyright, trademark and trade secret rights arise differently, you should first ensure that your use is enforceable against what you have identified as an infringing use. The next step is to determine what options are available to you and which of those options are within your budget and appetite for conflict. Enforcing IP rights can take many forms, ranging from cease and desist letters, to UDRP proceedings or arbitration, proceedings with the Trademark Trial and Appeal Board, or federal lawsuits.
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Licensing Agreements, particularly in the context of intellectual property, are written, legal contracts between two parties wherein the owner of the IP at issue gives permission to another party to use the IP. The agreement, between the licensor (the IP owner) and the licensee (the permitted party) should set forth the specific terms of the agreement between the parties, including the specific IP at issue, whether the license is exclusive or non-exclusive, terms of use, term of the agreement, what rights are retained by the licensor, and other key terms.
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The transfer or sell of IP rights generally occurs through a written assignment of ownership rights from the owner to another party. An assignment is a complete transfer of all ownership in and rights to the IP included in the assignment. A license, on the other hand, is a written agreement allowing a third party to use certain IP for a stated term and does not transfer ownership of the IP.
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The protection of software most often involves copyrights, as the two go hand-in-hand. Since the greatest protections are afforded to federally registered copyrights, the most important steps in protecting your software are confirming ownership of the software and registering with the U.S. Copyright Office. Similarly, some software may be subject to patent protection, which requires federal registration with the United States Patent and Trademark Office. Once registered, protection of software is accomplished through standard means of IP enforcement – cease and desist letters, alternative dispute resolutions measures such as arbitration or mediation, and even federal court litigation. However, specific to software is the need to ensure that you are utilizing proper software development, licensing, and indemnity agreements as well.
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For a patent to be issued, your idea must meet four conditions: (1) able to be used; (2) a clear description of how to make and use the invention; (3) new, or “novel”; and (4) “not obvious.”
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U.S.-based owners of various forms of intellectual property need to understand that U.S. laws typically do not protect against foreign infringement. The best means of protecting IP internationally is to seek formal registration in whatever countries your business operates.
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Utility patents protect the utility or function of an invention or improvement thereof, whereas design patents protect the design or ornamental appearance of an article of manufacture.
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Patent troll litigation is where business acquire patents not through inventorship and without the intent to use these patents, and then bring lawsuits or demands against other companies to force settlements or obtain licensing fees.
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The patent prosecution process generally involves a pre-grant stage, comprised of preparing and filing the patent application, arguing and negotiating with the USPTO, and the granting of the patent, and a post-grant stage wherein the rights afforded by the patent are maintained and enforced for the remainder of the patent period.
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There are two general elements to a patent infringement claim: (1) the plaintiff’s ownership of a valid patent; (2) infringement of the patent by the defendant.
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Read for a list of defenses to a claim for patent infringement, including invalidity, licensed, unenforceability, and patent exhaustion.
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A patent gives inventors the exclusive right to make, use, sell, or import their invention for a limited time, protecting it from unauthorized use.
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Patent infringement damages are those monetary rewards available to patent owners and licensees whose patented/licensed invention is used, made, or sold in an unauthorized manner. The two main forms of patent infringement damages are reasonable royalties and lost profits. Treble damages and attorneys’ fees are also available in cases of willful infringement.
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Patent infringement damages include lost profits, royalties, and in willful cases, treble damages and attorneys’ fees for unauthorized use of a patented invention.
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