In the United States, U.S. patents grant their owners the exclusive manufacture, use and sale, among other ownership rights, of the inventions. These are considered as grants of limited monopoly granted to inventors by the federal government, specifically by the U.S. Patent and Trademark Office (USPTO). But in a world filled with copycats, patents aren’t always respected by the non-holders, an action that can result in patent infringement.
Did you know that patent rights are older than freedom of speech and freedom of the press? Patent rights are actually included in the U.S. Constitution, which was adopted in 1787, under Article I, Section 8! Many of the basic American rights were only established in the Bill of Rights in 1791 or 14 years later.
Through the years, the implementing rules and regulations of patent rights changed in accordance with the times. In the 21st century, these are governed by 35 United States Code, a federal law.
Why are these things important for an inventor to know? If you read the code in its entirety – or at least, gain a basic understanding of its provisions – you will have a deeper understanding of patent infringement.
In a nutshell, patent infringement is the commission of a prohibited act regarding a patented invention without the current patent holder’s or owner’s permission. Keep in mind that patents are property and, thus, these can be bought and sold – the current patent owner must be aggrieved by the commission of the prohibited act. The act can take the forms of making, using, selling or offering to sell, and importing the invention or its equivalent.
Emphasis must also be made that no patent infringement action can be started without a valid patent issued. But inventors can secure pre-grant protection under 35 U.S.C. § 154(d) or file a provisional patent application (PPA).
Wilful and Unintentional Infringement
Wilful patent infringement refers to the deliberate commission of the prohibited act on the part of the offender. Unintentional patent infringement isn’t an excuse for committing it, an adjunct to the principle that ignorance of the law doesn’t excuse the offender.
The former typically involves the offender ignoring the fact that a patent for the product or process already exists and going ahead with its manufacture, use or sales. Many copycats are guilty of this type of patent infringement.
The latter can arise from the cliché that great minds think alike. In many cases, two inventors create essentially the same invention even when they work independently (i.e., the other has no knowledge about the other’s work). In these cases, the general rule is that the inventor who applies for a patent and who has sufficient proof that he was the first to make the invention will be awarded patent rights.
Do you have issues about patent infringement? You should consult a patent attorney for legal advice ASAP!
It is also vital to submit your patent application ASAP. As the patent application is quite professional, we suggest hiring an experienced patent attorney for individuals and organizations. For details of the patent application, please contact us for free consulation.
CtR Intellectual Property Co.
Hong Kong Patent Application Grant Authorised Patent Agent
Offering Professional Patent and Trademark Application & Related Services