A Brief Explanation of Patent Rights and Infringement

By Jack Passero

A patent grants the exclusive right to prevent others from making, using, selling, or importing an invention within the United States. This protection typically lasts for 20 years from the original filing date, subject to maintenance fees and potential adjustments.

It's crucial to understand that a patent doesn't confer the right to personally make or use an invention. Instead, it safeguards the inventor from competition. A patent holder's ability to practice their invention can be limited by existing patents held by others or by applicable laws.

For example, if you patent a basic pencil design—a graphite core encased in wood—you have exclusive rights to prevent others from producing similar pencils. However, if someone else patents an eraser attached to a pencil, neither of you can produce the combined product without the other's permission. This creates a phenomenon known as 'blocking patents,' where broad patents and improvement patents mutually restrict each other's use. Often, such disputes require contractual agreements to resolve.

Once a patent expires, the public can freely make, use, sell, or import the invention, unless it's covered by another active patent.

A patent owner can notify the public of their patent rights by marking their products with the patent number. This is often done by including the word "patent" and the corresponding number on the product. However, failing to mark patented products doesn't necessarily prevent a patent owner from recovering damages for infringement. If a patent owner can prove that an infringer knew about the patent and continued to infringe after receiving notice, they may still recover damages.

Patent infringement occurs when someone unauthorized makes, uses, sells, or imports a patented invention within the United States. Patent owners can sue infringers in federal court to stop the infringement and seek damages.

To determine if infringement has happened, courts compare the patented invention (as described in the patent claims) to the accused product or process. Expert witnesses often help explain complex technical issues.

Patent infringement by means of importation may result in ITC Section 337 litigation and can result from a range including full imitation of products to just pieces of a claimed invention. For instance, taking the above pencil example, patent infringement by means of importation may be found where graphite and pieces of wood, so long as it is feasible that the imports are being used to make the infringing product.

While patents are presumed valid, accused infringers may challenge the patent's validity as a defense. These disputes are resolved by federal courts or at the Patent Trial and Appeal Board (PTAB). The validity of a patent can be brought up as a defense, but there also does not have to be a case at present for one to seek to invalidate a patent; invalidation arguments may be brought up without cause.

The USPTO doesn't determine if a patent infringes another. Importantly, obtaining a patent doesn't guarantee the right to use an invention if the product or method infringes on an existing patent. A patent grants rights to exclude others from using the product, but a patent that infringes on another patent does not automatically give the patent owner the right to infringe.