Avoiding Patent Infringement. Let us begin by discussing how a utility patent is infringed.
Infringement may be direct or indirect. Direct Infringement: A patent is directly infringed if a product or process incorporates all of the elements of an independent claim of the patent. The independent claim in a patent may have the following format. 1. An apparatus comprising: Element A; Element B; and Element C. Products that incorporate Elements A, B and C literally infringe Claim 1. However, even though a claim of the patent is not literally infringed, infringement can still be found under the Doctrine of Equivalents (a.k.a. To determine whether the element can be broadened under the doctrine of equivalents, the communications between the patentee and Patent Office must be reviewed to determine whether there are any statements or claim amendments that would prevent or limit the application of the Doctrine of Equivalents.
I invite you to contact me with your patent questions at (949) 433-0900 or James@OCPatentLawyer.com. Patent Law Practice Center - PLI – What Patent Reform Means for Retailers: 4 Key Provisions of the America Invent Act. PatentClaimsAgainst Retailers_Sept2010. Patent troll. A patent troll, also called a patent assertion entity (PAE), is a person or company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking.
Related, less pejorative terms include patent holding company (PHC) and non-practicing entity (NPE). Generally not considered patent trolls are NPEs such as university research laboratories, development firms that offer their patented technologies to licensees in advance, and licensing agents that offer enforcement and negotiation services on behalf of patent owners.[1] Etymology and definition[edit] The term "patent troll" was coined by Peter Detkin,[2][3] counsel for Intel, in the late 1990s.
The term "patent troll" was used at least once in 1993 with a slightly different meaning, to describe countries that file aggressive patent lawsuits.[4] Legal and regulatory history[edit] Website/Software Risks. There has recently been an increase in the number of patent claims against website developers and operators.
The claims are based on “business method” and software patents for various functions of a website, such as drop-down menus, site search, and other common functions. Many of these functions are in common use by many developers, who do not know that the software or method they are using is covered by a patent. Many of these patents are old, and developers have furthered website development using their functions to create new technologies, which are still covered by the patent. In addition, searching patent registrations to determine if your website is infringing on an issued patent is difficult, time consuming, and expensive. “Patent trolls” are patent owners that take advantage of the difficulties of finding a patent, and lie in wait for someone to use their technology without realizing it is covered by the patent owners rights under their patent. Avoiding Open Source.
Avoiding litigation: IP risk assessment. For the purpose of this article, intellectual property (IP) is defined as original creative work manifested in a tangible form that can be legally protected.
IP includes patents, trademarks, copyright and confidential information. All companies create IP, whether they are aware of it or not. This is not to say that all companies retain or even protect their IP. When starting a new business, make certain to examine what types of IP your company will use, rely on and even create. This will enable you to assess your risk of intentional and unintentional infringement and gauge the likelihood of detection and resulting litigation.
Due to stretched finances, intentional infringement commonly occurs at the start-up stage. Unintentional infringement often transpires because of the complexities of certain industries and the speed at which applications for new patents and trademarks take place. Demand letter vs. litigation. Google 翻译.