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Patent Infringement – Unwarranted Patent Usage
Patent infringement technically means that a party, other than the patentee or licensee, manufactures, imports, uses, sells, or offers for sale a patented technology without permission from the patentee, during the term and within the territory where the patent is granted.
Infringement includes the manufacturing of protected technologies in a “non-granted area” and the subsequent offering of these products in a “granted area”.
The definition of patent infringement varies from country to country and since patents are territorial, infringement often needs to be determined on a country by country basis. This means that parties outside of the “granted geographical area” are fully allowed to use the patented technology in their country. However, infringement also includes e.g. manufacturing of protected technologies in a “non-granted area” and the subsequent offering of these products in a “granted area”.
Testing a Patent for Infringement
To test if a technology is infringing a patent, you need to map a claim onto the technology
As the definition, also the patent infringement test varies from country to country. Generally, to be considered an infringement, the infringing party’s product (or service, method etc.) needs to fall into one or more of the claims of the patent. These claims are defined as elements defining the patent, or in technical terms; the extent of the protection sought for by a patent.
To test if a technology is infringing a patent, you need to map a claim onto the technology. This means that you compare the claim with the patent, and look for identical parts or descriptions. These maps are usually referred to as "claim charts" or "Evidence of Use".
If all of the claim’s elements are found in the technology, the claim is said to read on the technology, and there is infringement. If, on the other hand, one single element of the claim is missing from the technology, the claim does not literally read on the technology, and, with respect to that specific claim, there is no infringement.
Often supposed prior art findings are used as a "smoke grenade" by the alleged infringer to provoke second thoughts in the patent owner's camp.
In case of patent infringement allegations the party accused of infringement generally asserts one or more responses. Some examples are that it was not using the patented invention at all, or not in the territory covered by the patent, the patent has expired, or that it has obtained a license for the patent.
In many cases so-called "prior art" is cited with the implicit threat that the patent can be invalidated easily in court. In each case, the relevance of this supposed prior art must be analysed carefully as it is often used as a "smoke grenade" by the alleged infringer to provoke second thoughts in the patent owner's camp.
Munich Innovation Group – A Trusted Partner in Infringement Cases
Munich Innovation Group offers technical and commercial support and consulting to inventors or companies facing infringement cases. Experienced patent attorneys analyse the patent and possible infringements, file a Patent Litigation suit and support the patent owners through the infringement process.
This may include the analysis of competing products, services, etc. and the conducting of commercial negotiations about license or purchase agreements as well as financially supporting inventors or companies during a legal process.
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