What actions can I take against patent infringement?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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Send a Warning to the Violator

The first step when determining if there was actual patent infringement is to send the infringer a written warning. Sometimes this warning is sufficient to stop the infringement activity, and in rare cases you may discover that there was no patent infringement in the first place.

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Challenging Patent Infringement

The action necessary to challenge patent infringement depends on the country where the infringement has happened. In the United States, you can file a claim if anyone has made, used, sold, offered to sell, or imported unauthorized copies of your invention. Patent infringement claims in the United States must be filed in the states that the infringer does business. Whereas in the United Kingdom, infringement is defined as the making, disposing of, offering to dispose of, using, importing, or keeping a patented product and applies to the entire United Kingdom.

In all countries, infringement claims can only be filed for inventions where a patent has been issued. If your patent is still pending during the infringement, you may be able to obtain an injunction. An injunction will temporarily stop the infringer from creating and selling the invention until your patent clears, at which time you can file an official lawsuit for damages.

If the infringer is acting in a country where you do not own a patent, then you cannot sue. Current law mandates that each country is permitted to have their own patent forms and they are only responsible for protecting patented items in their own borders. Furthermore, there are many third-world countries with extensive black markets where patent protection does not exist at all.

File a Lawsuit

If the activity continues, you can go to the federal court and initiate a lawsuit to seek a restraining order and injunction to prevent further patent infringement. You can also ask the court to seize and impound the allegedly infringing items or articles while the patent action is pending.

If there was an infringement and any patented works were destroyed, an infringer would be liable for actual damages plus additional profits of the infringer or statutory damages. A violator may also be liable for statutory damages, which are assigned amounts per infringement incident and vary depending on whether the infringement was intentional or accidental.

Further, an infringer could be held liable for injury to business reputation or the dilution in the value of the patent. A patent holder can also be awarded costs and attorneys’ fees if they win their lawsuit.

You will need to hire an attorney familiar with patent law if you decide to file a lawsuit. 

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