3 Steps for Detecting Patent Infringement

August 19, 2022
- Infringement Search
- Intellectual Property (IP)

Patent Infringement

A patent provides protection for an invention to the applicant/inventor/owner of the patent. The protection is granted for a limited period, generally 20 years (in case of utility patents).

During the duration of the patent’s protection, the applicant/inventor/owner of the patent has the authority to decide who may or may not utilize the innovation. Other parties may be granted a license by the patent holder to exploit the innovation under mutually agreeable terms. The applicant/inventor/owner can also transfer the patent to the new owner by selling the right to the invention to a third party. When a period expires, the innovation’s protection ends and it enters the public domain, meaning that the owner no longer has the sole right to commercially exploit the invention.

A violation of rights of applicant/inventor/owner or the freedom to which applicant/inventor/owner is entitled is referred to as an infringement.

A forbidden act using a patented invention that is carried out without the patent owner’s consent is referred to as patent infringement. Usually, permission is given in the form of a license. In many jurisdictions, a user must be commercial (or have a business objective) to violate a patent.

The claims of the issued patent specify the boundaries of the patented invention or the range of protection. In other terms, the language of the claims outlines what is prohibited without the patent owner’s consent from the general public. Patents are nation-specific, and infringement is only legal in nations where they are currently active. For instance, if a patent application is made in the US, no one in the US is allowed to manufacture, use, sell, or acquire the patented product, although individuals in other countries may be permitted to do so.

The extent of protection may vary from nation to nation due to the different patentability standards applied by each country’s or region’s patent office, making it challenging to enforce an issued patent internationally.

Types of Patent Infringement

Patent infringement can take many different forms. There are two types of patent infringement namely, direct infringement and indirect infringement. Further, direct infringement is categorized into literal infringement and equivalence infringement. Besides, Indirect infringement is categorized into induced infringement and contributory infringement. The description of mentioned terms is discussed below in detail.

Direct Infringement

It directly states that a third party has wilfully or intentionally stolen the technology from the applicant/inventor/owner without his prior permission. It occurs when somebody directly makes, uses, or sells the patented invention within the country.

Literal Infringement

Literal infringement happens when a product or method exactly satisfies all the requirements of a patent claim. It cannot be deemed a literal infringement if even one element is altered. Determination of literal infringement is done by comparing elements of a claim to those of a product or process one-on-one. For example, if a patent has five claim elements and the product which is infringing the claim is having features/specification covering all the claim elements, then the product is literally infringement the patented invention.

Equivalence Infringement

If the elements of the product or process differing from those of claim elements are present by equivalence, then under the law of doctrine of equivalents, there may still be infringement even if a patent has not been violated directly. When the respective components of the alleged product or method do not differ significantly from the corresponding restriction in the patent claim, equivalent infringement may have taken place.

Indirect Infringement

When someone supports directly infringing action, there is indirect infringement. Inducement or contributory infringement are two examples of indirect infringement.

Induced Infringement

Whenever an entity with an understanding of the patent incites or convinces another entity to engage in actions of infringement, this is known as induced infringement.

Contributory Infringement

Contributory infringement occurs when someone provides parts of an invention with the knowledge that the parts will be utilized to violate a patent. The component must not have any significant non-infringing applications for contributory infringement to arise. For instance, selling a product that could only be useful when paired with a patented product can be regarded as contributing to infringement.

Three Steps for Detecting Patent Infringement

The fundamental disadvantage of the patent system is that it only provides a patent applicant/inventor/owner with the ability to exclude, with no mechanism to assist them in detecting patent infringement. It is the responsibility of the patent applicant/inventor/owner to identify products that may infringe on the claims of their patents.

Further, a patent applicant/inventor/owner now has two options:

Market Survey: Stay informed about every product that is released to the market to identify any patent violations.
Consultation: Engage the services of a patent consulting or law company to assist you in identifying the products that utilize your invention.

To determine whether the patent is infringed, the essential method requires the following steps:

Key Feature Extraction (of product)
Patent Features Mapping (of set of patents)
Patent Product Mapping (for best patent)

Key Feature Extraction
Mapping Patent Features
Patent Product Mapping

Building a taxonomy, which is a hierarchical representation of numerous features associated with a technical field, is the first step. The taxonomy is developed based on the kind, size, function, and activation techniques of the devices/products.
Further, the scientific classification will include factors like internal architecture, energy usage, process inputs, automatic/manual batteries, any hardware- or software-based innovations, and others.

A patent feature mapping is carried out in the second step of the infringement detection. Finding every patent in the field (set of relevant/potential patents) and determining which patents correspond to which features are the goals of this stage.

This stage involves finding of all relevant patents to the technological field and deciding which patent aspects correspond to the applicant/inventor/owner invention. In this way, all patents are analysed and compared according to the product/device features.

The final and most challenging stage is to link/map patents to products. This phase involves locating product in the market, reading its handbook, and determining how it functions. To determine what functions and what does not, every component of a product is analysed or tested.
Frequently, a product is discovered that appears to be a potential infringement but is constructed significantly differently. Following that, a thorough study of all products on the market is performed, and the products are matched to that specific patent.
Patent-product mapping also has the benefit of being particularly useful in determining a patent’s worth. As a result, the more products that use a patent, the more valuable it is. This is because many patents are valued according to the products that are made using them. As a result, determining infringement and determining a portfolio’s value are the two functions of this feature.

Considering either company-based patent monitoring or technology-based patent monitoring, the above step will generate a set of patents that are further screened based on the taxonomy nodes, which is prepared based on key concepts of technology, and further categorized to generate the report along with bibliographic information. The important part is to periodically (weekly monthly, quarterly, or yearly) perform the above search to see any new updates regarding the patents or patent applications already on the list i.e., change in legal status, examination status, litigation status, etc., or any new publication in the domain or by the company of interest and highlighting the same in the report.

The periodic process can be manually conducted however as day-by-day patent filings are increasing, therefore manual checking of the competitor’s IP will not be beneficial, and a patent service is surely required which has an automatic alerting system whenever something new is initiated in the technology domain or on arrival of a new update from a specific company for which initially search was conducted.

Below are the insights obtained by a company by using patent monitoring for tracking competitors and their patent filings:

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