Patent Infringement in the USA: A Comprehensive Guide

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When a person or company makes use of a patented concept, procedure, or device in part without authorization, it is engaging in one of the many types of patent infringement. Other names for patent infringement include patent violation and theft of ideas. It can involve making use of, selling, or offering for sale the patented creation or concept.  

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US Legislation and Administrative Bodies 

The common law system in the US is based on judicial precedent. As a result, federal court rulings play a crucial role in US patent law and litigation through interpreting the Constitution and federal statutes, and occasionally passing new legislation. For example, the “doctrine of equivalents” has no independent statutory foundation and was originally adopted by the US Supreme Court. Patent infringement matters fall under the exclusive jurisdiction of federal courts, and both the Federal Rules of Civil Procedure and the Federal Rules of Evidence are applicable. Furthermore, many district courts have established regional regulations unique to patent litigation.  

The administrative organization tasked with investigating and awarding patents is the US Patent Office (USPTO). It also presides over inter partes post-grant procedures where a party can contest another party’s patent through its Patent Trial and Appeal Board (PTAB).  

The task of enforcing patents at the border falls under the purview of the US International Trade Commission (USITC).  

These administrative bodies are each governed by a set of federal laws as well as their own set of guidelines, all of which must be per the Constitution and applicable federal patent laws. 

Which judicial and governmental entities enforce patents? 

Patent infringement lawsuits must be filed in a federal district court with personal jurisdiction over the defendant since federal courts alone have exclusive authority over such cases.  

Additionally, the patent holder has the option to submit a complaint with the US International Trade Commission if counterfeit goods are imported into the country and they can demonstrate the existence of a domestic market there for the items covered by the patent (USITC). To decide whether to launch an investigation, the USITC has 30 days. Although USITC hearings go more quickly than court proceedings, injunctive relief is the only available remedy. The patentee must bring a relevant lawsuit in the federal district courts if monetary damages are required.  

The Court of Appeals for the Federal Circuit hears appeals in patent cases (CAFC). Discretionary appeals from the CAFC are heard by the US Supreme Court. Although some district courts have a greater level of knowledge than others because patent matters are more common in those areas, the US does not have district courts that are specifically trained to handle patent problems. From judge to judge, the amount of expertise in patent cases varies greatly. 

Who is qualified to represent parties in court or before a government body? 

Any qualified lawyer admitted to practicing before the court where the claim is brought may represent a party in a patent lawsuit in federal courts and before the International Trade Commission. If necessary, a lawyer can ask for pro hac vice admission and retain another lawyer who is admitted in the concerned jurisdiction. Lead counsel for Patent Trial and Appeal Board trial proceedings must be a US Patent Office-registered practitioner. On a suitable motion, additional counsel may be admitted pro hac vice on the grounds that he or she is an accomplished litigator and is well-versed in the issues raised by the action. 

How is patent infringement assessed? 

When determining whether a product or process violates a patent, the asserted patent claims are compared to the allegedly violating product or method. When a product or procedure is accused of infringing and each component of the claim is present, infringement has occurred. Literal infringement is established if each component is located literally.  

The doctrine of equivalents allows for infringement even in cases when a claim ingredient is actually missing but there are only slight differences between it and the comparable element of the accused product or process. 

What defenses are available to an alleged infringer? 

The accused infringer may assert non-infringement, invalidity, and/or unenforceability defenses in a patent lawsuit. It may also make use of defenses pertaining to antitrust. Alleged infringers may also cite past commercial use as a defense for patents issued on or after September 16, 2011, the day the America Invents Act was passed.

What is the format of patent infringement proceedings? 

During a patent infringement trial, parties present evidence to the court or jury through live testimony and documentary evidence. They typically submit written arguments before and after the trial, with jury instructions included in pre-trial submissions for jury trials. Opening and closing arguments frame the presentation of evidence, and both factual and expert witnesses may be called to testify in person, and each party may submit documents or tangible objects into evidence, usually through the testimony of the witnesses.   

Even though it is not necessary, the majority of patent infringement cases also include “Markman hearings” (hearings when the judge considers testimony from all parties on the proper meanings of pertinent key phrases used in a patent claim) to settle claim construction disputes. Markman hearings often take place during discovery and well before trial, however, they can happen at different times in different cases.  

The parties may decide to use a jury in lawsuits involving monetary damages. In general, jurors decide matters of fact, whereas judges decide matters of law. Sufficiency of textual description, novelty, obviousness, infringement, and damages are among the matters typically evaluated by the jury. The court will rule on matters like claim formulation and unfair behavior. 

Can patent claims be amended during proceedings? 

A party can amend claims in the patent office during:  

  1. Ex parte proceedings at the US Patent Office (USPTO), such as reissue or re-examination. 
  2. Post-grant proceedings.  

When a patent is found to be entirely or partially inoperative or invalid due to an error made without deceptive intent, such as too broad or limited claims, the patentee may submit a reissue application. Requests for a reissue that intends to broaden the claims’ scope must be submitted within two years after the patent’s issuance.  

Re-examination requests can be submitted by the patent holder or by any member of the public, but they can only be used to examine significant new doubts about the patentability of prior art patents or printed publications. Courts can order a stay of litigation until the outcome of reissue and re-examination proceedings, which can go on concurrently with litigation on the same patent.  

The patentee may modify the patent claims both through inter partes and ex parte USPTO post-grant actions, which include ex parte supplemental examination proceedings, covered business method reviews, and inter partes reviews.

What are the penalties for patent infringement?   

When someone is found guilty of violating a patent, the punishments frequently involve financial compensation for the patent owners. Compensation damages rank as the most significant of them. These protect the patent owner’s lost revenue as a result of the infringement. These damages are calculated after the patent’s worth has been established. The amount of money the infringer actually made may also be included in the damages. The patent owner is entitled to greater damages if a defendant is found guilty of wilful infringement. They may be up to three times as much as typical compensatory damages. 

How to Prevent Patent Infringement? 

  1. Start early: Don’t wait to look for pertinent patents until you’ve already developed a product. You might wish to think about outsourcing this phase to professionals who are skilled at locating pertinent patents for particular designs or ideas.  
  • Use the United States Patent and Trademark Office to do an online patent search.  
  • Always be vigilant when checking the competition to see if any parts are identical or patented.  
  • Look for patent numbers on the product itself or the packaging of rival brands to determine which components are covered by the patent.  
  • Conduct a patent number search to examine all patent numbers.  
  • As a final resort, get in touch with the rival or ask someone else to. 
  • 2. Perform an initial screening: It’s time to send all the pertinent patents pertaining to your product to an attorney for review once you have located them all. Make sure you conduct an initial check to identify any patents that have expired because this process might be expensive. Find out whether any of the patents aren’t genuinely applicable to your goods or if the patent owner has paid all maintenance costs. You should be aware that attorney-client privilege may not always apply to internal communications about patents before sending any documents to your attorney. When communicating during this process, use caution.

What is Patent Infringement Insurance?  

A type of intellectual property insurance is patent insurance. The purpose of patent insurance is to safeguard you as the patent holder in the event that your patent is violated, and you suffer a financial loss. For manufacturers, patent infringement insurance is more of a liability coverage.  

The legal fees related to an accusation of patent infringement against a corporation are covered by the patent insurance policy.  

If you don’t intend to steal anyone else’s ideas, this kind of regulation might seem needless, yet it happens more frequently than you might imagine. Even though you may not have meant any harm, a patent holder nevertheless has the ability to sue you for damages.  

There are two varieties of insurance against patent infringement:  

  • A defensive policy will assist you if you’re sued for infringing upon a patent.  
  • Patent litigation insurance may also offer financial protection for legal fees in the case of a patent infringement lawsuit. 


Protecting intellectual property is important in maintaining its value. Understanding the breadth and significance of a patent’s claims might be important because they define the legal protection that an innovation will get. A strong defense will safeguard property rights and corporate activities if a patent is infringed upon.

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