Unfair Denial

A patent provides the owner the right to prohibit others from making or selling the patented invention for a specific period of time, normally 20 years from the date the patent was filed. Like other rights, patents can be sold, licensed, mortgaged, transferred, given away or abandoned. A patent gives the owner the right to exclude others from infringing on the patent.

What is a Patent Infringement?

A patent infringement is the unauthorized creation, use, attempt to sell or sale of a patented invention within the U.S. or its territories. It is also an infringement to import a patented invention into the United States.

Infringement can take three forms:

• Direct that is the use, creation or sale of a patented invention
• Indirect that is the encouragement of another to make, use or sell the invention
• Contributory that is knowingly selling or furnishing something whose only use is with a patented invention.

Infringements are categorized as literal infringement absent or literal infringement.

Literal infringement is when all the elements of a patent are identical to the infringing item or process. Absent literal infringement is when a product or process appears to perform the same function as the patented invention.

When an infringement occurs, the validity of the patent and the infringement are reviewed. In the United States and Canada, there is a six-year limitation period for litigation. The period begins when the patent holder becomes aware of the infringement.

Patent Infringement by the U.S. Government

In the event that the government infringes on a patent, the act falls under a separate statute, which states that the governmental use of the invention is seen as a higher domain taking license under the patent. However, the government may be held responsible for reasonable or complete compensation to the patent owner for its unofficial use of the patented invention.

Patent Enforcement Corporations

Thereare agencies, which help individual inventors, and small businesses defend their patents. Two such corporations are Pearl Patent and Royalties LTD (www.pearlltd.com) and General Patent Corporation International (www.patentclaim.com). Often, these types of companies will do a preliminary due diligence and finance and manage the enforcement of the patent. Many of these firms also pay all out-of-pocket expenses.