Definition of patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention. In many countries, a use is required to be commercial (or to have a commercial purpose) to constitute patent infringement.
The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder.
Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is filed in the United States, then anyone in the United States is prohibited from making, using, selling or importing the patented item, while people in other countries may be free to make the patented item in their country. The scope of protection may vary from country to country, because the patent is examined by the patent office in each country or region and may have some difference of patentability, so that a granted patent is difficult to enforce worldwide.
Elements of patent infringement
Typically, a party which manufactures, imports, uses, sells, or offers for sale patented technology, during the term of the patent and within the country that issued the patent, is considered to infringe the patent.
The test varies from country to country, but in general it requires that the infringing party's product (or method, service, and so on) falls within one or more of the claims of the patent. The process employed involves "reading" a claim onto the technology of interest. If all of the claim's elements are found in the technology, the claim is said to "read on" the technology; if a single element from the claim is missing from the technology, the claim does not literally read on the technology and the technology does not infringe the patent with respect to that claim.
In response to allegations of infringement, an accused infringing party will generally assert one or more of the following:
- it was not practicing the patented invention;
- it was not performing any infringing act in the territory covered by the patent;
- the patent has expired;
- the patent (or the particular claim(s) alleged to be infringed) is invalid, because the invention in question does not meet patentability or includes a formal defect, rendering the patent invalid or unenforceable;
- it has obtained a license under the patent;
- the patent holder is infringing patent rights belonging to the accused infringing party, and the party may resolve the dispute in settlement or cross-licensing.
In certain jurisdictions, there is a particular case of patent infringement called "indirect infringement." Indirect infringement can occur, for instance, when a device is claimed in a patent and a third party supplies a product which can only be reasonably used to make the claimed device.
Infringement under United Kingdom patent law is defined by Section 60 of the UK Patents Act 1977 (as amended), which sets out the following types of infringement:
- Where the invention is a product, by the making, disposing of, offering to dispose of, using, importing or keeping a patented product.
- Where the invention is a process, by the use, or offer for use where it is known that the use of the process would be an infringement. Also, by the disposal of, offer to dispose of, use or import of a product obtained directly by means of that process, or the keeping of any such product whether for disposal or otherwise.
- By the supply, or offer to supply, in the United Kingdom, a person not entitled to work the invention, with any of the means, relating to an essential element of the invention, for putting the invention into effect, when it is known (or it is reasonable to expect such knowledge) that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
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