There are many types of patent infringement claims. Each has its own unique nuances, but all boil down to the same basic fact: someone else is using your invention in violation of your patent. As businesses become increasingly global and new trade routes open, the potential for patent infringement will rise. Understanding the different types of infringing behaviors you may face can help you better protect your products and services in a changing world.

Direct infringement is the unauthorized use of an entity’s trademark, patent, or copyright. It is the most common form of infringement. Direct infringement requires an infringing party to manufacture or sell a patented invention. For example, the selling of “fake” goods such as shoes, clothing, handbags, etc. that are deliberately labeled as original and mimic the original in style, design, and construction. Direct infringement can also include unknowingly engaging in the behavior and does not require that the guilty party had knowledge that they were engaging in infringement. To pursue a direct infringement claim, entities need only establish that the individual or entity was making a patented invention, that they were utilizing a patented invention, offering the invention for sale, selling the invention, or importing the invention into the United States.

There is also induced infringement. This is a form of secondary liability and involves a third-party requesting an entity to knowingly and actively infringe on a patent holder’s rights. For example, a distributor commits induced infringement when they ask a manufacturing facility to produce counterfeit goods. Often, induced infringement is proved through the presentation of circumstantial evidence such as flyers and other advertising materials.

Contributory infringement is very similar to induced infringement. However, it does not require direct involvement in the infringing activity. Rather, it involves a party that knowingly engages in infringement, and stands to benefit from such an arrangement, but does not have control over inducing the activity or controlling it.

Another common form of infringement is vicarious liability. Vicarious liability infringement claims involve parties who are liable for copyright infringement that have direct control over the infringing activity. For instance, a website operator that allows for the uploading or downloading of copyrighted content.

Protecting Yourself Against Patent Infringement

The burden of proof falls upon the patent holder to establish the existence of patent infringement when pursuing infringement claims. This can be a significant and costly challenge. If you suspect infringment is occurring on one of your patents, often having an evidence-of-use search performed is a good place to start.  Conversely, to avoid being sued for infringing on someone else’s patent, the best thing to do when starting any significant new manufacturing or sales activity is to perform a freedom to operate search.  Also, make sure that trademark registrations, patent and copyright applications, etc. are properly submitted, routinely monitored, and renewed as necessary.

Contact Global Patent Solutions at (877) 274-2011 for more information about the various types of patent infringement claims.  It is our pleasure to help you navigate your options so that you can safely and effectively introduce your products and services to the market.