By Richard Gearhart
Founding Partner

What to Do if Someone is Infringing Your Patent

Understanding Patent Infringement

We’re living in a world where intellectual property matters more than ever, and patent infringement remains a major issue. The five biggest patent damage awards in 2022 alone totaled nearly $2 billion. Patent infringement continues to grow in 2023 with the competitive and fast-moving technological advancements happening all around us.

Infringement appears in many different forms, including direct infringement, indirect infringement, induced infringement, & contributory infringement. These categories cover a wide spectrum, from individuals who blatantly copy your patented work and create a derivative product without your permission, to businesses who supply parts or products that aid others in patent infringement.

If you’re searching for how to file a patent properly or think someone is infringing on your patent, don’t hesitate to reach out to Gearhart Law’s Team of Award-Winning Patent Attorneys here or give us a ring at (908) 273-0700. Weu2019re to help inventors, startups, and businesses of all sizes protect their valuable ideas.

Recognizing Types of Patent Infringement

There’s more than one way to infringe on a patent. Recognizing the type of infringement is key to deciding on the best course of action.

• Direct Infringement: This happens when someone uses, makes, or sells your patented invention without your say-so. Here’s something many donu2019t know: knowledge of the patent isn’t necessary for direct infringement to take place.

• Indirect Infringement: It happens when an individual hasn’t directly infringed on the patent, but has given a helping hand or influenced the infringement.

• Contributory Infringement: When someone provides a part of a product that helps in the infringement of a patent.

A Good Step to Take When Your Patent is Infringed Upon

If thereu2019s strong evidence that someone, or another business, has infringed on your patent, start by gathering evidence to demonstrate the infringement. Use your patent file as your go-to resource. This file will exhibit proof that your patented idea or product has been approved by the USPTO and is being used without your permission.

Should You Get a Patent Attorney?

Considering the intricate laws and guidelines of patent infringement that continue to evolve, a patent attorney might become your most valuable ally. They’ll assist you in understanding all potential parties in your specific case that people sometimes miss: from the infringer to the contributory infringer; and possibly even multiple infringers.

Analyzing the Patent

Before deciding if patent infringement has 100% occurred, it is important to fully grasp the patent’s scope. A patent is made up of a numbered list of claims by the patent.

After your attorney has reviewed your patent and sits down with you, they should lay out all possible options before jumping straight to a lawsuit. From a cease & desist letter to a possible settlement. Lawsuits of course may become the best or only option; but before investing the time and money, itu2019s always advisable to at least consider preliminary options.

Enforcing a Patent Infringement Judgment

If you’re past filing a lawsuit, and you receive a judgment in your favor, there are multiple possible outcomes and scenarios to consider:

1. Collecting Damages: If the court rewards damages, take steps to collect the awarded amount from the party responsible.

2. Enforcing an Injunction: If the court grants an injunction, ensure that the party responsible complies with the court order & stops their infringing activities.

3. Monitoring for Continued Infringement: Winning a lawsuit doesn’t mean you can forget about the market. You need to continue checking the market for

Patent Infringement Defenses & Counterclaims

As expected, the person or entity infringing on your patent will likely present various defenses & counterclaims to challenge the legitimacy of your patent or the alleged infringement.

• Invalidity: The infringer could argue that your patent doesn’t hold water due to a lack of novelty, obviousness, or non-enablement.

• Non-Infringement: The infringer might argue that their product or process doesn’t infringe on your patent because it doesn’t include all the parts of your patented invention.

• Laches & Estoppel: The infringer could argue that you’ve missed the boat to assert your patent rights because of unreasonable delay in taking legal action or making misleading representations that led them to believe they were in the clear.

• Prior Use: The infringer may claim that they were using the patented invention before you filed your patent, which could serve as a defense against infringement.

Finding the Best Patent Attorney In New Jersey, New York, & Other Major U.S. Cities for Your Case

Start with a consultation, & ask about similar cases the attorney has handled in the past. They’ll share past successes and experiences with you.

If you’re unsure about filing a patent or suspect someone is infringing on your patent, don’t wait to reach out to Gearhart Law’s Team of Patent Attorneys here or call us today at (908) 273-0700.

Patent Law FAQ

1. What constitutes patent infringement?

   Patent infringement is when a patented invention is used, sold, manufactured, or imported without the consent of the patent owner.

2. What should I do if someone’s infringing on my patent?

   Start by gathering evidence of the infringement, speak with a patent attorney, and build a patent infringement claim.

3. How can a patent attorney help in cases of patent infringement?

   A patent attorney will guide you through the ever-evolving, tricky landscape of patent laws, help build a strong infringement claim, & protect your rights.

4. What are the potential consequences of patent infringement?

   The fallout of patent infringement can be severe. If you’re found to have infringed on someone else’s patent, you’re responsible for damages. These damages include lost profits, attorney’s fees, & even criminal penalties.

5. How can I shield my patent from infringement today?

1. Brand your products with the patent number.

2. Keep an eye on the market for potential infringers.

3. Gather evidence of any obvious infringement

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About the Author

Richard Gearhart, Esq. is the founder of Gearhart Law and the host of a weekly radio show for entrepreneurs called “Passage to Profit”. He has built a firm with an international presence that helps entrepreneurs from around the world with their patent, trademark and copyright needs. Richard commands a breadth of experience that comes from nearly 30 years of practice in the writing and prosecution of hundreds of patents, and in all aspects of Intellectual Property law. In 2022, Richard was recognized by ROI New Jersey as a 2022 ROI Influencer in the Law List category for being one of the best of the best in New Jersey for intellectual property law. Gearhart Law emerged from Richard’s passion for entrepreneurship and startups and his belief that entrepreneurship grows the economy and creates jobs. When we started Gearhart Law, our goal was to help and support the new business ventures of 500 entrepreneurs and inventors. After 12 years, the firm has far surpassed this goal; today, we look forward to helping even more inventors and entrepreneurs get off to a great start and reach their own goals.