Infringement of Patents
Infringement of a patent consists in the unauthorized making, using, or selling of the patented invention within the territory of the United States during the term of the patent. If someone uses your patent without your permission, it is your right to seek relief in the appropriate federal court.
When I see an apparent infringement of a patent of ours, as has occurred occasionally over the years, the first thing I do is call the company and set up a meeting. I am not litigious. Things can often be worked out between parties. Thus far, I have always been able to do this. Court battles over patents can be long and expensive affairs. Where elephants fight, grass doesn’t grow. And if you want to continue working in your particular field, it is wise to avoid making too many corporate enemies.
Several years ago, I saw an infringement of a patent we hold. One call to the company’s president and a quick fax of our patent brought immediate relief in the form of a royalty on all items made to date and in the future. Not only that, but I was invited to submit ideas for licensing consideration.
If your friendly approach is turned away, and you are sure of your position, the next step is to get a lawyer and decide whether a temporary restraining order (TRO) is appropriate. A TRO is an injunction to prevent the continuation of the infringement. You may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also claim that what is being done does not constitute infringement.
Infringement is determined primarily by the language of the claims of the patent, and if what the defendant is making does not fall within the language of any of the claims of the patent, there is no infringement.
The USPTO has no jurisdiction over questions relating to patent infringement. In examining applications for patent, no determination is made as to whether the patent-seeking invention infringes any prior patent.
Bright Ideas
In 1926, Alabama-born Waldo Semon, a research chemist at B.F. Goodrich, in Akron, Ohio, put his assigned work aside and tried dissolving polyvinyl chloride (PVC) to create an adhesive for bonding rubber to metal. “People thought of PVC as worthless back then,” Semon said. “They’d throw it in the trash.” He never created the adhesive, but while heating PVC in a solvent at a high boiling point, he discovered a substance that was both flexible and elastic. No one knew what to make of it. Today, however, PVC has become the second-best-selling plastic in the world, generating billions of dollars in sales each year.
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