What if Someone Infringes Your Patent?
Someone’s infringing your patent. Hi, I’m Rich Beem. I’m a patent attorney in Chicago, and I would like to congratulate you because one of the most sincere compliments that anyone can pay to you as an inventor is to copy your product. Your product is so good that your competitor cannot stand to be without it. So they have decided to go ahead and to sell your product without your permission.
They’re infringing your patent and you should be glad to know that your invention is good enough that somebody wants to copy it. But what do you do about it? You normally will want to have a patent attorney take a look at your patent and take a look at the accused project-- product and determine whether there actually is infringement. Do the claims of the patent actually read on the product? The scope of the patent is defined by the claims, not by the title or by the subject of the patent and it takes a patent attorney to determine whether there is infringement. That’s called an “infringement opinion” and there’s also the flipside of it. If someone is accused of infringement, they might want to get an opinion that they hope will be an opinion of non-infringement. So, if the patent attorney determines that there is infringement, there are a couple of ways to proceed. One is to send a Cease and Desist letter. That normally is written by the patent attorney and it’s written to the infringer. And it says, “Dear company,” “Dear person, we’re aware that you’re selling this product and we want to bring to your attention the fact that your product is infringing our client’s patent,” and we put the patent number and we might even specify which particular claims we believe to be infringed. And we will ask that company or that person to stop the infringement immediately, as well as to report to us the amount of sales that they have had so that we can determine what an appropriate payment would be in the way of damages for the patent infringement. And it’s often possible to work out these kinds of cases short of litigation, but one risk of sending a Cease and Desist letter is that it also gives the accused infringer grounds to file their own lawsuit, which is called a lawsuit for Declaratory Judgment in which they would seek declaratory judgment of non-infringement. So, one of the routes that I have mentioned is the Cease and Desist letter which has the benefit of possibly resolving the case short of litigation, but it also has the risk that you might actually provoke litigation. The second way to take action for patent infringement is to file a lawsuit. Again, this requires the patent attorney looking at the claims and looking at the accused product and determining that there is an infringement. That’s a requirement before filing a patent infringement lawsuit. Then we can proceed and file the patent infringement lawsuit for you. If you’re an individual, you are permitted to file a lawsuit pro se. That means in your own behalf in federal court, which is where all patent infringement lawsuits are filed. If you have a company that owns the patent, then it’s required to have a lawyer represent you in court to represent your company, because a company cannot legally defend itself in court.
So, why do I tell you about this? It’s because if your patent is being infringed, you may need to take some action to stop the infringement from getting worse, to stop the competitor from stealing your market. You want to put a stop to the infringement. You wanna collect damages. You want to be able to exclude that infringer. I’m Rich Beem. Call me if someone is infringing your patent. I’m at 312-201-0011. Thank you for watching.
