Patents are powerful tools that give inventors exclusive rights to their creations — but that protection only holds if you understand how to enforce it. Patent infringement is a serious issue that can undermine years of innovation and investment. To properly protect your intellectual property, you need to understand the two primary forms of infringement: direct and indirect.
This guide will walk you through what each type means, how they differ, and what you can do to protect your inventions from unauthorized use.
What Is Patent Infringement?
Patent infringement occurs when a person or company uses, sells, makes, or imports a patented invention without the patent owner’s permission. This unauthorized use violates the exclusive rights granted by the patent.
Patent law in the U.S. protects inventors by allowing them to take legal action against infringement. However, the outcome of these actions depends largely on the type of infringement involved.
Direct Patent Infringement: When Copying Is Clear-Cut
Direct infringement happens when someone performs all elements of a patented claim without authorization. It’s the most obvious form of infringement and the one most commonly encountered in legal disputes.
Here’s how it works:
- The accused product or process must match every element described in at least one of the patent’s claims.
- The person or business does not need to be aware of the patent or intend to infringe for liability to apply.
- It’s considered a “strict liability” offense, meaning that even accidental infringement is enough to bring legal consequences.
Example: A competitor sees a new gadget on the market, reverse-engineers it, and begins producing and selling a nearly identical version. If the original gadget is patented, this would be a textbook case of direct infringement.
Key Takeaway: Even if infringement is unintentional, you can be held liable under direct infringement laws.
The Role of Patent Claims in Direct Infringement
Patent claims are the foundation of enforcement. These legal statements define what is protected. When bringing a direct infringement case, the burden is on the patent holder to show that each element of the claim is present in the alleged infringing product or method.
That’s why crafting clear and specific claims during the patent application process is essential. Vague or overly broad claims can complicate enforcement.
Indirect Patent Infringement: When Others Enable or Encourage Infringement
Indirect infringement is more nuanced than direct infringement. It doesn’t involve copying the invention outright. Instead, it refers to contributing to or inducing someone else to infringe.
There are two key types:
1. Contributory Infringement
This occurs when a party sells or supplies a component that is:
- Especially made for use in a patented invention
- Not a common item with significant non-infringing uses
- Provided knowingly to facilitate infringement
Example: A manufacturer supplies a key part that can only be used to create a patented medical device and knows it will be used for that purpose.
2. Induced Infringement
This involves encouraging or directing someone else to infringe a patent — through marketing, instructions, or strategic guidance.
Example: A business tells customers how to use a product in a way that violates a known patent, even if they aren’t selling the infringing product themselves.
What sets indirect infringement apart is intent. The accused must have knowledge of the patent and a deliberate role in causing the infringement.
Defending Against Infringement Accusations
If you or your company are accused of infringement, there are several defenses you might use:
- Non-infringement: Demonstrating that the accused product does not actually infringe on any claims of the patent.
- Patent Invalidity: Challenging the enforceability of the patent due to errors in the application, prior art, or obviousness.
- License or Exhaustion: Showing that you had legal rights to use the patent or that the rights were exhausted after the first authorized sale.
Having an experienced patent attorney review your situation can make a major difference in the outcome of a dispute.
The Business Impact of Patent Infringement
Patent disputes can be costly, both financially and reputationally. A lawsuit could lead to damages, injunctions, and long-term harm to your brand. Worse, litigation diverts focus away from product development and growth.
That’s why prevention is always better than cure.
How to Proactively Protect Your Patent Right
Protecting your intellectual property begins well before a dispute arises. Here are some strategic steps:
- Conduct Clearance Searches: Before launching any product, check for existing patents that may cover similar inventions.
- Monitor the Market: Keep an eye on competitors who might be using your patented technology.
- Educate Your Team: Make sure your engineers, marketers, and business partners understand your IP boundaries.
- Consult a Patent Attorney: Whether you’re applying for a patent or defending one, legal guidance is invaluable.
Final Thoughts: Don’t Go It Alone
Patent law can be intricate, especially when dealing with different types of infringement. What seems like a gray area to a business owner may be black and white to the courts.
Whether you’re concerned someone is infringing on your rights or you’re at risk of violating someone else’s, it’s essential to get expert legal advice. The team at Schell IP is here to help. We specialize in helping inventors and businesses secure and protect their innovations.
Book your free consultation today, and let’s build a solid strategy to protect your ideas and your business.