Patent infringement

Patent infringement is an unauthorized act of - for example - making, using, offering for sale, selling, or importing for these purposes a patented product. Where the subject-matter of the patent is a process, infringement involves the act of using, offering for sale, selling or importing for these purposes at least the product obtained by the patented process. In other words, patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction.
The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder.
Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling or importing the patented item, while people in other countries may be free to exploit the patented invention in their country. The scope of protection may vary from country to country, because the patent is examined – or in some countries not substantively examined – by the patent office in each country or region and may be subject to different patentability requirements.

Overview

Typically, a party that manufactures, imports, uses, sells, or offers for sale patented technology without permission/license from the patentee, during the term of the patent and within the country that issued the patent, is considered to infringe the patent.
To determine if a patent has been infringed, a specific test is used. The test varies from country to country, but in general it requires that the infringing party's product falls within one or more of the claims of the patent. The process employed involves "reading" a claim onto the technology of interest. If all of the claim's elements are found in the technology, the claim is said to "read on" the technology; if a single element from the claim is missing from the technology, the claim does not literally read on the technology and the technology generally does not infringe the patent with respect to that claim, except if the doctrine of equivalents is considered applicable.
In response to allegations of infringement, an accused infringing party typically asserts one or more of the following:

that it was not practicing the patented invention, i.e. the invention claimed in the patent ;
that it was not performing any infringing act in the territory covered by the patent ;
that the patent has expired ;
that the patent is invalid, because the invention in question does not meet the patentability requirements or includes a formal defect, this rendering the patent invalid or unenforceable;
that it has obtained a license under the patent.

The parties may also resolve their dispute in a settlement, which may involve a licensing agreement, such as a cross-licensing agreement. Private settlements may not always serve the public interest, "because litigating patent disputes to completion tends to generate positive externalities, by clarifying the limits of patent protection if the patent is upheld or encouraging wider use of the innovation if the patent is invalidated".

Indirect infringement

In certain jurisdictions, there is a particular case of patent infringement called "indirect infringement." Indirect infringement can occur, for instance, when a device is claimed in a patent and a third party supplies a product which can only be reasonably used to make the claimed device.

Clearance searches and opinions

A clearance search, also called freedom-to-operate search or infringement search, is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. A clearance search may also include expired art that acts as a 'safe harbor' permitting the product or process to be used based on patents in the public domain. These searches are often performed by one or more professional patent searchers who are under the direction of one or more patent attorneys.
Clearance searches may also be performed on a regular basis if an individual is concerned about patenting activity in a particular industry or with respect to a particular product.
A clearance search can be followed by a clearance opinion, i.e. a legal opinion provided by one or more patent attorneys as to whether a given product or process infringes the claims of one or more issued patents or pending patent applications. Clearance opinions may be done in combination with a "validity and enforceability" opinion. A validity and enforceability opinion is a legal opinion as to whether a given patent is valid and/or enforceable. In other words, a validity opinion is a legal opinion or letter in which a patent attorney or patent agent analyzes an issued patent and provides an opinion on how a court might rule on its validity or enforceability. Validity opinions are often sought before litigation related to a patent. The average cost of a validity opinion is over $15,000, with an infringement analysis adding $13,000.
The cost of these opinions for U.S. patents can run from tens to hundreds of thousands of dollars depending upon the particular patent, the number of defenses and prior art references, the length of the prosecution file history, and the complexity of the technology in question.
An exculpatory opinion is also possible.

Patent infringement insurance

Patent infringement insurance is an insurance policy provided by one or more insurance companies to protect either an inventor or a third party from the risks of inadvertently infringing a patent.
In June 2006, a Study for the European Commission on the feasibility of possible insurance schemes against patent litigation risks was published. The report concluded that the continuation of the status quo with very little, disproportionately expensive, bespoke patent litigation insurance would not meet any objectives for a feasible insurance scheme. Instead, only a mandatory scheme was considered to be viable in order to provide the economic and technical benefits to the EU and individual patentees which would arise from a widespread PLI scheme.

Legislation

Australia

In Australia, a patent infringement occurs when a person, who is not the patentee, exploits or authorises another person to exploit the patent in question.
'Exploit' in this context includes:

Make, hire, sell or otherwise dispose of a patented product; or
Offer to make, sell, hire or otherwise dispose of a patented product; or
Use or import a patented product; or
Keep it for the purposes of doing, or ; or
Use a patented method or process; or
Do any act mentioned from to above in respect of a product resulting from the use of a patented method or process.
Canada

In Canada, patents are governed by the Patent Act, and the rights of a patent holder are summarized at s. 42:
By granting the patent holder the exclusive right, privilege and liberty of making, constructing, using, and selling the invention, the Act establishes that any other person making, constructing, using, or selling the patented invention is infringing that patent. Whether there has been an infringement of a patent is usually a question of fact.
Canada is considered to be more friendly for rights holders in pursuing patent claims than in the United States, due to significant differences between the two jurisdictions:

China

has been criticized for alleged patent infringement, especially achieved through trade secret theft. The Chinese Communist Party Central Committee General Office’s most recent legal policy framework, declares a policy mandate for future patent law to ramp up punitive damages for patent infringement. Furthermore, it establishes framework principles for new regulations that place egregious infringers on a blacklist.

Europe

In Europe, national courts are competent for adjudicating patent infringement of national patents, national parts of European patents and Eurasian patents when the infringement takes place on their territory. Jurisdiction is determined for the countries in the European Economic Area by the Brussels regime, which means that for those countries also the court of the residence of the infringer is competent.
For the 17 countries participating in the Unified Patent Court, that court is competent for European patents in the same way as the national courts are, unless they are opted out. The UPC is furthermore competent for hearing cases regarding infringement of unitary patents, alongside the EEA courts of non-UPC countries if the defendant has his residence/place of business there.

India

The Indian Patents Act 1970 does not specifically define activities that constitute infringement of patents. However, the following acts are deemed to be infringements according to the Patent Act:

Japan

Infringement under the patent law in Japan is defined by Article 68 and Article 101 of Patent Act. Article 68 sets out the following types of infringement:

Where the invention is a product, by making, using, assigning, etc., importing, exporting or offering for assignment, etc. of the product as a business.
Where the invention is a process, by using as a business.
Where the invention is a process to obtain a product, by making, using, assigning, etc., importing, exporting or offering for assignment, etc. of the product as a business.

Article 101 shows the following acts shall be deemed to constitute infringement of a patent right or an exclusive license:

where a patent has been granted for an invention of a product, acts of producing, assigning, etc., importing or offering for assignment, etc. any product to be used exclusively for the producing of the said product as a business;
where a patent has been granted for an invention of a product, acts of producing, assigning, etc., importing or offering for assignment, etc. any product to be used for the producing of the said product and indispensable for the resolution of the problem by the said invention as a business, knowing that the said invention is a patented invention and the said product is used for the working of the invention;
where a patent has been granted for an invention of a process, acts of producing, assigning, etc., importing or offering for assignment, etc. any product to be used exclusively for the use of the said process as a business; and
where a patent has been granted for an invention of a process, acts of producing, assigning, etc., importing or offering for assignment, etc. any product to be used for the use of the said process and indispensable for the resolution of the problem by the said invention, knowing that the said invention is a patented invention and the said product is used for the working of the invention as a business.