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Patent Rights: How to Enforce Them

As more and more companies today are creating new and innovative products, especially in technology, enforcing patents has become an extremely important issue.

However, rather than being pursued through the criminal justice system and having a defendant arrested and then bailed out of jail by a bail bondsman, the vast majority of these cases are handled through civil litigation. Since patent rights cases are considered some of the most complex in today’s legal world, they involve an extensive gathering of facts and much preparation before trial. To gain a better understanding of how to enforce patent rights, here are some important details to remember.

Civil Courts

When a person believes their patent rights have been violated, the first step involves consulting an attorney who specializes in patent rights. Once the attorney determines a valid case exists, the next step will be to file a patent infringement case against the defendant. Since these cases are not considered criminal matters, they are filed in federal civil courts. It’s important to remember that although the U.S. Patent and Trademark Office is responsible for issuing patents, it does not deal in any type of legal enforcement actions.

Always Use a Patent Attorney

Since these cases are so complex and can take a long time to be completed, it’s vital to hire an attorney who is experienced and knowledgeable in this legal area. In far too many instances, people make the mistake of hiring the first attorney they can find, only to discover far too late in the process that they have little if any knowledge of patent law. In addition to this mistake, many people also think they can have a patent agent represent them in court, thinking the agent is an attorney. However, a patent agent is not the same as a patent attorney, and thus cannot represent anyone in court. The job of a patent agent is to solely help a person secure a patent for their idea or invention, not to provide legal advice.

Patent Infringement Basics
When it comes to filing a lawsuit to enforce patent rights, there are two primary ways a plaintiff can do so. The first is known as literal infringement, where a defendant has literally used the same product or idea that was created by the plaintiff. However, a second avenue of enforcing patent rights is called a doctrine of equivalents. When using this as the basis for a patent infringement case, a patent attorney will argue that the defendant’s idea or invention contains elements identical or equivalent to each aspect of the plaintiff’s patented product. While this may sound like an easy case to win, it doesn’t always work that way. If the defendant has a knowledgeable patent attorney on their side, they can always argue that the patent is invalid and should not have been issued at all. Because of this, it’s not uncommon for these cases to potentially take months or even years to resolve, which can prove very costly.

Patent Complexities
For many people who are issued a patent, they make the mistake of thinking that the patent is theirs forever. However, the term for most patents is only 20 years from the date which the patent application was filed, and requires maintenance fees be paid at regular intervals to maintain the patent. In most cases, patents filed after December 1980 must have maintenance fees paid after 3.5, 7.5, and 11.5 years from when the patent was issued to keep the patent valid. If this is not done, the patent will be allowed to expire, and thus anyone can make, use, or sell the product without seeking permission from the person who obtained the original patent.

Pursuing a Patent Infringement Case
If after consulting with a patent attorney a person decides to go ahead and pursue a patent infringement case, they must remember it may be a long, complex, and costly experience. However, because they have put years of money and effort into creating their product, it’s often seen as a viable option to seek damages against a defendant. By working with a patent attorney and being prepared for numerous twists and turns along the way, plaintiffs may come out on top.

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