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Patent violation and the importance of proper notice

On Behalf of | Sep 28, 2021 | Patents

A patent is a powerful legal tool. This tool allows the patent holder to stop others who try to make, use, or sell their invention. But how does a patent holder actually use this tool? How do they stop someone else from violating their patent?

The “how,” as highlighted by a recent case, matters. Although the specifics will vary depending on the case, there are basically three steps a patent holder should take to move forward with a claim against another individual or business who may be in violation of their patent:

  • The patent. First, the patent holder must show that they have a patent. This step basically requires the patent holder inform the infringing party of the existence of the patent.
  • Infringement. Next, the patent holder should explain what action constitutes a violation of the patent. They should explain what the individual or business is doing that has led to the allegation of a violation.
  • Proposal.  Finally, the patent holder has to tell the alleged infringer to stop the actions that violate the patent.

A failure to properly follow these steps can have a negative impact on the patent holder’s case.

Are there any other ways to make sure businesses and individuals do not steal my patented invention?

There are instances where markings, basically writing the patent number clearly on the patented device, can serve as notice and reduce the risk that others will steal a patented invention. In these situations, if the markings meet the many rules set out by earlier cases, the marking itself may serve as notice.

Why does notice matter?

Whether sending notice or using markings to achieve this goal, the notice process is an important part of the court’s damage determination. A failure to follow the process, which can include more than noted above, can have a negative impact on the patent holder’s case. The exact date of the infringement may seem minor but can translate to huge changes in the final award.