A patent gives you the right to stop others from making, using, and selling your invention. Once you have a patent, the question then is whether someone is infringing on your patent rights. Can you stop someone from making your product? What if they make an invention like yours, but it is not identical? Are they infringing?
Patent Claims Define Your Patent’s Boundary
To identify potential infringement on your patent by someone else, you must understand the claims in your patent. The claims define how much or how little protection your patent has. It is like the fence of your house in that it defines the boundary of where your property line is and how much property you own. Only if someone steps inside your property line, defined by the claims of your patent, does that someone infringe on your patent.
Other Product Must Match Your Claims
For someone’s product to infringe your patent, that product must fall within your patent’s boundary. Your patent’s boundary is defined by the claims. So, for someone’s product to infringe, that product must be described by your patent claims. Read your claims line by line as you look at the other person’s product. As you read each line of your claims, check off whether that line describes the other person’s product. Only if every line of your claims describes the other product does that other product infringe on your patent. Let’s do a simple example. Say you have a patent with these claims:
1. A cup comprises:
a handle; and
the handle having a round shape.
Now let’s say a competitor makes this cup:
Are they infringing on your patent?
To determine this, we go through each claim, line by line, and see if it describes the competitor’s product.
|Claim||Describes Competitor’s Product?|
|The handle having a round shape||No|
For the competitor to possibly infringe, all your claims must describe the competitor’s product. Here, the competitor has made a cup, true. The competitor has made a cup with a handle, true. However, the competitor’s cup handle does not have a round shape. That line in our claim does not describe the competitor’s product. Therefore, the competitor likely does not infringe on our patent.
Remember, claims define the boundary of your patent, like the fence of your house. Because the competitor made a cup that is not described by your claim, they have essentially stepped outside of your fence, outside of the boundary of your claims. By stepping outside of the boundary of your claims, the competitor will argue they are not infringing.
Consult with a Patent Attorney
The above is a very simple example and does not factor in other considerations such as independent and dependent claims, and the doctrine of equivalents, which are outside the scope of this simple article. If you believe someone is infringing on your patent, you should consult with a patent attorney to perform a detailed infringement analysis which will also consider other patent law concepts that may affect whether there is infringement.