This is the question all technology companies need to ask themselves at a very early stage of product development. Reason being, if your product ends up being successful, there will be companies holding patents who can stop you from selling your product if they find that your product is infringing their patents. In addition, there will be patent holders who can drain your profits through patent litigation, if your product is infringing there patents. The question of patent infringement becomes even more relevant if you are introducing products in regions, such as US and Europe, where companies and individuals alike have the reputation of aggressively protecting their patent rights.
To understand whether you product/process infringes on others patent rights; we first need to understand what patent infringement means.
Patent infringement
A patent is said to be infringed when a product/process violates the rights granted to a patentee. A patentee (also referred to as an assignee of a patent) is given the rights to exclude others from making, using, importing, selling or offering for sale the patented invention for up to 20 years. This scope of protection granted to a patentee gives him the right to take legal action against the infringing parties.
If found that a patentee’s rights have been violated, the courts direct the infringing parties to pay damages to the patentee. The damages awarded can be quite substantial.
How do we determine if a product/process infringes upon a patent?
To determine infringement of a patent by a product/process, one has to go through a section of a patent document called the claims. The claims section of a patent document describes in detail, the scope of protection granted to a patent.
The claims section has to be analyzed in detail to find out if a product/process infringes upon the claims. Depending on the nature of the claim, it would include a number of elements or process steps. Subsequently, the scope of each of the elements/process steps has to be determined. Thereafter, your product/process has to be compared with the elements/process steps of the claim. The above comparison helps you determine whether the claimed elements/steps exist in your product/process.
A claim is said to be infringed if all the elements of the claim exists in your product. Similarly, a claim that includes process steps is said to be infringed, if all the process steps are present in the process that you intend to follow or following.
In other words, if all the elements in the claim of the patent, map on to the features of your product, your product is infringing upon the patent rights of the patentee.
It should be noted that, if your product does not have at least one element of the claim, then your product does not infringe upon the patent rights of the patentee. This analysis of infringement is carried out by well established doctrines developed over many years. This analysis is generally referred to as infringement analysis study/product mapping/claim mapping.
To provide a better understanding on how this works, let me explain with an example.
Let’s consider a claim of a patent related to a car seat, the claim describes a car seat which includes:
an electronic height adjustment mechanism;
a backrest adjustment mechanism; and
a mechanism for enabling back and forth sliding of the seat.
Now you should check whether all the elements of the patent claim appear in your product, i.e. whether your car seat product has the electronic height adjustment mechanism, a backrest adjustment mechanism, and a mechanism for enabling back and forth sliding of the seat. If all the three mechanisms exist in your product, then your product infringes upon the patent rights of the patentee.
Further, if your product has all the features of the elements of the claim of the patent and has additional features, such as seat warmers, even then your product infringes upon the patent.
However, if your product does not have at least one elements of the claim, such as, absence of electronic height adjustment mechanism, but has the remaining features, then your product does not infringe upon the patent.
I hope you find this article helpful in product development. Feel free to contact us for any information that you may require.
About the author: Hemanth is a patent consultant and Co-founder of InvnTree Intellectual Property Services Pvt. Ltd., a patent services company based out of Bangalore http://invntree.com/
