Patent Infringement and Enforcement

Once you have spent the time and the money to obtain a patent registration, you then have a statutory monopoly which you can endeavor to enforce.  Enforcing the rights that are guaranteed by your patent is your responsibility – while the patent office authorizes or grants to you the monopoly to your invention, it is the responsibility of the patent owner to police and enforce their own patent rights.

Typically the patent is enforced by way perhaps first of a cease-and-desist strategy followed with the issuance of legal proceedings if necessary.  In the Canadian context, proceedings for patent infringement can be undertaken either in the Federal Court or in the superior courts of the provinces.  There are limitations and strategic differences to commencing an enforcement proceeding in either of those courts.

A patent enforcement lawsuit is typically a civil lawsuit, although some countries do have criminal penalties for some types of patent infringement or other patent related activities.  Typically the damages or remedies which might be sought and rewarded in a patent infringement lawsuit would include monetary compensation for past infringement and/or an injunction which would prohibit the defendant from engaging in future acts of infringement.

The claims of a patent are what clearly and distinctly state the rights that a patent owner has claimed as his invention, and which the Patent Office has recognized and granted.  The claims of the patent are what define the scope of the monopoly right granted under the patent, with the remainder of the document being intended to support the construction, interpretation or understanding of the claims.  Any approach to patent infringement is effectively a two-stage analysis – firstly the issue of infringement must be determined, and then the issue of the validity of any parts of the patent which are potentially infringed must be addressed.

Often the defense which is put forth by an accused infringer of the patent is to challenge the validity of the patent on various grounds.  A patent can be invalidated on grounds that vary from country to country but typically they are a subset of the patentability requirements for that country.  Most often the primary grounds for invalidating a patent would be statute barred subject matter based on a prior publication by the inventor or a related party, availability of published prior art in the jurisdiction or elsewhere in the world that renders the invention obvious at the relevant time, or a failure to mention all of the inventors etc.

In many cases the commencement of a patent infringement lawsuit comes as the culmination of a great amount of strategic planning and foresight by the patent holder.  There are often many different strategies which can be contemplated, either contentious they are amicably, to accomplish the objectives of the patent holder.  Patent enforcement strategy is just one of the weapons we have at our disposal in the development of full sum intellectual property plans and strategies on behalf of clients.