Vitek IP

  Vitek IP is a leading patent brokerage and consulting firm which offers a full range of intellectual property services to individuals, small companies, and large enterprises. By leveraging client patents and the best technology we maximize the returns of our clients. Vitek IP also provides patent valuation, patent analytical services, and IP strategy.  

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The team at Richardson Oliver Insights (ROI) recently wrote an article offering advice to patent sellers on how to effectively market and sell your patents. There is some strong advice that sellers should take into account. It’s worth reading if you’re looking to sell patents. However, the piece is one-sided in its guidance on navigating an antiquated patent market.

Click here to learn more.

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Determining the potential value of a patent portfolio can feel like a complex, even impossible, task. Though businesses and inventors alike rely on innovation to remain competitive, the intangible nature of intellectual property makes it inherently difficult to value. 

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Vitek’s patent consultancy, brokerage group, and research organization provide clients exceptional guidance navigating the patent landscape. For more information, visit www.vitek-ip.com.

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PATENT INFRINGEMENT: JUST HOW COMMON IS IT?

In one word: very!

It is often said that “great minds think alike.” While that may prove innocuous in a general sense, it can easily lead to unlawful infringement in the patent world. Whether intentional or accidental, patent infringement is a common occurrence, and infringement litigation has been steadily increasing over the past five years. To grasp how commonly infringement occurs, it is necessary to understand what infringement is, and how it happens.

INFRINGEMENT: THE LAW

Patents in the United States are governed by Title 35 of the Code of Laws of the United States, more commonly known as the U.S. Code. According to chapter 28, section 271, patent infringement occurs when one who, without authority, makes, uses, offers to sell or sells any patent invention within the United States or imports into the United States any patent invention during the term of the patent. Any person who does so is liable as a patent infringer.

INTENTIONAL INFRINGEMENT

There are two main types of infringement: Intentional Infringement and Unintentional infringement. Intentional infringement, also known as willful infringement, as the name implies, occurs when someone deliberately and intentionally copies a claimed invention with the knowledge that a patent for that product or process exists. For example, if a company that manufactures cell phones knowingly copies an existing patent for a cell phone screen that cannot be cracked, and manufactures phones containing that screen, a willful infringement occurs. If the patent holder proves infringement, they will be awarded reasonable damages based on sales of the infringing product. If the patent holder proves the infringer willfully committed infringement, substantial punitive damages may be awarded. However, proving willful infringement is very difficult.

UNINTENTIONAL INFRINGEMENT

Unlike willful patent infringement, unintentional patent infringement occurs when a product or process has been developed that infringes on an existing patent, but the developer lacked knowledge of the patent’s existence. You may be thinking, “how could someone come up with the same idea as another inventor? It must be extremely rare.” Interestingly, unintentional infringement occurs with great frequency. As the global economic market became more interconnected over the second half of the twentieth century, businesses providing the same products and services began competing against each other.

Using the same cell phone example, a cell phone manufacturer in China spends several years developing a new type of indestructible cell phone screen and places the product into the international marketplace for sale in Europe and North America. Unbeknownst to the Chinese manufacturer, two years earlier, a German mobile company had the same idea and developed its own screen containing the same composite materials and manufacturing process. The German company applied for and received a patent for its product one year before the Chinese manufacturer patenting its product in China. The Chinese manufacturer has unintentionally infringed on the German patent.

Examples of this kind can occur frequently with companies engaged in the same type of product development. If you consider the process of developing technology for market, it isn’t that surprising. Two international manufacturers of cell phone technology employ scientists and engineers in their own research and development departments. These technocrats possess similar degrees and professional backgrounds, and they utilize similar processes to identify a common problem in the mobile industry: easily cracked screens. Using their expertise, these experts identified the same material and manufacturing process to solve the problem.

A prudent company should seek a “freedom to operate” opinion from a patent attorney before bringing a new product to market. However, in reality the rush to get new products to market often takes precedence over ensuring the patentability of a product. Seeking to capitalize on a void in the marketplace, many companies adopt an attitude of “get the product on the shelves, and let the lawyers sort out the consequences.” Despite the accidental nature of the example infringement, the Chinese company will be required to pay damages, though punitive damages are not applicable.

CONTRIBUTORY INFRINGEMENT

Contributory infringement involves actions that contribute, or potentially contribute, to someone infringing on a patent, even if those actions do not directly infringe upon the patent. Importantly, the infringer must have knowledge of the patent to be liable for contributory infringement. Generally, there are three categories of contributory infringement:

(1) supplying a product for which the only reasonable use is an infringing use;

(2) supplying a product that is not a “staple commercial product” and the supplier had reason to believe the product would be used as part of an infringing use, and

(3) the supplied product includes instructions or an advertisement that suggests an infringing use for the product.

For example, a person would be guilty of contributory infringement for supplying a component for a cell phone camera that has no other reasonable use except for in a process that is patented by Apple for its iPhones.

INDUCEMENT

Section 271(b) of the Code provides that “whoever actively induces the infringement of a patent shall be liable as an infringer.”  The Code defines “induce” as leading on, influencing, to prevail upon, or to move by persuasion or influence. To prove inducement, a patent owner must show that the accused infringer actively encouraged the infringement, with knowledge that the acts they induced infringed upon a patent. To prove infringement by inducement, the patent holder must show that the defendant knew the intended induced acts were infringing upon a patent.

DOCTRINE OF EQUIVALENTS

Under the Doctrine of Equivalents, an accused product or process may be found to infringe on an existing patent, even if it does not literally infringe on the patent. To determine infringement under this theory, the courts will consider whether the accused product or process contains elements identical or equivalent to each claimed element in a patented invention. The purpose of the Doctrine is to prevent an infringer from stealing the benefit of a patented invention by making minor or insubstantial changes to the claimed invention while retaining key components or characteristics that are central to the patented function.

INFRINGEMENT: OTHER TYPES

UNKNOWN INFRINGEMENT

Unknown infringement occurs when a patent holder is unaware that one of its patents is being infringed. To enforce a patent, the burden is on the patent holder to identify infringing products. Unknown infringement most often occurs when an inventor provides access to his invention to a prospective buyer, who declines to purchase the patent, but subsequently brings a new product to market utilizing the patent.

UNVIABLE INFRINGEMENT

Unviable infringement occurs when a known infringement occurs, but it is not worth the financial cost to litigate the issue because the patent is not valuable enough to justify the cost. Unviable infringement occurs more frequently than unknown infringement.

UNENFORCEABLE INFRINGEMENT

United States patent laws only have effect within the United States. Thus, when a foreign corporation introduces a product or process that infringes on a U.S.-held patent, the patent owner has no recourse unless the invention was also patented in the country where the product was sold.

LEGAL INFRINGEMENT

Using the example of the Chinese manufacturer, the company could have avoided infringing on the German patent if they would have obtained a license to use the patent from the German company. A licensing agreement allows a manufacturer to utilize the patented information in exchange for a royalty based on sales of the product or a set fee. This is a form of legal infringement.

FINAL THOUGHTS

Though it takes many forms, patent infringement is a surprisingly common occurrence. As a result, a patent holder would be wise to remain vigilant in watching for potential infringers and would do well to file patents in other jurisdictions where it appears their patent could be useful.

The core team of patent consultants at Vitek IP, LLC have analyzed over 20,000 patents, while managing hundreds of buy-side and sell-side transactions for some of the world’s largest companies. Vitek’s founders have over five decades of experience in IP and tech and have developed sophisticated patent sales and patent acquisitions strategies for some of the world’s largest companies. Vitek’s patent consultancy, brokerage group, and research organization provide clients exceptional guidance navigating the patent landscape. For more information, visit www.vitek-ip.com.

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During the first half of 2021, the number of patent cases filed before the Patent Trial and Appeal Board (PTAB) and Federal district courts have continued to trend upward from Q1 2020, increasing by 4.3% during the first quarter alone. If this rate continues, 2021 should see an increase of more than 1,200 more filings than filed in 2020. Moreover, patent litigation in 2021 has provided several noteworthy decisions, both in terms of the size of damages awarded and in cases establishing new legal precedent.

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Vitek IP specializes in patent analysis and valuation for information technology patent holders and buyers

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Patent Litigation: An Overview

The courtroom is famous for its ability to drive a plot. From Harper Lee’s iconic, To Kill a Mockingbird, to hit television shows like Law & Order, Americans love the drama of trial. The courtroom drama genre is so prevalent in American culture that most Americans have become familiar with basic concepts of criminal law and procedure, contract law, and liability through their exposure to this content. However, one area of law that hasn’t received much screen time despite its high stakes and big industry players, is patent law and litigation. Though often overlooked by the general population, patent litigation is an important mechanism for protecting patents from infringement. Compared to other areas of law, patent litigation ranks among the most costly and time-consuming. For complex cases involving significant damages, litigation costs (i.e. attorneys fees, expert fees, and filing fees) can run into the seven figures. Each year, there are more than 4,000 new patent-related lawsuits filed in federal district courts throughout the United States. While this figure represents a fraction of the total number of cases filed annually in state and federal courts, the decisions in these cases have far-reaching consequences, and verdict awards can reach billions of dollars. Many of the world’s biggest consumer brands, such as Apple, Microsoft, and Nokia, are frequently engaged in litigation involving the rights to technology we use every day. THE LAW Patent law is unique in that it is derived from only two sources: the United States Constitution, and Federal statutes enacted by the United States Congress. As a result, federal courts have exclusive jurisdiction over patent infringement cases. Notably, patent cases are not filed in special patent courts or heard in front of specially-trained judges. Instead, patent cases are filed in the same district court that hears other civil and criminal matters falling within the jurisdiction of the Federal courts. It is important to note though that some districts, like Delaware, where thousands of corporations have headquarters, and the Western District of Texas which is becoming well-known for its plaintiff-friendly outcomes, have significantly larger patent dockets than other districts. With regard to precedence from existing case law, decisions issued by the United States Supreme Court have the most authority. This is followed by the United States Court of Appeals, Federal district courts, and finally, rules or decisions issued by administrative agencies, such as the Patent Trial and Appeal Board (PTAB). THE SUIT One of the most common actions in a patent lawsuit involves an allegation that one party has infringed upon the patent of another. A party may commit infringement if they are involved in the selling, making, using, or importation of a product or service which utilizes the patented innovation, or contributes to any of these acts. A party alleging infringement could seek enforcement through binding arbitration or mediation, and may result in issuing a license for use in order to settle the dispute. However, if these options prove unwanted or unsuccessful, a lawsuit may be inevitable. PRE-TRIAL Once a lawsuit has been filed and the party serviced with the complaint, in-court appearance is required or a default judgment may be entered. When the parties appear in court, the defendant will be required to answer the allegations of infringement, or move to dismiss the complaint based on an asserted defense. Declared defenses include, but are not limited to: • Prior commercial use (for patents issued after 2011), • Non-infringement, • Invalidity, and/or • Unenforceability.

If the complaint survives dismissal, the parties will engage in discovery, or the exchange of requested information and evidence related to the patent at issue. The purpose of this discovery is to facilitate fact-finding by the court and provide sufficient evidence to compare the allegedly infringing product or process to the patent. Infringement occurs when the accused product, process, or service includes every element of an asserted claim. This is known as literal infringement. Infringement can also be proved under the doctrine of equivalents, where an accused product or process does not include every element, but only contains insubstantial differences from a missing patent claim element. Other forms of infringement include: • Contributory infringement: When a third-party supplies the infringer with a part that has no other use aside from creating an infringing product, • Indirect infringement: Assisting in the creation of a patent infringing product, and • Willful infringement: Intentional disregard of another’s patent. During discovery, both sides will select experts to explain the patents, infringement claims, and financial matters (such as the value of the infringement). These experts may be called to testify to their findings, and the trial judge is tasked with assigning weight to the experts’ conclusions. Frequently, the opinion of these experts will be the deciding factor in an infringement lawsuit. TRIAL If the case is not dismissed and the parties are unable to settle, a trial is held before a judge or jury. During a trial, the party asserting infringement must prove it by a “preponderance of the evidence,” meaning that it must be more likely than not that the allegations made by the party are true. In a trial, juries usually decide on questions of fact, while a judge decides on questions of law, including the admissibility of certain evidence. Juries typically deliberate on questions such as the sufficiency of the written description of the patent, novelty, obviousness, and the amount of monetary damages to be awarded to the prevailing party. The trial begins with each party’s opening statement to outline their theory of what the evidence will show, followed by the presentation of evidence. Typically, this will involve expert testimony, as well as documents and other physical exhibits. After the presentation of evidence, the parties make closing arguments, and the judge or jury will deliberate before rendering a verdict. DAMAGES

In some cases, courts may order a permanent injunction requiring the offending party to cease any use or production of the patent product or services, and the prevailing party may also be able to receive monetary damages. The amount of damages awarded to the prevailing party are a product of statutes. Federal law allows for punitive damages and compensatory damages, which are meant to adequately compensate a party for the infringement, including interest and litigation costs. Adequate compensation has also been found to include lost profits or royalties from the use of the patent. In cases where the prevailing party proves the accused infringer had notice of the patent and acted unreasonably or willfully after learning of its existence, the court may impose punitive damages of up to three times the amount of compensatory damages.

Damages are frequently an area where a patent lawsuit stands apart from others. In 2020 alone, juries returned astronomical verdicts reaching billions of dollars in multiple cases. Notable cases include: VSLI v. Intel ($2.18 billion awarded), Centripetal v. Cisco ($1.9 billion), Apple, Inc. v. Virnetx, Inc. ($502 million) , and Apple, Inc. v. Optis Wireless ($506.2 million). These are truly staggering figures, the volume of which can be attributed to the universal presence of many technologies and devices consumers use every day.

CLOSING THOUGHTS Though not as well-known as other areas of law, patent litigation is unique and fascinating in its technical nature. While a patent case may not be a matter of life and death, the decisions rendered in these cases can have far-reaching effects, not only through potentially large monetary awards, but also on the price and availability of consumer goods utilizing a wide range of technology. Products caught up in infringement litigation are frequently subjected to a cease-and-desist order, which halts production and distribution until the lawsuit is resolved. If infringement is proven, the infringing party may not only be subjected to significant damages, but also be required to pull the product from shelves, or both. This has a very real effect of reducing market competition and increasing prices on certain goods, which in turn affects supply, demand, and overall cost for consumers. The core team of patent consultants at Vitek IP, LLC have analyzed over 20,000 patents, while managing hundreds of buy-side and sell-side transactions for some of the world’s largest companies. Vitek’s founders have over five decades of experience in IP and tech and have developed sophisticated patent sales and patent acquisitions strategies for some of the world’s largest companies. Vitek’s patent consultancy, brokerage group, and research organization provide clients exceptional guidance navigating the patent landscape. For more information, visit www.vitek-ip.com.

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Vitek IP are patent brokers specializing in information communication technology portfolios

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Vitek IP offers comprehensive market research services for technology patents

Our Patent Market Research approach provides key insights for tech executives and patent professionals.

Outpace the competition with a smart IP strategy through patent market research, technology landscaping, competitor analysis, and industry evaluation.

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If you want patent creation and development services, Vitek-IP is the best option for you. Vitek-IP has decades of experience in helping start-ups and corporations grow their patent portfolios through patent creation. We consistently help clients boost their patent protection and maximize IP transaction value. Contact us today to see how Vitek-IP can develop your patent portfolio with a market-driven strategy.

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Patent Consultant in the USA

Looking For a Patent Consultant in the USA? Vitek IP Provides you appropriate services . The main purpose of the patent consultant is to help a client on the basis of legal protection by filing a patent application and prosecuting the same registration.  Call us today or visit our websites for more details.

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Patent Brokerage Services in the USA

A patent broker specializes in the valuation and marketability of patent and patent portfolios as well as brokering sales, license, and purchase between patent holders and buyers. They also provide patent marketing services, patent advice, informative research, and potential infringement. To get more details about patent broker services call us today at: [phone]

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Excellent Patent Creation Services in the USA

Vitek IP offers you different types of strategies in the procedure of patent creation and development process. With years of experience as a patent consultant,  patent transactions.  we are a confidential source for providing clients exceptional guidance navigating the patent landscape. To know more about our services give us a call today .

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Why patent research is important ?

Patent Research can be highly valuable in the various process including providing a patent holder, or other interested parties crucial information, related to the market applicability and value of a patent. To get more details about patent research call us today or visit our website .

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Best Patent Creation Services in the USA

Vitek IP provides various strategies in the process of patent creation and development process. With decades of experience in a patent consultant,  patent transactions.  we are a trusted source for providing clients exceptional guidance navigating the patent landscape. Contact us today to know more about our services.  

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Patent Brokerage in the USA

A patent broker is the one who will analyze the assets, prepare a   portfolio, for marketing and sale . Vitek provides buy-side and sell-side patent brokerage services.  We have a highly qualified team to help you with IP  monetization.  Get in touch with us call us today or visit our website.  

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Best Patent Consultant in USA

Searching for the right patent consultant? Vitek-IPoffers you the right services and it has various types some of them are : Patent Agents, Patent Attorneys, and Patent Brokers . To get more details visit our website or call us today at : [phone]