How Can One Defend Against Patent Infringement (Patent Theft)?

Patent holders have the exclusive right to use their invention and to grant others licenses to use it under the terms they choose. Using a patent without obtaining permission from the rights holders, including production, copying, imitation, offering and importation, constitutes an infringement of the patent, and the patent holders are entitled to issue an injunction against the infringer as well as claim financial compensation due to the infringement.
Patent infringement (patent theft) is always territorial and local. It is not possible to sue for patent infringement in a particular country, until after the patent application has been registered in the patent register of that country. At the same time, it is also possible to claim retroactively, for an infringement that occurred after the publication of the application for registration of the patent.
Use of a patent for non-business purposes, or for the purpose of developing generic drugs that will be marketed only after the expiration of the patent – do not constitute a patent infringement.

Patent infringement – 2 main types
Verbal patent infringement – this is a complete, or almost complete, copying of all patent components.
Substantial patent infringement – which is based on the concept of the “doctrine of equivalents” and refers to cases in which, although there is no infringement of the verbal description in the patent registration documents, there is equivalence between the content and essence of the new product or process, and the elements of the registered patent, or the new product performs the same functions as the patent and in the same How the patent performs them.

Likewise, patent infringement can also be carried out by the infringer offering for sale different components, each of which by itself does not infringe the patent, but putting them together constitutes an infringement of the patent.

What can be done in case of patent infringement (patent theft)?
In the case of a patent infringement claim, the matter is clarified in a lawsuit and the burden of proving the infringement falls on the claimant, who owns the patent rights. At the same time, as part of his own defense, the defendant can try to show that in the first place, for one reason or another, it was wrong to register a patent for the disputed invention, and that the registration of the patent must be canceled, and subsequently the infringement claim against him.
After the lawsuit is filed, the court will decide whether the patent has indeed been infringed by examining the patent documents – the details, the illustrations and the claims, and comparing them to the infringing product or process. It should be emphasized that the patent descriptions are often subject to different interpretations, and the court must decide how a professional dealing with the content of the patent would interpret these documents and not how the reasonable person, who is not knowledgeable in the field, would interpret them. Also, sometimes the opinion of a professional expert in the field of the invention will be required. Due to the great complexity of patent infringement issues, in any dispute regarding the matter it is highly recommended to use an intellectual property lawyer with expertise and proven experience in patent infringement claims.

Compensation for patent infringement
According to the Patent Law, in the event of a patent infringement, the patent owner is entitled to claim compensation from the infringer, and the court will determine the amount of compensation after examining the details of the case, including: the extent of the infringement, the extent of the damage caused to the patent owner, and the profits the patent infringer made as a result of the infringement. If the infringement was committed incompletely Lev, and in particular after the patent owner has warned the infringer not to commit it, the court can also impose additional punitive damages on the patent infringer, beyond the basic infringement damages.
It should be noted that the Patent Law does not grant an automatic right to a statutory compensation claim, (ie without the need to prove damage), however, since it is known that there is difficulty in proving economic damages for patent infringement, the courts can and sometimes do award compensation to the patent owner, even without it being proven that he suffered damage.

How can you defend yourself from a patent infringement claim (patent theft)?
The main way to defend against a patent infringement claim is to claim that the product or process in dispute does not infringe the patent, or to claim that the patent itself is not valid and should be invalidated (patent expiration) since it does not meet the requirements of innovation in the market, or the requirement of inventive progress, which are a condition for registering a patent. It should be emphasized that the point of assumption is that the registered patent is valid, and the burden of proving the invalidity of the patent rests on the infringer.

In conclusion, due to the great complexity of patent infringement issues, and the significant commercial risks inherent in patent infringements, on the one hand, and in the cancellation and disqualification of the patent, on the other hand, in any dispute and patent infringement claim, an intellectual property lawyer knowledgeable and experienced in patent infringement litigation should be consulted as soon as possible.
The team of our office has great expertise in patent law and in particular in patent litigation. As a leading firm of lawyers and patent attorneys in the field of intellectual property, we have accumulated rich and diverse experience of over 30 years in the field of patents and in representing over 8,000 clients in patent infringement claims, both as plaintiffs and as defendants, in requests for injunctions, infringement compensation claims, defense in infringement claims, providing opinions In disputes over the rights to use patents and mediation and arbitration procedures concerning infringement of patent rights.
As a first class patent registration law firm and intellectual property lawyers, Dr. Mark Friedman’s firm has over 30 years of expertise and extensive experience in drafting patents in Israel and the world, and in particular in the USA, where the firm’s team has registered over 3,000 patents. The firm’s staff accompanies its clients throughout the patent registration process and includes both patent registration lawyers and patent attorneys in all fields of invention.

*The aforementioned in this article and on the website in general should not be considered as legal advice and the things written in it should not be considered as a substitute for individual legal advice, but a personal opinion and/or a general explanation only. Of course, you should not rely on and/or act in accordance with the above without individual legal advice from an attorney

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