Under United States law, patent infringement occurs when the defendant makes, uses, sells, offers to sell, or imports the infringing invention or its equivalent. Under United States law, no patent infringement action may be started until the patent is issued. Pre-grant protection is available.
35 USC 154(d) allows for a patent applicant to obtain a
reasonable royalty for patent infringing activities before a patent is granted.
The right to obtain provisional damages requires a patent holder to show
that the patent infringing activities occurred after the publication of the patent application 18 months from filing,
that the published application is substantially identical to the eventually granted patent, and
that the infringer has "notice" of the published patent application.
"Direct infringement", "indirect infringement", "contributory infringement" and "induced infringement".
A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent. 35 U.S.C. 271(a).
Indirect infringement can occur when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device.
35 U.S.C. § 271(b) defines (active) induced
infringement: "Whoever actively induces infringement of a patent shall be liable as
This provision typically protects against those who aid and abet end users. National Presto Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1195 (Fed. Cir. 1996).
If a product has use only if used in an infringing way, the seller could be found liable for the direct infringement of the end user.
There can be no inducement if there is not first a
showing of direct infringement. Fuji Mach. Mfg. Co. v. Hover-Davis, Inc. 60 F.Supp. 2d
111, 117 (W.D.N.Y. 1999).
A common defense to patent infringement is a counter-attack on the patent itself, that is, the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed and that such infringement caused some sort of damage.
Under United States law, a infringer may also raise a statutory safe harbor defense to infringement in case of a medical procedure patent issued after 1996.
United Kingdom law
Section 60 of the United Kingdom Patent Act 1977 defines patent infringement.
Modes of patent infringement:
Where the invention is a product, by the Making, Disposing of, Offering to dispose of, Using, Importing or Keeping a patented product.
Where the invention is a process, by the use, or offer for use where it is known that the use of the process would be a patent infringement. Additionaly, by the disposal of, offer to dispose of, use or import of a product obtained directly by means of that process, or the keeping of any such product whether for disposal or otherwise.
An action for patent infringement can only be brought after grant of the patent, but damages can be recovered under Section 69 UK Patent Act 1977 for infringing acts conducted after publication of the application, but before grant, provided those acts infringe the claims both as published and as granted.
The protection conferred by publication of the application is known as provisional protection. Publication of European applications and PCT applications confers provisional protection in the same manner, provided the application is published English.
Patent infringement insurance
To protect either an inventor or a third party from the risks of inadvertently infringing a patent insurance companies provide patent infringement insurance cover.
Patent infringement insurance covers legal costs in case inventors have to sue an infringer to enforce their patent.
Patent infringement insurance covers third parties' legal costs in case they are sued for patent infringement by an inventor.
Though expensive, patent infringement insurance covers high legal costs of patent infringement cases which could run into millions of dollars and almost all patent infringement cases are settled.