Patent infringement occurs when a person or entity, without the patent owner’s authority, makes, uses, sells, offers to sell, or imports the invention as claimed in a U.S. patent, during its unexpired term. Infringement requires that each and every element (or the equivalent) of at least one claim of an unexpired patent be present in the accused product or process. Infringement also occurs when imported goods are manufactured outside the United States by a process patented in the United States.
Infringement can be direct or contributory. Contributory infringement may occur when one sells a special component of a patented invention. A person who actually induces another to infringe is also considered to be an infringer. The personal liability of corporate officers can be shown in those cases where active involvement in the infringement is illustrated.
1. Utility Patent Infringement. Monetary damages for infringement include lost profits attributed to the infringement or a reasonable royalty for the infringing goods or processes. Preliminary and permanent injunctions also are available to prevent continued infringement. Where infringement is willful, treble (tripled) damages, attorneys’ fees, and costs can be recovered.
2. Design Patent Infringement. Unlike utility patent infringements, the infringer’s profits are among the remedies available in cases of design patent infringement. Additional remedies include lost profits and a reasonable royalty, along with attorneys’ fees, if applicable.
In order to prove design patent infringement, an accused article is compared to the design (in all of the figures of the patent) and must satisfy the “Ordinary Observer Test” set forth by the Supreme Court over 125 years ago. Under this test, if an ordinary observer (or purchaser) is deceived into confusing the accused article with the patented design, then the design is infringed. The accused article need not be identical. In the words of the Supreme Court, “[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.” Gorham Mfg. Co. v. White, 81 U.S. 51 (1871).
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