Myers on Patent Law: What power do you have with a patent?
By Susan Myers, Spencer Fane Britt & Browne LLP
Good news! The U.S. Patent and Trademark Office has smiled upon you. You have been issued a patent. Your life's work is complete. Surely, now the road is paved with gold. But wait, what does it really mean to have a patent? What rights does this piece of paper give you?
A patent gives you what amounts to a monopoly over your invention for a limited period of time. In exchange for this monopoly, you have to disclose your idea to the public. Patents are public information after they have been issued. Patents can be found on the Internet (one source is my favorite web site: www.upsto.gov; they can also be found in patent depositories at designated libraries throughout the United States).
Legal Details
In the context of a monopoly, as patent holder you get the statutory right to exclude others from making, using, selling, offering to sell, or importing your invention. Also liable for infringement will be those who "actively induce[s] infringement" and contributory infringers.1
Suppose you suspect someone of infringing your patent. There are no Patent Police to protect you from infringers. You must go to a federal court to seek protection.
What happens once you take the case to court? At the back of your patent are your patent claims. These are the specifics of your invention. You detailed these claims to be the essence of your invention. In a patent suit, the court first looks at the claims of the patent in question to understand the "scope and meaning of the claims at issue."2
Literal Infringement
The court then looks at the claims of your patent to see if there is any literal infringement of the patent. If the court finds that the accused device or method is missing an element of the patented device or method, then the court will find no literal infringement.
I've heard this analysis compared to a Christmas tree. Let's say your invention is a decorated Christmas tree, and as claim number one of the patent you have listed your invention as the tree plus each individual ornament decorating the tree. Then, an accused infringer comes along with an identical tree but one less ornament than you claimed. No infringement is found. In other words, your claim was too broad to provide you adequate protection. Your claim was easy to literally infringe.
Doctrine of Equivalents
Another avenue in which the court finds infringement is under the judicially created "Doctrine of Equivalents." Under this doctrine, if the court finds that the infringer substituted an equivalent element for one of your patented elements, infringement may still be found. The court uses the test of "[w]hether a component in the accused subject matter performs substantially the same function as the claimed limitation in substantially the same way to achieve substantially the same result. . ."
The law surrounding infringement analysis is tricky. Don't rely on this article to answer all of your legal concerns. If you have a concern, contact your patent attorney.
References
1. 35 U.S.C. ยง271
2. Streamfeeder, LLC v. Sure-Feed Systems, Inc., 175 F.3d 974, 981 (Fed. Cir. 1999)
About the Author
Susan Myers is a registered patent attorney and professional electrical engineer. She focuses on all aspects of patent law, including patent applications, responses to office actions from the U.S. Patent and Trademark Office, patentability opinions, and infringement analyses.
In addition, Myers is an adjunct faculty member at Fort Hays State University, Department of Information Networking and Telecommunications. She has taught courses in telecommunications and technology.
Myers' electrical engineering experience includes six years as an engineer with the Kansas City Power and Light Company. She was an engineer for Union Electric in St. Louis at their Callaway Nuclear PLANT facility, a design and test engineer for Shopsmith in Jefferson City, Missouri, and an electrical engineer for Johns Hopkins University Applied Physics Laboratory in Laurel, Maryland.
Myers is a licensed to practice as a patent attorney before the United States Patent and Trademark Office. She is also a licensed attorney in Kansas and Missouri. She is a registered professional engineer in Kansas, Missouri, and Wyoming.
She can be reached at Spencer Fane, 1000 Walnut Street, Suite 1400, Kansas City, MO 54106.
Phone: 816-292-8180; fax: 816-474-3216; e-mail: smyers@spencerfane.com.