Patent Enforcement Attorney Discusses the Difference between Patent Infringement vs. Patent Invalidity

Patent infringement is the unauthorized making, using, offering for sale, or selling a patented invention within the United States, or importing a patented invention into the United States.  The patent claims determine the scope of what the patent covers.  Patent infringement is a two step inquiry: (1) what do the patent claims mean; and (2) comparison of the patent claims to the accused device.  The meaning of the patent claims is determined by the court in a claim construction or Markman proceeding.  Then the construed claims are compared to the accused device to determine whether the accused product infringes the patent.  Infringement occurs when every claim limitation of a patent claim is met literally, or by equivalents, by the accused device.

Patent invalidity refers to whether the patent meets the statutory requirements for patentability, enumerated in the Patent Laws, 35 U.S.C. § 101 et seq.  The Patent Laws specify the subject matter for which a patent may be obtained and the conditions for patentability.  For example, a patent must be useful, novel and not obvious in view of prior art.  This inquiry is separate from a patent infringement inquiry.  However, when comparing a patent to prior art, courts employ the same claim construction that is used for the infringement inquiry.  Often, when faced with a patent dispute, accused infringers pursue defenses of noninfringement as well as patent invalidity.

If you have a patent issue, or wish to register a patent, you may contact one of our patent attorneys for a free evaluation or call 866.936.7447 (International Toll Free).