Chemical and pharmaceutical companies protect their investment in research and development and the future of the companies by securing patents on their inventions. Patents help you resist competition. Success or failure of the company often depends on the strength of the patent. The words in the patent document must meet rigid formality requirements under the patent laws. Even if the invention covered by the patent is a fantastic one, the court will throw out the patent if it violates any one of the formality requirements.

The patent document is normally divided into several sections, for example, one section describing the background of the invention, another section describing the invention as a summary, another section describing the drawings of your invention, yet another section describing in detail how to make and use the invention, and a final section that lists various aspects of your invention in numbered sentences, typically from 1 to 20. These numbered sentences or claims form the most important section of the patent.

It is the claims that define the invention. When a competitor wants to design around your invention, he will look to the language of the claims. When you sue someone for infringing your invention, the court will look at the claims in your patent. It is clear that the claims are of paramount importance.

The patent contains independent claims and dependent claims. Dependent claims will refer back to an earlier claim. Independent claims do not refer back to any other claim. For example, dependent claim 2 will refer back to independent claim 1. When dependent claims refer back to other claims, they should meet certain rigid formality requirements, one of which is that the dependent claim cannot be broader in scope than the claim it refers back to. Thus, for example, if claim 1 describes a drug in acid form or its salt form, claim 2 can describe the drug in salt form. However, if claim 1 describes only the acid form, claim 2 cannot describe the salt form. If it so describes, then claim 2 will be broader than claim 1, which is forbidden under the patent laws.

In a recently concluded battle between pharmaceutical giant Pfizer Inc. and generic drug maker Ranbaxy Laboratories, the generic drug maker was able to knock out a patent that covered the blockbuster drug Lipitor. The patent claim that Pfizer asserted against Ranbaxy was held invalid by the high court. Here, Pfizer asserted claim 6 describing a calcium salt of the drug against the opponent. Claim 6 referred back to claim 2 which described an acid form of the drug but not the salt form. The high court held that claim 6 cannot properly refer back to claim 2. The harsh result faced by Pfizer is somewhat surprising because it was believed by many that a court would not look at the form over substance, just as the lower court did. The lower court was reluctant to find fault with the patent claim.

The high court opinion emphasizes the fact that filing a winning patent requires careful consideration of various legal concepts including the intricate formality requirements of the patent law.

Copyright 2006

By: Xavier Pillai

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Patent infringement lawsuits deal directly with patent violations, the violation of an inventor’s right to exclusively market and profit from the novel and original idea. Filing one is costly, and in the United States, the governing body of patents and patent application determines what is unique and original enough to be considered novel.

The U.S. Patent Office does not deal with infringement. For this, a lawyer is necessary in order to file a infringement lawsuit. The filing of a patent infringement lawsuit means that you have successfully obtained rights from the U.S. Patent Office, and whether intentionally or accidentally, someone else has mimicked your patented invention and has begun to profit from it.

Since the U.S. Patent Office generally prefers that all patents are filed through a lawyer or agency, most inventors already have a lawyer. However, those who exercised their decision to file with the U.S. Patent Office via a patenting agency are going to need to acquire a lawyer, as agencies do not handle infringement lawsuits.

Filing a patent infringement lawsuit generally comes after a series of predetermined steps that allows the company or inventor who has created the violation the opportunity to cease production and marketing and return with a infringement settlement offer.

In some cases, the settlement offer is fair and the settlement offer is accepted. However, in most cases the settlement offer is what the company or inventor feels they can handle without presenting too much of a financial hardship on themselves and it really doesn’t reflect a fair offer. Thus, the lawyer will then file on your behalf a patent infringement lawsuit.

The U.S. Patent Office maintains a record of all active and expired patents, and their records are available to the public. If yours has been accepted by the U.S. Patent Office, your patent will be in a searchable database that anyone can search to discover whether their invention or enhancement will be in jeopardy of an infringement violation.

Obviously, in cases of patent infringement, the company or inventor did not adequately search the U.S. Patent Office’s database, or they decided that their invention was close enough to being different and decided to move forward with production. In many cases, violators have filed a request for a provisional patent or for a patent with the U.S. Patent Office and have not yet received a response. The damage caused by law violations is grounds for an infringement lawsuit.

Patent infringement lawsuits are actually on the rise. Lawyers receive a lot of business from those who have filed design patents with the U.S. Patent Office. International laws are quite different, and these laws require interpretation from a highly skilled lawyer.

However, there are laws which determine that foreign violations are illegal as well and an infringement lawsuit can be filed against a foreign patent law violator, provided the laws which were violated apply to international standards. These questions can only be adequately answered by a well informed patent lawyer.

Once an infringement lawsuit has been filed, the violator has the option of fighting the patent infringement lawsuit in court, or making another, more reasonable offer. If the infringement lawsuit ends up in front of a jury, the quality of your lawyer will make a significant difference in the outcome of the infringement lawsuit.

Patent infringement is basically theft of thought, and it is important that victims of violations stand up for their rights and are willing to file infringement lawsuits. This helps to keep the laws stable and accountable. Without lawyers and without infringement lawsuits, patent violations would carry no significant consequence, and thus what would be the motivation for adhering to them?

The U.S. Patent Office only grants patents to unique and original ideas that enhance or better advancement. They are very strict about their regulations, which is why the laws exist. Being the victim of a patent violation undermines the necessary and costly steps you took to protect your invention, and an infringement lawsuit is the only recourse available.

A well educated patent lawyer can help you every step of the way, from filing the initial patent, to understanding laws, to filing an infringement lawsuit. This is just one reason why lawyers are preferable to patenting agencies in the long run.

By: Nick Johnson

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One of the questions that patent holders may have is “who can be sued in a patent infringement lawsuit?” By law, any person who makes, uses, offers or sells something that is protected by a current patent, or who imports into the United States anything that is protected by a current patent, is guilty of patent infringement. Likewise, anyone that makes, uses, offers or sells any product or process that intentionally contributes to it is guilty of infringement as well. Finally, anyone who induces any action that infringes upon a current patent is guilty.

If a company makes a new product that infringes upon an existing and in force patent, it is infringing upon that patent and can be sued. If a company creates a product that relies on a patented process without the permission of the person owning that patent, they are guilty and can be sued. In addition, the law can be interpreted to extend to any store or company that sells a product or process that is protected by a patent, as well as anyone who purchases and uses that product or process.

In other words, if AB Electronic Games were to create a new game system that used as part of its design the joystick that is patented by YZ Game Company, AB Electronic Games may be infringing upon YZ’s patent and can be sued for that infringement.

Likewise, if YZ Game Company had patented a process that only allowed its games to be played on a game system manufactured by them, and AB Company came along and made an adapter using that process so that YZ’s games could be played on any game system, they could be opening themselves to a patent infringement lawsuit. In addition, YZ Game Company would be within its rights to sue every retailer that sold AB’s games or adapter, and every single person that used one of AB’s games or adapters.

In reality, however, it’s seldom practical to sue individuals who buy or use a product that infringes upon another’s patent. Most patent owners will choose to sue the manufacturing company, the inventor or the importer of the product. Some judges will disallow patent infringement lawsuits against certain classes of defendants for various reasons. In many cases, the laws which cover these lawsuits and their interpretation vary from jurisdiction to jurisdiction. Determining who can and should be sued, and on what grounds they can be sued is not always easy for a layman. Even lawyers who don’t specialize in patent infringement law may find it difficult to determine who can actually be sued in a particular instance.

Experienced patent infringement lawyers understand the current case law and how the U.S. Patent laws have been applied in patent infringement cases throughout the years. This is more true today than ever before, with the number of patent infringement lawsuits increasing with each passing year. Decisions that have been handed down in cases over the past five to ten years have opened the existing patent laws to new interpretations that can be utilized in a lawsuit by experts in the field.

If you are considering a patent infringement lawsuit or believe that your rights as a patent holder are being infringed upon, it’s important to consult with a law firm of patent infringement lawyers who are familiar enough with the current case law and interpretations to evaluate your case on its merits. A good attorney can not only help you determine who can be sued for infringing upon your patent, but may see grounds for a suit that you or a less experienced lawyer might not recognize.

This is a matter that the courts take very seriously. If your invention is being used in whole or in part by someone else who does not have your permission, your rights as a patent holder are being infringed upon. When you bring a successful suit against the infringer, you may be able to:

- Stop future infringements when a judge orders an injunction against further use, sale or offer of the infringing invention or product

- Recover the cost, which may include projected future profits lost due to the infringement

- Recover certain litigation costs

- Recover attorney’s fees

- Be awarded punitive damages that may amount to triple the judgment for actual damages

A law firm that specializes in this kind of litigation is the best judge of whether you have a good case of patent infringement. If you believe that your patent rights are being infringed upon, contact a patent infringement lawyer for a consultation to evaluate your case for a lawsuit.

By: Nick Johnson

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