When accused of patent infringement, the plaintiff may not know how to fight the charges. In a lot of cases, someone starting out in a new business venture, or working on a new project, doesn’t know they are infringing on someone else’s idea. This may be because the patent isn’t valid to begin with. On the other side, those with a patent already may not realize they don’t have a current and valid patent, and may seek damages they aren’t entitled to.
Before discussing how patent invalidity can be used in an infringement case, it’s important to understand what a patent is and what it can cover.
What is a Patent?
Simply put, a patent gives a limited legal monopoly for an individual or firm to make, use and sell their own invention. Of course, not everything is patentable. An invention must be new, practical and innovative. Not every invention is immediately approved. The inventor must submit an application that includes all the details of the invention so others can advance said technology with new inventions.
Patentable items include machine apparatus or device, manufactured or fabricated items, chemical or other process to change the condition or character of an item, or composition of matter such as chemical compounds or mixtures that have properties that are different from the ingredients.
While they can have their invention protected, patent-holders are responsible for identifying, locating and suing patent violators. In the United States, a patent is granted for 17 years and are given on a “first to invent” basis.
Invalidity as a Defense
The first defense in proving invalidity is attacking the patent on a lack of novelty or nonobviousness. This can be done by showing prior art that shows the patent’s claims are obvious, or showing sales of the invention happened more than a year before the application being filed.
Patents are of issue for tech companies, whose software often is very similar to one another. In 2011, the Supreme Court refused to alter the standards of invalidating a patent when Microsoft was sued by a Canadian company over its XML feature. Microsoft had failed to provide any prior invention that may invalidate the application, known as the one-year rule. The Court held that there must be clear and convincing evidence of invalidity to protect tech company inventions.
Have you found yourself embroiled in a battle over a patent? Bochetto and Lentz has the experience to help you defend your intellectual property in a court-of-law. Contact us today!