Infringement is a violation (encroachment or trespass) of a right or privilege (law, regulation, contract). In the world of intellectual property (patents, trademarks, and copyrights) infringement of rights is making, using, and selling a protected invention or registered mark or copyright without permission. This article is about what does infringement mean?

Even when it is unintentional, the infringing party is responsible and can be held to pay damages. Infringing can even happen when an inventor believes she is the first to invent and commences making, using, or selling a product based on that invention. 

More frequently intellectual property infringement is using a registered trademark or copyright without the owner’s permission.  Even this may not be intentional. Using a mark which is identical to or confusingly similar to a mark owned by someone else for product or services that are the same or similar is infringement. Consider an Infringement Study an your products if you want to be sure.

Patent Infringement – What is Infringing on a Patent?

Patent infringement is when someone makes, uses, or sells a protected invention. Patents are issued for new utility, plant, and design (industrial design) inventions. Each country issues its own patents, and enforcement is only possible in a country where a patent is issued. The scope or range of products covered by a patent are determined by the claims. If no patent is issued in your country, enforcement in your country is not an option. Importantly, while use in commerce is a requirement for infringement in many countries, selling is usually considered commerce, so it isn’t difficult to find commercial use. 

Patent infringement includes patents for new products and processes as well as design or industrial design patents. Thus, even when the patent is a design patent that protects only the ornamental appearance form of an invention, there is infringement when copied and used without permission. 

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Patent Infringement Law

In the United States, the law regarding what is infringement for patents is found in United States Code Title 35 – Patents, Chapter 28 – Infringement of Patents. Remedies for infringement and information about validity, defenses, injunctions, damages, attorney fees, and what to do when the patent claims are not valid is covered in Chapter 29 – Remedies for Infringement of Patent and Other Actions. Read more about patent law. Read about the other things that can happen with a patent in our article what happens after you get a patent. Read about what is patent litigation.

Patent Infringement can be direct, indirect, or literal. There is no such thing as percentage infringement. The percentage of difference between a product and a patent protected claim does not determine infringement. Patent infringement is found either literally as direct or indirect infringement, or under the legal doctrine of equivalents. Under the doctrine of equivalents, infringement can be found where the differences are “insubstantially different.” In other words, if the product only has features or elements that are merely different or missing in essentially the same product, that product infringes. 

Direct infringement of a patent

A product or process directly infringes when it incorporates all the elements of a protected claim in an issued patent. Patent claims have parts or elements that together comprise a product or process. If your product includes all of the elements of a patented claim it infringes directly. If a product or process does the same function as a patent protected product or process or matches the originals description it directly infringes.

Indirect infringement of a patent

There are two forms of indirect patent infringement contributory and induced. Contributory infringement is knowingly buying or importing materials that are only used in making, selling, or using a patented product or process. Induced infringement is encouraging another to infringe, such as selling a product or instructions that when followed cause the user to directly infringe.

  • Contributory infringement: offering to sell or import a component of a patent protected item knowingly for use in practicing the patented claims.
  • Induced infringement: offering to help another to directly infringe a patent protected product or process. 

Literal Infringement of patent

Literal infringement, or willful infringement of a patent is where there is a direct correspondence between the elements of a protected patent and the making, using, and selling of a product or process. There is literal infringement where there is direct copying of the elements of a protected item, or where the infringing item is determined to be equivalent under the doctrine of equivalents.

How to Avoid Infringing on a Patented Product

There are at least three ways to avoid infringing on a patented product. You can: 1) not copy, 2) get a license, or 3) invent your own. It is important to note that businesses commonly seek freedom to operate studies to ensure they are not infringing. The bigger the business the more of what they do to conduct the business from business methods to selling products is examined for prior art so they can be sure they are not infringing on the protected intellectual property of others.

  • The most certain way to avoid infringing is to not use someone else’s patented claims without permission. You can check to be sure you are not with a freedom to operate study. Read more about the freedom to operate study
  • A second option to avoid infringing on a patent is to seek a licensing arrangement with the owner of the patent. You get permission to make the product in exchange for giving the owner a percentage of the profits derived or a price per use. It extends the protection of the patent to your product. Read more about licensing a patent in our article about licensing agreement types. Read about licensing agreement advantages and disadvantages.
  • A third option for not infringing is invent your own better product or process and apply for a patent. You do not need a prototype to apply for a patent. If the invention can be reduced to practice you can apply for a patent while you are building a prototype or developing a minimally viable product. Read more about reduction to practice.

Trademark Infringement

What is Trademark Infringement?

Trademark infringement is when someone uses the trade or service mark of someone else without legal permission. The marks do not need to be identical. A trademark or service mark may infringe when it is identical or when it is confusingly similar to the registered mark of someone else. Making, selling, and possibly even using goods and services that are identical or similar to those under a trademark owned by someone else is infringing. 

Trademark dilution is using a protected mark for different products and services. Making, selling, and possibly even using goods and services that are not identical or similar to those under a trademark owned by someone else is still potentially infringing. Using a mark for dissimilar services is known as trademark dilution. If a mark is well known (as defined under the Paris Convention) even dissimilar products and services may be found to infringe. 

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How to Avoid Infringing on a Trademark

The most certain way to avoid trademark and service mark infringement is to not use someone else’s protected trademark or service mark without permission. You can and should search the USPTO’s TESS Database for your trademarks and logos. You should also search your state’s business name directory. If a mark is not being used for a class of goods or services, it may be possible to register the mark for the new class of goods or services. 

An alternate way to avoid infringing a trademark is to arrange for a legal license for its use from the owner of the trademark. There are several means to accomplish this. We recommend consulting with an attorney who practices in this area. 

Trademarks can be maintained indefinitely, so care should always be exercised when selecting a new logo, phrase, slogan, or mark for use. Create your own trademark and register it following our 4 steps to trademark.

Cybersquatting – Domain Name Infringement

Trademark infringement includes a special kind of infringement related to internet domain names called cybersquatting. Cybersquatting, domain squatting, using the “.net” of a “.com” domain that belongs to someone else is infringing where there is registering, trafficking in, or using an internet domain name with the intent to profit from the goodwill of a trademark owned by someone else. For example, a cybersquatter will buy an internet domain name targeted at a protected mark, and then offer to sell it to the company or person who owns the mark at an artificially inflated price.

Copyright infringement is when the protected literary, artistic, educational, or musical work of another is used without permission. Copyright infringement is also known as “piracy.” Once a person makes a work tangible (websites and blogs count), it is protected by copyright. Works can also be expressly registered. You can register a copyright using the Registration Portal at U.S. Copyright Office

A copyright generally includes the right to reproduce, distribute, display or perform the protected work, and/or to make derivative works. Thus, copyright infringement includes reproduction, distribution, display, performance, or derivation of additional works based on copyright protected works. There is some good basic information on the details of copyright infringement on Wikipedia

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Fair Use – What does infringement mean

When it is “Fair Use”it is not infringement. Teachers and journalists can likely use your copyrighted work without infringing. Copyright law (internationally to include the Berne Convention) does not extend to some special kinds of uses, called “fair use.” Fair use includes quotation by journalists and quotation and display by teachers in educating students and/or other teachers. 

The courts look at each case individually, but, fair use is generally limited to:

  • Nonprofit educational use – teachers copying parts of protected works as an element or part of a lesson. 
  • Research – scientists and scholars quoting parts of protected works for clarification, demonstration, and illustration. 
  • News reporting – reporters summarizing and quoting of protected works for new reports. 
  • Criticism and comments – bloggers quoting or using excerpts to comment on or critique. 
  • Parody – imitating protected works in a comedic way to make fun.

These are the things that the courts will review in order to determine fair use.

  • Whether you are creating something new or just copying.
  • Whether you give the original credit.
  • Whether you are competing with the original.
  • How much of the original are you using.
  • The quality of the material used.

The bottom line, without a license or a fair use exception you should not use the licensed and/or registered intellectual property of others.

  • The most certain way to avoid copyright infringement is to not use someone else’s protected copyright without permission. 
  • An alternate way to avoid infringing a copyright is to arrange for a legal license for use from the owner of the copyrighted work. 
  • Create your own work and register for a copyright following our 3 steps to copyright. Check out the great resources available at the U.S. Copyright Office.

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