Enforcement of patents

How to enforce patents through civil lawsuits

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Generally speaking, Patents can only be enforced through civil lawsuits (for example, for a U.S. patent, by an action for patent breach in a United States federal court), although some countries (such as France and Austria) have criminal punishments for willful infringement. Typically, the patent owner will seek monetary compensation for past breach, and will seek a restriction stopping the defendant from engaging in future acts of breach. In order to prove breach, the patent owner must set up that the accused infringer practices all of the requirements of at least one of the claims of the patent (noting that in many authorities the scope of the patent may not be restricted to what is literally stated in the claims, for example due to the "doctrine of equivalents").

An important restriction on the ability of a patent owner to successfully assert the patent in civil litigation is the accused infringer's right to challenge the legacy of that patent. Civil courts hearing patent cases can and often do declare patents not valid. The grounds on which a patent can be found not valid are set out in the relevant patent legislation and vary between countries. Often, the bases are a subset of the requirements for patentability in the relevant country. Whilst an infringer is generally free to rely on any available ground of invalidity (such as a prior publication, for example), some countries have permissions to prevent the same validity questions being relitigated. An example is the UK Certificate of contested validity.

Rationale

There are four main acts alive in the patent system: to invent in the first place; to unveil the invention once made; to invest the sums required to experiment, produce and promote the invention; and to design around and improve upon earlier patents.

1.         Patents provide motivation for economically efficient research and development (R&D). Many large modern corporations have annual R&D budgets of hundreds of millions or even billions of dollars. Without patents, R&D spending would be much less or eliminated altogether, limiting the possibility of technological advances or breakthroughs.

2.         In accordance with the original meaning of the term "patent," patents facilitate and encourage disclosure of creations into the public domain for the common good. If inventors did not have the legal protection of patents, in many cases, they would prefer or tend to keep their inventions secret.

3.         In many industries (especially those with high fixed costs and either low insignificant costs or low reverse engineering costs — computer processors, software, and pharmaceuticals for example), once an invention exists, the cost of marketing (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. (I.e. the internal "rule of thumb" at several computer companies in the 1980s was that post-R&D costs were 7-to-1).

 

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