Proving that patent infringement has occurred is not quite as cut and dry as it should seem. Lawyers are of course well versed in patent infringement law, but the average individual will have a very difficult time deciphering laws on their own.
A lawyer has much more investigative ability than a business or an individual. Through the use of the court system, a lawyer has the ability to request the violating company’s records as well as subpoena information related to a pending case. Businesses and individuals are not capable of gaining access to this vital information.
Lawyers are looking for research documentation, or any documentation that points to any foreseen knowledge that there was even the possibility of a patent infraction. Patent infringement is a serious offense and most companies are very careful with their documentation if they believe they are even the slightest bit close to violating a patent law. However, a high quality lawyer is typically able to pull out one or two documents that point to evidence of knowledge of impending patent infringement.
While lawyers are not miracle workers or mind readers, they are quiet capable of proving, with the help of the governmental patent agencies, that the patent was already in existence and that a simple search of patent records would have enable to the company or individual in question to perform an adequate patent search which would have in effect, thwarted any impending patent infringement.
In most cases, proving it could have been avoided simply by performing a reasonable patent search, lawyers can realistically prove that the company did not perform its due diligence in an attempt to avoid it in the first place.
Proving induced patent infringement can be a little more difficult than proving direct patent infringement. Induced patent infringement, just like direct patent infringement, can be a result of either accidental or intentional actions.
Induced patent infringement can involve third parties, packaging issues, or even selling a product under the guise of a function that can only be reasonably utilized under a protected patent. A skilled lawyer can prove that the induced patent infringement either could have been prevented or should have been preventable through either research in the production of the product or through marketing research.
Patent infringement is a larger problem than many companies, businesses, and organizations realize. Lawyers try numerous cases per year. Considering the population of lawyers, this totals into the thousands of cases annually. It is not always obvious, as in indirect patent infringement.
When cases of it do occur, proof tends to lie within the accused company whether there was previous knowledge of the patent prior to release of the product or invention. Proving intent can be a very difficult procedure unless the company documented that they were predisposed to the information and went ahead with the project despite the likelihood of a patent infringement. Lawyers state that they typically do not struggle to prove the infringement, but often have great difficulty proving intent or prior knowledge.
Because there are various avenues which a company can be the victim of a patent infringement and because these intentions can be difficult to prove, the absolute first step in protecting patent rights is calling a high quality lawyer. This step allows for legal proceedings to begin and allows for evidence and proof to be sought. Without retaining a lawyer, the chances of ever recouping lost profits is beyond minimal.
It is a silent crime, one which in the technology of yesterday allowed for many companies to get away with until post production and profit loss. Fortunately today many companies are able to head off profit loss when patent infringement is caught before production and sales. Lawyers are being able to prove it that are only in the design and modeling stages in a few cases.
If you believe that you, your company, or your business is in jeopardy of being the victim of paten infringement, it is wise to call a quality lawyer immediately. Waiting can cost you, and often cost you more than you can really afford to lose. Playing it safe even if your suspicions are just that, don‘t hesitate to contact a competent lawyer. Patent infringement is too costly to wait.
About the Author
Nick Johnson, lead counsel and founding partner of Johnson Law Group, represents individuals or companies with cases involving patent infringement. Find more information at: http://www.toppatentinfringementlawyers.com or call 1-888-311-5522
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