BY Susan M. Brazas for Lawyers.com
Nearly everyone has heard of someone with an invention to make life easier, more fun or more interesting. Many patent attorneys receive calls weekly from people with creative ideas, wondering how they can get their ideas patented so no one else can use them. But what about patent infringement? What is it, and what happens to the infringer?
Suits for Patent Infringement Are Costly
Many patent lawsuits end with enormous verdicts and legal fees. There are many factors why this occurs, including that big dollars are at stake. Extensive work is involved on both sides of a case. Also, experts are usually hired who can understand and explain the details of the technology in issue.
When one person or company sues another for infringing their patent, they're claiming that someone else has used the idea or process they've protected without their permission. The final decision is left up to the federal court judge. He or she combs through documents and testimony, and then weighs the facts, the law and the science to reach a decision.
Kodak recently filed patent infringement suits against Apple and Research in Motion (RIM), claiming that the companies infringed their patented digital imaging technology when developing the iPhone and the BlackBerry.
Kodak's Chief IP Officer said Kodak licensed this technology to about 30 companies who pay royalties. But those two companies are not among this group. The IP officer says that "a basic issue of fairness" is at the heart of the lawsuits.
What Are NPEs?
Many of the suits for patent infringement are filed by NPEs, or non-practicing entities. These are companies, which can't manufacture the patented process or product themselves.
One such well-known NPE is a company called Acacia. It files several patent suits each year, often on behalf of small companies or individuals who don't have the resources to pursue a patent suit. Acacia works out a license or purchase agreement from the company or individual who owns patent. Then they sue those companies or individuals who it claims have misused, infringed or stolen the patented idea or process.
In the 18 years Acacia has existed, it has filed 337 patent-related suits. Acacia says about 95 percent of the suits it files are settled, rather than going to a court trial. That's slightly higher than the percentage of civil cases that settle in federal and state courts.
Some people express great dislike for NPEs, referring to them as "patent trolls." Court awards to NPEs have ranged from $2.2 million to $10.6 million according to a newly-released report from PriceWaterhouseCoopers which studied 1400 patent cases.
Patent Law Is a Specialized Area
Not just anyone can enter the world of patent law. The "Patent Bar" consists of a very specialized group of lawyers who have a bachelor's degree in engineering or in science and a law degree, and have passed the rigorous Patent Bar Examination.
Within that select group, patent lawyers specialize within a given area. Some are experts at information technology and computers, others in electrical or electronic engineering. Some specialize in helping prepare lengthy and complex patent applications, while others are in the area of patent litigation, where they represent those who are suing for or defending, patent infringement cases.
Questions for Your Attorney
- I created and patented software, and I think someone is using my patented technology. Can I sue them?
- Do I need permission to use someone else's patented technology?
- What does it mean when a product ad states there's a "patent pending"? What happens when there are patent applications for similar things?