infringement (of utility patent)

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A utility patent is one of the three types of patents that can be applied in the USPTO (the United States Patent and Trademark Office). It is the most common type of patent. A utility patent can be a useful process, a machine, an article of manufacture, or a composition of matter. An infringement of utility patent usually refers to an unauthorized use all of the elements of an independent claim of the utility patent.

There are many types of patent infringements, and the most common one is selling a patented product without authorization (see 35 U.S. Code § 271 for more details). For example, if a company sells a product on Amazon without authorization from the patent owner, the company may be an infringer.

To decide whether a use of the utility patent is an infringement, a court will first decide if the utility patent is valid. Even if the patent was approved by USPTO, it can still be invalid. The court in Elmer v. ICC Fabricating, Inc., 67 F.3d 1571 (Fed. Cir. 1995) states that a utility patent is invalid “if the subject matter of the claim was ‘in public use…more than one year prior to the date of the application for patent in the United States’.” if the utility patent is found valid, the court will then decide the scope and meaning of the utility patent, and compare the alleged infringement of the patent to the patent itself.

If the court decides that an infringement does exist, the patent holder can get damages from the infringer, including lost profits, and in some cases attorney fees (35 U.S. Code § 285) (see 35 U.S. Code CHAPTER 29 for more details).

[Last updated in June of 2020 by the Wex Definitions Team]