A patent is a right awarded to a person or an organization which allows the patent holder the capacity to stop others from designing, using, or selling the innovation defined in the patent. The patent holder can choose to sell his or her patent to another person or afford others consent or authorization to use the innovation in exchange for a royalty payment. However, what happens when your patent is violated or infringed upon by another party without your consent? This constitutes patent infringement, and you can file a lawsuit with the help of a patent attorney.
Again, patent infringement arises when another party designs, uses, or trades a patented product without the authorization of the patent holder. When this occurs, the patent holder can seek the legal services of a patent attorney to file a lawsuit against the infringing party in order to stop their activities and obtain compensation for the illegal use. Given that intellectual property is administered by federal law, the infringement lawsuit against the unauthorized party should be filed at the federal district court.
Types of patent infringement
The burden of proof rests with the patent holder and their patent attorney to prove that the defendant violated the patent. The petitioner must prove violation through a preponderance of the evidence, which basically means that a greater percentage of the evidence ought to prove that the patent was indeed infringed.
Direct infringement arises when an item covered by a patent is produced, fabricated, or created without the consent of the patent holder.
Indirect infringement generally occurs when one party encourages or supports another party in violating a patent. The party that offers the support or aid to the direct infringer is referred to as an indirect infringer. There are two types of indirect copyright infringement, namely, contributory and vicarious infringement.
· Contributory infringement
Contributory Infringement entails two elements. First, knowledge of the violation activity and secondly, material contribution which may include actual assistance or support to the suspected infringement. Therefore, this violation occurs when the defendant with prior knowledge of the violation activity encourages, causes, or materially aids the violating action of another. For example, if a friend of yours has created infringing copies of a DVD, and you are fully aware that these copies are infringing but still go on to design a website for your friend to sell the DVDs, you are liable for contributory infringement.
· Vicarious infringement
This takes place when a party has a direct economic interest in the violating activities being perpetrated by another party and are in a position to control it, even if they don't directly participate in it. Take the case of a person who owns a shopping complex and a tenant at the complex who is selling copyright-violating materials. The owner of the shop is responsible for vicarious infringement given that he or she obtains a direct economic benefit and is in a position to stop the infringing party by kicking the tenant out.
The complexity of patent law implies that patent holders should seek the services of a patent attorney in filing copyright infringement lawsuits.