Violation of a Patent

by Thomas King
There are three types of patents: utility, design and plant.

There are three types of patents: utility, design and plant.

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A patent is a right granted by the United States government which allows an inventor to prevent others from making, using or selling her invention within the United States. Thus, violation of a patent, commonly called patent infringement, includes the unauthorized making, using or selling of any patented invention within the United States. Also included in patent infringement is the unauthorized importation of the invention into the United States.

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Patent Marking

Patentees, owners of a patent, are required to mark patented articles with the word "patent" followed by the number of the patent. This serves to notify potential users that the article is protected. In most cases, failure to utilize such a mark prevents the patentee from recovering damages in the event the patent is infringed. While many individuals mark articles with the term "patent pending" to indicate that an article is awaiting a patent, this marking has no legal effect. A patent right cannot be infringed until the patent has actually been granted by the U.S. Patent and Trademark Office.

Legal Recourse

In the event patent rights are infringed, the patentee may sue for relief in federal court. The burden will be on the patentee to prove that patent infringement has occurred. Generally, the defendant in a patent infringement case argues the patent is invalid or he has not committed infringement. If the patentee is unsatisfied with the judgment in federal court, she may make an appeal to the Court of Appeals for the Federal Circuit. Thereafter, the United States Supreme Court may hear the case, which it has done several times, perhaps most notably in Asgrow Seed Co. v. Winterboer.


In general, there are two remedies available to patentees who have had their patent rights infringed. These include injunctive relief and damages. Injunctive relief, sometimes referred to as an equitable remedy, is a court-ordered requirement to act or prohibition against an act. Thus, an injunction in a patent infringement case may prevent the continuation of the infringement. Pecuniary damages, or money damages, may also be awarded. For example, a patentee may be awarded lost profits due to the infringement. In some instances, the court may award triple damages, known as treble damages. The patentee may have a remedy for pecuniary damages if the U.S. government infringes on a patent. The U.S. government is permitted to use any patent without permission of the patentee and thus injunctive relief is not available. However, the patentee is entitled to compensation for the government's use.

Protecting Your Patent

Keep in mind that the U.S. Patent and Trademark Office is not responsible for policing your patent. Thus, the task is up to you. Many individuals and corporations that hold rights to a lot of patents keep a patent attorney on retainer to fight infringements as they occur. Keep in mind also that a patent may be licensed. Thus, cautious licensees often require the licensor to include a warranty against patent and copyright infringement claims arising from use of the licensed patent.