Problems With Patent Infringement - Your Ip Lawyers Will Help
If you have spent money protecting industrial processes or component designs owned
by your company you gain the right to sue others when they use these without your permission. The EPO (European Patents Office) offers businesses a service by which they can search through all the registered patents to ensure what they are about to use is not already owned by another. Due to this service, there is no excuse for patent infringement.
As mentioned above if someone uses the patented object without your permission, you have the right to 'defend your patent'. The following are steps you can take in order to do this:
Step 1 - Sending a letter
It is always best commercial practice to inform the individual or corporation by letter that they are currently using your patented object without permission. The letter should request politely that they stop doing so immediately.
If you are not dealing with a business contact or customer, it can be beneficial to have this letter come from Intellectual Property or IP Lawyers. Although you are not threatening legal action a letter from your lawyers shows that you have the facility to do so.
Step 2 - Seek an Opinion
If the other side return your letter with a counter-claim i.e. they believe that you have not patented the object, or the object is in fact patented by them, an opinion on the dispute can be sought from the Intellectual Property Office. This opinion is independent and although does not carry legal ground, is a very good indication to who is right in the dispute. The service normally costs around 200 and it can be up to 3 months before this is returned.
Once this comes back, it should be forwarded across to the other side as evidence of your case. However, if the infringement is causing your company considerable losses then it may not be suitable to wait for this period of time.
Step 2 - Negotiations
Seek the services of an experienced dispute resolution solicitor and/or specialist IP Lawyers in order to begin negotiating with the other side. Taking patent claims to court can be extremely costly and it is always sensible to try and reach an amicable agreement before embarking upon that stage.
Your lawyers will inform the other side of your legal rights and rebuke any counter-claims they may have made against you. The next step will be to persuade (via negotiations) the infringer to pay you voluntary compensation. Discussions take place between both side's lawyers or more formally during mediation, if this does not work - arbbitration (which is normally a more constly option due to having to use a professionally trained arbitrator).
Step 3 - Legal Action
If negotiations are unsuccessful then a civil action can be brought against the infringer. If your claim is quite straight forward and there is an obvious infringement then your solicitor will probably apply for an interim injunction, which then legally stops the other side from using the patented object up until trial.
Patent cases are heard in the Patents County Court or the Patents Court (a division of the High Court). If you are successful in your claim then the court will award you damages in light of any losses you have suffered. If you have not actually suffered loss, the court may still be inclined to give you nominal damages or a percentage of the profits gained by the other side in using your patented object.
Your IP Lawyers will use their expertise in court to argue that your opposition should also be responsible for paying your legal fees. Nonetheless, as this type of legal action is so expensive, it may be likely that you still have to pay some costs out of your damages awarded.
Patent cases can be extremely complex and therefore litigation is not always the best option, the earlier you seek the services of an IP lawyer the more chances of solving your case via negotiation. An experience solicitor can also assist you in drawing up any relevant contracts and/or licensing agreements with the other side if you agree for them to use the patented object at a cost.
by: Tim Bishop
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