Elements of Patent Infringement
Typically, a party (other than the patentee or licensee of the patentee) that manufactures, imports, uses, sells, or offers for sale patented technology without permission/license from the patentee, during the term of the patent and within the country that issued the patent, is considered to infringe the patent.
The test varies from country to country, but in general it requires that the infringing party's product (or method, service, and so on) falls within one or more of the claims of the patent. The process employed involves "reading" a claim onto the technology of interest. If all of the claim's elements are found in the technology, the claim is said to "read on" the technology; if a single element from the claim is missing from the technology, the claim does not literally read on the technology and the technology does not infringe the patent with respect to that claim.
In response to allegations of infringement, an accused infringing party will generally assert one or more of the following:
- it was not practicing the patented invention;
- it was not performing any infringing act in the territory covered by the patent;
- the patent has expired;
- the patent (or the particular claim(s) alleged to be infringed) is invalid, because the invention in question does not meet patentability or includes a formal defect, rendering the patent invalid or unenforceable;
- it has obtained a license under the patent;
- the patent holder is infringing patent rights belonging to the accused infringing party, and the party may resolve the dispute in settlement or cross-licensing.
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