Intellectual property infringement occurs when another party violates the rights of an intellectual property (IP) owner in some fashion.

IP infringement stems from the violation of a protected intellectual right. IP rights are rights bestowed to a creator or inventor for works of originality. Such an infringement pertains to the following:

  • Trademarks
  • Patents
  • Copyrights

Trademarks, copyrights, and patents allow creators or inventors the right to sue people who infringe on their IP rights, allowing the owner to stop the infringement and collect any damages from the violation. In essence, IP infringements entail the breach of any IP rights. The violation of IP rights also covers the misappropriation of trade secrets and may be a violation of criminal or civil law in certain cases. Counterfeited trade on trademarked and counterfeit works amounted to $600 billion internationally, as of 2011. Further, such violations comprised anywhere from five to seven percent of international trade.

Infringement Occurrences

IP rights get infringed upon when protected works are copied, used, or exploited without permission from the IP owner. Such examples include piracy or outright counterfeiting. Counterfeiting occurs when violators imitate goods that are inferior to an original product, with an intent to distribute for commercial gain. The sole purpose of counterfeiting is to ride on the coat-tails of the original product.

Piracy happens with regard to the unauthorized replication or distribution of products or materials safeguarded under IP laws. Without a patent safeguard, inventors do not have legal recourse if someone sells or uses the invention without permission under U.S. laws.

Without trademark protection, the user cannot prevent another with the same or identical trademark from using it commercially. Without the protection of copyrights, for instance, a literary author prevent other parties from using that work.

Patent Infringements

A patent infringement entails the selling or using of an invention that’s patented without authorization from the inventor. Permission is usually granted in license form. In many nations, the word “use” must be commercial in nature (or to have a commercial aim) in order to qualify as a patent infringement. The scale of an invention that’s patented is determined by the claims of the patent, which must be filed via with United States Patent and Trademark Office (USPTO).

Patents remain territorial, and infringements only occur in a nation where the patent takes effect. For instance, patents bestowed in the United States restrict anyone within the nation from manufacturing, importing, selling, or importing an item that’s patented, while the individuals in other nations may be free to use the patented invention in another country.

If you sell, promote, or create a product that’s unique or new, you should do a patent search to ensure that no other patents have registered claims that would apply to your product or invention. This is vital if you intend to create an app or software and intend to commercialize it. You should be careful in the tech field if you are a:

  • Web developer
  • Software developer
  • Consultant
  • Scientist
  • Engineer
  • Architect
  • Specialist building a product on behalf of someone else

Service Agreements

Moreover, ensure that you avoid signing a service agreement that says deliverables would be free from infringing the rights of third parties, especially in regards to patents. With that, you may sign the agreement if a customer or client is willing to issue the appropriate patent search before giving you such specifications.

Also, you should never agree to a contract containing an indemnity clause that compels you to hold your client or customer harmless for third-party actions regarding a dispute arising from patent infringements.

IP Legal Search

  • Clearance Opinion: A clearance search is usually performed by a professional patent finder under the direction of a patent lawyer. When the search is finished, the lawyer will then commence a clearance opinion, which is a legal opinion regarding a process or product that violates the claims of one or more pending patents or issued applications.
  • Enforceability & Validity Opinions: An enforceability opinion or validity entails a legal opinion that analyzes issued patents and gives opinions on how courts may rule based on its enforceability or validity.

The average cost for a validity option is over $15,000, with a separate infringement analysis amounting to $13,000.

If you have more questions on intellectual property infringement, post your legal need to our UpCounsel marketplace. UpCounsel’s attorneys will give you more information on your rights as an IP owner and what you can do if someone violates your patent or any other IP. Moreover, they will defend you vigorously in court if you someone illegally violates your protected property.