Key Takeaways

  • Patent enforcement refers to legal actions taken by patent holders to stop infringement and secure remedies such as damages or injunctions.
  • Enforcement rights only begin once a patent is granted; “patent pending” status offers some protections but not the right to sue.
  • Successful enforcement requires proving infringement, but defendants may challenge validity, patent eligibility, or argue non-infringement.
  • Courts may award enhanced damages in cases of willful infringement, making proactive compliance and notice letters important.
  • Pre-filing investigations, strategic timing, and jurisdictional considerations are critical to avoid weakening an enforcement case.
  • Litigation is complex and resource-intensive, often involving fact discovery, expert testimony, and potential appeals.

When does the right to enforce patent protection begin? This question can be hard to answer, as your ability to enforce your patent can depend on several factors, including how far along you are in the patent application process. Learning a little more about patents should help you know when you're able to start enforcing your rights.

What is a Patent?

Patents are a way for inventors to gain protection for their inventions, including the ability to prevent others from using, distributing, or manufacturing their creations. You should be aware, however, that a patent only gives you the right to exclude. This means that you yourself may not even have the right to use your invention in some circumstances.

Therefore, patent rights are a form of negative rights. You must provide your consent before another person can use your invention in any way. If someone infringes on your patent, you have the ability to enforce your rights through a lawsuit. Should you win your lawsuit, you may be able to receive damages, and the court may also issue an injunction that prevents the other person from continuing to use your invention.

What is Patent Infringement?

Patent infringement occurs when someone uses a patented invention without the permission of the patent holder. During a patent infringement case, you will need to prove to the court that the created product is based on the claims that you included in your patent. You can also show that the product is the equivalent to your invention.

There are several different types of patents available, which means there are also multiple forms of patent infringement. If you are trying to decide if infringement has occurred, you need to check the claims of your patent and then compare them to the invention that you believe is infringing on your patent. When you find that the elements of the invention in question match the claims you included in your patent, an infringement exists.

What is Patent Enforcement?

When one files a lawsuit against another for infringement of a patent, this is known as patent enforcement.

A patent enforcement lawsuit can produce several results:

  • The plaintiff wins and receives monetary damages.
  • The plaintiff wins and the court issues an injunction.
  • The court decides that the patent is invalid and that no infringement occurred.

One of the ways that a defendant in a patent enforcement lawsuit could show a patent was invalid is by proving that it had expired. Patent enforcement can be very difficult and usually requires a great deal of research.

Challenges in Patent Enforcement

Patent enforcement is not always straightforward. Courts have tightened standards for proving infringement, and new review processes such as inter partes review (IPR) allow defendants to challenge patent validity before the Patent Trial and Appeal Board (PTAB). In addition, questions of patent eligibility under 35 U.S.C. § 101 have created uncertainty in some industries, making enforcement outcomes less predictable.Another challenge is demonstrating willful infringement. If a court finds that an infringer acted intentionally or with reckless disregard, damages can be enhanced up to three times. This makes enforcement strategies, such as providing notice letters or documenting competitor behavior, especially important.

When Can You Enforce a Patent

Patent enforcement can only occur when you are the owner of a valid patent. The process of obtaining a valid patent requires several steps. During each step of the patenting process, you will have a certain amount of legal rights, although you may not yet have the ability to enforce your patent by filing a lawsuit.

Conception is the first step of the patent process. This is when you are coming up with your idea or your invention. During this stage, there may not yet be any physical records of your invention, meaning it is not yet patented and is not yet enforceable.

The next step in obtaining your patent is documentation. At this point, your invention should be recorded in documents that may be signed and dated. Once documentation occurs, you will have some legal rights to your invention.

The patent-pending stage means you have filed your patent application but have not yet received approval. You may need to wait as long as a year before your application completes processing. After achieving patent pending status, you will have legal protection, including a filing date that should shield you against infringement if you receive your full patent.

Finally, when your patent application is approved and your patent is granted, you will have full protection, meaning you will be able to file lawsuits to enforce your patent. Eventually, your patent will expire, and with it, your legal protection. The length of your patent protection depends on the type of patent that you hold:

  • Design Patents: 14 years.
  • Plant Patents: 17 years.
  • Utility Patents: 20 years.

Once your patent has expired, however, you can still file an infringement lawsuit if you can prove that the violation occurred while your patent was still valid.

Patent Litigation Process Overview

Once a patent holder decides to pursue enforcement, litigation typically unfolds in several stages:

  1. Complaint and response: The patent owner files suit, and the defendant may counter with claims of invalidity or non-infringement.
  2. Discovery: Both sides exchange documents, depose witnesses, and prepare expert testimony.
  3. Claim construction (Markman hearing): The court interprets the meaning of disputed patent claims, which often shapes the outcome of the case.
  4. Trial and remedies: If infringement is proven, the court may award damages and issue injunctions.
  5. Appeals: Losing parties often appeal, potentially prolonging the dispute for years.

Many disputes settle before trial, often through licensing agreements, but settlement terms are influenced by the relative strength of each party’s litigation position.

Strategic Considerations Before Filing a Lawsuit

Even when a patent is enforceable, deciding when to file a lawsuit requires careful planning. Key factors include:

  • Strength of the patent: Conducting a validity assessment and prior art review helps determine whether the patent can withstand challenges.
  • Business objectives: Some companies pursue litigation primarily to secure licensing revenue, while others seek injunctions to protect market share.
  • Potential counterclaims: Defendants may file declaratory judgment actions or antitrust counterclaims, creating additional risks.
  • Costs and timing: Patent litigation is expensive and can take years. Filing too early without sufficient damages evidence or market impact may weaken a case.

A thorough pre-filing investigation not only bolsters credibility in court but also helps avoid sanctions for bringing weak or frivolous cases.

Frequently Asked Questions

  1. Can you sue for patent infringement with only “patent pending” status?
    No. Patent enforcement lawsuits can only be filed after a patent has been granted. “Patent pending” serves as notice but does not grant enforceable rights.
  2. What damages can be recovered in a patent enforcement lawsuit?
    Patent holders may recover lost profits, reasonable royalties, and in cases of willful infringement, up to triple damages. Courts may also grant injunctions.
  3. How long does patent litigation usually take?
    Patent cases often take 2–3 years to reach trial, and appeals can extend the process further. Many cases settle before trial.
  4. Can a defendant challenge the validity of my patent during enforcement?
    Yes. Defendants frequently file IPR petitions or raise invalidity defenses, arguing the patent should never have been issued.
  5. Is patent enforcement the same across all industries?
    No. Standards for proving infringement and damages can vary significantly, especially in fast-evolving industries like software, biotech, and telecommunications.

If you need help determining when does the right to enforce patent protection begin, you can post your legal needs on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.