6G Patents: China Continues Its Domination

If you enjoy always having the latest technology, then you’ll appreciate learning some data about recent patent filings. According to these data, 6G technology is on track to be rolled out in 2030.

That’s good news for many tech enthusiasts who are looking forward to sixth-generation communication networks, which are projected to be 10 times faster than fifth-generation technology.

Experts predicted that China’s development of 6G-related technologies would slow down after sanctions were leveled against Huawei Technologies in 2019 by the U.S. government. However, China seems to have simply switched gears from Huawei to universities and several state-run businesses, though Huawei continues to be a player in this arena.

A joint research project engaged in by Cyber Creative Institute and Nikkei Asia recently discovered that approximately 20,000 patent applications have been filed, each of which deals with 6G-related technologies. Subject matter in these patent applications covers artificial intelligence, base stations, quantum technology and communications. Observers expect such technology to make fully autonomous driving a reality as well as high-definition virtual reality. It also will improve Internet connections around the world, which will be especially helpful if you ever find yourself stranded in a remote desert.

According to the research project, China is leading the way in terms of the number of 6G technology patent applications filed. Typically, this is an indication of rapidly advancing technology, and with China filing the majority of the applications, this means that China will have the upper hand when it comes to setting industry standards.

The research shows that 40.3 percent of all 6G patent filings were completed by Chinese applicants. They were followed at 35.2 percent by the U.S., Japan at 9.9 percent, Europe at 8.9 percent and South Korea at 4.2 percent.

China’s 6G Patent Applications

The majority of China’s 6G patent applications are focused on mobile infrastructure technology. Once 6G is up and running, aerial coverage, which will be provided by devices like satellites, in addition to ground base stations will be necessary for providing broader radio bands. In fact, Huawei has been responsible for many of the recent patent applications, and they were known to control some 30 percent of the base stations in the world in 2020. Patent holders in China also include China Aerospace Science and Technology and State Grid Corporation of China, both of which are state-run enterprises.

Similarly, Huawei held the lion’s share of 5G patents, comprising an approximately 12 percent share. This appears to foreshadow an enormous presence in the 6G space as well.

Huawei has been defiant in the face of the sanctions placed on it by the U.S. government. They have announced that they are continuing to work on developing 6G technology. Moreover, the company published an advanced 5G white paper as recently as August 2021.

In related efforts, the University of Electronic Science and Technology of China launched a 6G satellite, the first of its kind, in November of 2020. While industry experts believed that the U.S. ban would make it harder for companies in China to continue to develop cutting-edge base stations or smartphones, but with government-led research, the country doesn’t seem to have missed a step.

In fact, China is pushing an initiative called “Made in China 2025” that places a priority on developing next-generation communications technology. Under the auspices of the initiative, financial assistance has been provided to countries that are building 5G networks in places across Africa and the Middle East.

The U.S. Next G Alliance

In the U.S., companies in the Internet and smartphone spaces are focusing on software and terminals. Intel and Qualcomm, for example, have added to their patent portfolios with patents that are directed toward chips that are used for IT equipment and smartphones.

The Next G Alliance initiative in the U.S. also is working toward the coming of the 6G era. Apple and Google are involved in the alliance along with numerous other concerns. Doing its part, the U.S. government is allowing the alliance complimentary access to test radio waves. Experts expect that 6G will allow the integration of communications with AI, augmented reality and virtual reality.

6G Developments in Japan

The Nippon Telegraph & Telephone company holds a number of patents in the area of mobile infrastructure networks and optical communications. This includes technology that is aimed at lessening data delays and congestion.

On the Horizon

A United Nations body called the International Telecommunication Union is working with various industry groups to advance 6G technology. They plan to begin setting 6G standards sometime in 2024. Given China’s many patents that are related to this technology, it is likely that they will have a strong voice in the rule-making process.

Although Washington continues to attempt to slow development of mobile communications products in China, a senior official of the International Telecommunication Union remarks that it likely will be impossible to exclude China from upcoming 6G technology discussions.

Contact Williams IP Law for More

Whether you are an inventor working in the 6G arena or are developing something entirely different, you need an experienced patent attorney to help you obtain the necessary patent protection. Schedule your consultation with Williams IP Law today.

5 Signs your Patent Attorney Is Terrible

Inventors come to patent attorneys with big dreams. However, not all patent attorneys share those dreams.

The inventor is certain that his creation will become an in-demand product. It might even revolutionize its industry.

The patent attorney may have a different view. Perhaps he sees that the market for the invention will be extremely limited or, based on his experience, he may believe that only a very limited scope of patent protection may be available for the invention.

A reputable patent attorney will lay it all out for the inventor. If the lawyer thinks that it will be incredibly difficult to obtain any patent protection or that the protection will be so narrow in scope as to not have value, he will provide his professional opinion to the inventor. The inventor then has the option to decide to proceed with a patent application or not.

Less-reputable patent lawyers may be less forthright with their professional opinions. After all, they need to keep the lights on, so they might tell every inventor they meet that their idea is fantastic and clearly patentable.

Unfortunately, inventors usually don’t have enough experience to tell if their attorney is being honest or not. Broadly speaking, a good patent attorney will describe in detail how demanding and difficult patent prosecution is. Even if a patent is obtained, it can be difficult to commercialize it.

Of course, it also is critical to have a patent attorney working with you throughout the process, but how can you tell if your lawyer is only lining his pockets or has your best interests in mind?

Here are a few signs to be on the lookout for.

1. They Overlook Your Invention’s Marketability

Did you know that the U.S. Patent and Trademark Office is part of the Department of Commerce? This suggests an expectation that patented technology will become a marketable product.

Accordingly, most experienced and reputable patent attorneys will ask an inventor questions about how they plan to manufacture and market their products. The question may be as simple as: “What do you want to get out of this?”

The inventor may answer that they want a patent, but it’s worth remembering that a patent and a business plan are two different things. A good intellectual property lawyer will encourage the inventor to look for manufacturing and marketing opportunities throughout patent prosecution.

By contrast, a practitioner who isn’t interested in the end result probably won’t mention any steps beyond getting a patent.

2. They Skip the Patent Search

Ultimately, it’s the inventor who decides whether or not a search for prior art is conducted before a patent application is filed. However, it’s the responsibility of a good lawyer to encourage the client to have a patent search performed.

Prior art is any patent or other publication that may disclose the same, or a similar, technology as is presented in the inventor’s disclosure. If the technology has already been patented, then there is no incentive for the inventor to proceed with trying to obtain a patent.

If a search is performed, the attorney is required to report any prior art they found to the U.S. Patent and Trademark Office. The patent office examiner who reviews the application may use this prior art against the inventor’s disclosure, arguing that their invention is not new.

However, this is simply a part of the patent prosecution process. With the prior art references uncovered in the search in mind, the attorney can craft a patent application that does not infringe on the prior art. The examiner may argue otherwise, but the lawyer can make clarifying amendments and present arguments against the examiner’s opinions.

3. They Hide the Total Cost

Obtaining a patent is expensive. Not only are there attorney’s fees to pay for drafting the application but also there are official filing fees that are charged by the U.S. Patent and Trademark Office.

However, there’s still more. The patent examiner will almost certainly object to the application, sometimes more than once. The attorney must respond to each objection, and this adds expenses to the cost of obtaining a patent. Next, an issue fee must be paid, and an issued patent is subject to the payment of maintenance fees about every four years.

A non-provisional patent application may cost anywhere between $20,000 to $30,000, and the price may vary depending upon the length and complexity of the invention disclosure.

4. They Don’t Talk About How Broad the Patent’s Coverage May Be

The claims of the patent are the specific embodiment that is protected. Will the inventor be able to get claims that are broad enough to offer any real coverage? Or, will the protection be so narrow as to be worthless? A good attorney will be up front about how broad or narrow the available protection might be.

5. They Avoid Provisional Patent Applications

Provisional patent applications are not examined, and they never issue as patents. These applications are pending for one year. In this time, the inventor can make refinements to their invention and look for manufacturing and marketing opportunities. If things go well and look promising, then it’s time to file a non-provisional patent application that will be examined and may issue as a patent. Trustworthy patent attorneys frequently recommend starting with a provisional patent application as a sensible stepping stone to obtaining a patent.

Contact Williams IP Law

If you have an invention that you believe in, then you need to work with an intellectual property attorney who you can trust. Avoid lawyers who only seem to tell you what you want to hear. Instead, go with an attorney who isn’t afraid to tell you the truth, even if it means that he may not get to draft a patent application for you. That is the practitioner who genuinely has your best interests in mind.

Dozens of inventors have put their trust in Jeff Williams to help them pursue patent protection. Schedule a free consultation to discuss your invention today.

Do Patents create Monopolies or Innovation?

Inventors and entrepreneurs usually think of their patents as being among their most important business assets. However, others think that having a patent on new technology really only creates a monopoly.

To a certain extent, both of these viewpoints are valid. After all, patents fall under federal statutes and are a regulatory right. Because it can be bought and sold, a patent seems a great deal like property. Plus, thanks to the claims contained within the patent, it is possible for the owner to prevent others from using, selling, distributing and manufacturing their invention.

Although patents may seem like property, they are not necessarily real property. Real property is easy to identify, as in the case of real estate lots. They have specific and well-defined boundaries. If the owners of two adjoining plots have a disagreement about where the boundary between their land lies, this can be settled with surveyors and land deeds.

On the other hand, it is not always so easy to determine the boundaries of a patent. A patent is defined by its claims, which can sometimes seem ambiguous. Usually, high degrees of legal and technical expertise are required to accurately discern the technology that is encompassed by the claims. Still, even experts may not agree about exactly what the patent covers. This is what can lead to patent litigation, which is a costly and time-consuming pursuit without any certain outcomes.

It seems like taking a patent owner to court would be an effective means of determining exactly what a patent covers. Unfortunately, this is rarely the case. Consider that when judges make a decision about what the claims of a patent cover, their decisions are reversed approximately 40-percent of the time. Courts also may contradict one another, making it clear that determining what a patent covers is never easy.

Do Patents Create Monopolies?

Both sides of this argument have vehement supporters, but upon mature consideration, it becomes clear that patents don’t necessarily create monopolies. This is partially true because most patents end up being worthless. Perhaps they are directed toward technology that no one really needs or are so narrow in scope that competitors can easily design around the claims.

A patent can be viewed as a sort of mini-monopoly in that the patent owner is granted the power to prevent others from using their protected technology without a license or other permission. However, it is always possible for others to negotiate with the patent owner to make use of the technology. If no agreement is reached, then the competitor may try to design around the patent or wait a few years until the patent expires, at which time new innovations may look even more attractive.

What About Pharmaceutical Patents?

All industries are different, and the pharmaceutical industry is one that is frequently cited as having monopolies over drugs that could save or change lives. Proponents of the patents-as-monopolies argument point out that other developed nations have alternative systems in place that involve negotiated prices or price controls. In these other countries, the government chooses the extent to which a pharmaceutical company can exploit its monopoly.

Accordingly, people who need prescription medications in the U.S. pay about twice as much for drugs as do the citizens of other developed nations.

Detractors point out that having a patent allows a drug company to dictate the cost of potentially life-saving medications.

It is true that a patent makes it possible for a drug company to decide how much a new medication costs, and no one is arguing that the system is perfect. Still, patents expire, at which time these medications can be marketed as far less costly generic versions.

The Myth of the Patent Monopoly

The reality is that turning a patent into cold, hard cash frequently is a difficult, if not impossible, task. Few inventors will ever be greeted by the sight of a money truck or a huge check in their mailbox. Just because a patent is issued does not mean that a market exists for the covered product.

Consider that the definition of monopoly according to Merriam-Webster includes terms such as: “exclusive ownership through legal privilege, command of supply, or concerted action” and “a commodity controlled by one party.” Other dictionary definitions speak to the ability of the monopoly holder to enable the “manipulation of prices.”

Accordingly, it is rare for any inventor or even company to hold a true monopoly simply because they hold a patent. Where there is no market, no monopoly can exist.

The fact is that most patents are never commercialized. Many that are commercialized end up losing money because not enough interested customers are found. Accordingly, patents rarely grant true monopolies.

The one-time chief judge for the United States Court of Appeal for the Federal Circuit once wrote: “Nowhere in any statute is a patent described as a monopoly. The patent right is but the right to exclude others, the very definition of ‘property.’”

Despite the rumors that occasionally may circulate, it is virtually impossible for any patent to completely lock up a particular market space. This is because truly foundational technologies that are of the utmost importance to that market are rare. Most patents instead are directed to incremental improvements or advances, which means that patent rights can be quite fragile.

Work with a Qualified Intellectual Property Attorney

At Williams IP Law, we believe in the fundamental purpose and value of the American system of patents. Accordingly, we strive to obtain meaningful, comprehensive protection in every patent application that we write. If you would like to pursue a patent that protects your innovations, schedule a consultation by calling (817) 225-6561 or requesting your FREE consultation with Jeff.

Patent Trolls Exist

If you have a patent or are considering securing patent protection for a new invention, then one of the things that you need to be aware of is patent trolls.

What is a patent troll? How can they affect you and your patent rights? Inventors with these and other questions are encouraged to schedule a consultation with a Texas patent attorney to discuss pursuing a patent and protecting their rights.

What Are Patent Trolls?

You may hear patent trolls referred to as “non-practicing entities,” or NPEs. A patent troll is an individual or entity that uses legal means to enforce patent rights against individuals or entities that they claim are infringing their patent rights. The troll is trying to collect licensing fees on the patents they own, but trolls don’t build, make or sell anything. Their practice is to obtain or buy patents and then demand that any companies using related technology pay them fees. Accordingly, you could see the work of the patent troll as a form of legalized extortion.

Because of patent troll activity, manufacturers and inventors end up wasting all sorts of time and money defending their rights in patent infringement lawsuits. Sometimes, they conclude that it just makes sense to pay licensing fees to the patent troll rather than fight them.

What Do Patent Trolls Do?

An ordinary company that holds one or more patents usually spends their time and resources manufacturing a product or offering a service. They also likely perform research, looking for new applications and new technology.

Things are really different at an NPE. They spend virtually all of their time and resources in protecting their patent portfolio. However, they are not doing so in order to prevent others from profiting from their exclusive technology that they are using on a product or service. They don’t offer products or services at all. They are only monitoring the marketplace for any technology that might infringe one of their patents. Patent applications that are published by the U.S. Patent and Trademark Office are a great place for patent trolls to look for emerging technology.

That’s because patent trolls prefer to exploit new or otherwise vulnerable companies or individuals who don’t have much in the way of resources to defend themselves. The patent troll is hoping for an early, easy victory that will give them a settlement and probably even induce other companies to do the same.

Because patent trolls do not make, sell or import anything, they are not vulnerable to a counter-assertion that they are actually infringing on the other company’s technology. Patent litigation already is costly and complicated. Without the ability to make this counter-assertion, it can be almost impossible for the patent troll’s victim to prevail.

Patent Trolls in Action

Here’s one example of how patent trolls work. A company called Lodsys is an obvious NPE. They don’t make or sell anything. However, they do engage in lawsuit after lawsuit, each one alleging patent infringement by another entity.

Lodsys appears to specialize in exploiting small app developers. They see a new app come on the market, and they quickly move in with a lawsuit, claiming that the in-app purchasing technology used in the app infringes on one or more of Lodsys’ patents. Both Apple and Google are trying to intervene in some of these lawsuits, but these will take years to resolve.

Consider also the many lawsuits that have been filed by Shipping & Transit LLC. In 2016, this company filed more patent lawsuits in the U.S. than any other. They sue 100 or more small companies each year, claiming that the technology that allows these companies to send tracking numbers to customers is exclusively owned by them via patents that they hold. Many overwhelmed small companies don’t even know how to begin protecting themselves or fighting back.

Mistakes to Avoid

Patent trolls usually make themselves known through a demand or cease-and-desist letter. The worst thing that the recipient of that letter can do is to ignore it. The better choice by far is to consult with a patent attorney so that an appropriate response can be made. Choosing not to respond only strengthens the patent troll’s case down the road.

Plus, if the patent troll receives a strongly worded, immediate response from an attorney, they are likely to just drop their demand. That’s because patent trolls prefer an easier route to collect money. If they encounter swift, decisive resistance, they’ll go looking for victims who are not defending themselves as well.

Can You Protect Yourself Against Patent Trolls?

Patent trolls always bet that their victims won’t know how to react to a demand letter. All too often, people simply throw these letters away, figuring that they are junk mail. Consulting with a Texas patent attorney is the smarter option.

If you are considering entering into a licensing agreement with any entity or individual, proceed with caution. Have a trusted intellectual property lawyer review the terms of the licensing agreement to ensure that it is fair, balanced and appropriate.

Contact the Jeff Williams Law Office today to find out more about how to protect yourself from patent trolls.

7 Common Patent Myths

Debunking Intellectual Property Myths

When you are a Texas patent attorney, certain questions seem to come up in your practice again and again. Many of these relate to popular misconceptions about the world of patents and what they actually do and don’t do.

Below are some of the most common patent myths. This is in no way a comprehensive list, as many other misunderstandings are out there. That’s just one of the reasons why it is sensible for inventors to work with an experienced patent attorney when they are ready to protect their invention. An intellectual property lawyer is there to help you sort through the myths so that you can obtain the broadest and most meaningful patent protection that is available.

Myth No. 1 – The patent office will monitor to see if anyone is infringing my patent.

Unfortunately, this just isn’t the case. The function of a department of the government like the U.S. Patent and Trademark Office is to decide whether or not a patent should be granted for a particular technology. Once a patent is issued, it is the responsibility of the owner to enforce their rights. This may mean having to bring an infringement action against an allegedly infringing party.

Myth No. 2 – Obtaining a U.S. patent gives me patent rights around the world.

If an inventor obtains a U.S. patent, then that patent is only enforceable in the U.S. If the inventor wants to have enforceable patent rights in another jurisdiction, then they must apply for a patent in each of those countries. Inventors who discover that an overseas competitor is making a knock-off version of their product can take legal action to prevent those products from being imported into the U.S., but they may not be able to stop their manufacture in the foreign country unless they have a patent there.

Myth No. 3 – A positive patentability search means that I’ll definitely get a patent.

Patent attorneys frequently encourage their clients to have a patentability search performed before they proceed with filing an application. Such a search can be an informative way to find out whether or not patent protection may be available for the invention and the probable scope of that protection.

However, patentability searches are never perfect. It’s impossible to uncover every existing prior art reference that might affect the patentability of a certain invention. That’s especially true in the case of newly filed patent applications that have not been published at the time of the search. These references won’t appear in the search because they are not publicly available. Nonetheless, by the time your invention is being reviewed by an examiner at the USPTO, he may cite that application as prior art if it has been published in the interim.

Accordingly, a patentability search can help you decide whether or not it is business reasonable to proceed with filing a patent application, but it cannot ultimately determine whether or not you will get a patent or the scope of protection that you will receive.

Myth No. 4 – I have no competitors, so I don’t need a patent.

When you have invented technology that you believe is totally novel, then it’s natural to assume that no one else is doing exactly the same thing that you are. However, what happens when your product or service hits the marketplace and becomes a huge success? How long will it be before competitors start coming out of the woodwork?

If you obtain patent protection for an item that is genuinely novel and inventive, then you have the right to prevent others from copying and profiting from your ingenuity. Without a patent, you’ll be facing an impossible battle.

Myth No. 5 – The patent’s drawings show what’s really protected by the patent.

Many people have this misconception, but unless you are aiming for a design patent, which is used to protect the overall look of a product, then it is the written claims rather than the drawings that really express what’s protected by the patent.

Drawings provide visual representations of examples of the invention. However, it is the claims that particularly point out or specify the subject matter that is covered by the patent. Writing and interpreting patent claims are two incredibly difficult tasks that are best left to a patent attorney.

Myth No. 6 – Ideas are patentable.

A great idea is just that: An idea. It is not possible to obtain patent protection for an idea or a concept. Instead, patent law requires inventors to reduce their inventions to practice or constructive reduction to practice.

Essentially, to be patentable, the technology must be built or readily could be built by someone familiar with the technology.

Myth No. 7 – I don’t copy anyone else’s products, so I can’t infringe their patents.

The claims of a patent can be incredibly subtle and nuanced. Interpreting their exact meaning is rarely straightforward. Even if you believe that your product doesn’t infringe on anyone’s patent rights, that might not necessarily be the case.

In fact, you don’t have to be aware of a patent or a patented product in order to infringe those patent rights. A cease-and-desist letter from the patent owner’s attorney may be the first inkling you have that there is an issue.

Explore Patent Rights with Williams IP Law

Are you ready to find out more about patents and how they can protect your innovations? Contact the Law Office of Jeff Williams today to schedule a free consultation.

What Is a Provisional Patent Application?

A great deal of intellectual property terminology is carelessly tossed around these days with the result that there’s confusion in the public about these terms. Consequently, people wonder about what a trademark is and how it’s different from a copyright. Or, they have serious questions about “provisional patents.”

This last question is especially troubling to legal professionals who work in the realm of intellectual property because there’s no such thing as a “provisional patent.”

However, there is a “provisional patent application,” and it can be a powerful tool for inventors in the U.S. Unlike a regular, non-provisional patent application, a provisional patent application is never examined by the U.S. Patent and Trademark Office. It is never published, and it will never mature into an actual patent.

This may make it sound as if filing a provisional patent application in the U.S. is a waste of time, but that is absolutely untrue. Some inventors have exceptionally good reasons for filing this type of application, and your patent practitioner may recommend that you do so based on the status of your invention.

Benefits of a Provisional Patent

  • A provisional patent costs significantly less than an actual patent.
  • It’s easier for someone to file a provisional patent on their own than an actual patent.
  • Inventor can use the “patent pending” on their idea for 12 months.
  • Gives the inventor time to build and test their patent and refine it.

First to File

In the U.S. and other countries, it doesn’t matter so much who is the first to invent a new product or process. Instead, the real race is to be the first person to file a patent application for the idea. This is because the law states that whoever is the first to file a patent application is the rightful owner of the invention.

If another individual files a patent application for the same invention, then they have virtually no chance of obtaining patent protection because someone else got there first. Accordingly, a provisional patent application is one tool that may be used to ensure that the applicant is the first to file the paperwork.

What Is Contained in a Provisional Patent Application?

A provisional patent application typically is shorter and less formal than a non-provisional patent application. This is because the disclosure will never be reviewed by the U.S. Patent and Trademark Office. Nonetheless, the provisional patent application must contain a clear and concise disclosure that adequately describes the subject matter of the invention.

Unlike a non-provisional patent application, a provisional patent application does not need to have claims. It may include drawings to further illustrate the subject matter of the application.

How much does a provisional patent cost?

There are some things that can change the cost but in general filing a provisional patent application with the USPTO can cost anywhere between $70-$280.

Once the provisional patent application is received and approved, the inventor is now entitled to describe the invention as patent pending throughout the 12 month allotted period.

Why File a Provisional Patent Application?

One of the main reasons to file a provisional patent application is to meet the first-to-file requirement in accordance with U.S. intellectual property law. The first person who files is far more likely to receive any available patent protection than an applicant with a later filing date.

The provisional application lasts for precisely 12 months. During this time, the applicant may make improvements or refinements to their invention. They also may work on formalizing their patent application, such as completing claims that more specifically point out the subject matter that they seek to protect.

Filing a provisional patent application also allows the inventor to say that their creation is patent pending. This can be enormously attractive when seeking funding or partners for the endeavor. Moreover, the filing of a provisional application provides an earlier effective filing date for any non-provisional or foreign application that is filed later.

Is a Provisional Application Right for You?

The best way to find out is by consulting with a qualified patent attorney. They can suggest the best method for seeking patent protection for your invention, and they may recommend performing a search to ensure that patent protection likely is available for your idea. In the long run, this saves you time and money.

Additional Things to Know

  • A provisional patent is valid for one year.
  • After the 12 month period a provisional patent application cannot be extended or renewed.
  • USPTO only reviews the provisional patent applications to make sure the meet the minimum filing requirements.
  • USPTO does not examine provisional patent applications.
  • A provisional patent cannot be file for a design.
  • Provisional patent applications are not generally published by the USPTO or publicly visible.

Closing

At the Law Office of Jeff Williams we help clients navigate through all the intricacies of intellectual property including provisional patent applications.

Patent Litigation

Patent attorneys spend most of their time working to obtain patent protection for their clients. However, their careers involve a second critical facet, that of pursuing patent litigation.

If you are concerned that someone is infringing your patent, or if someone has accused you of infringing their patent rights, contact Williams IP Law today. Otherwise, keep reading to learn more about patent litigation and why it’s important.

Defining Patent Litigation

When one party believes that another party is using their patented technology without permission, then the patent holder may choose to file a civil lawsuit against the allegedly infringing party. Typically, these legal actions are filed in a federal district court, and the plaintiff may ask for relief such as monetary damages and an injunction that prevents the infringer from using the protected technology.

The law requires that patent holders take action against an alleged infringer no more than six years after the infringing date.

The Importance of Patent Litigation

People obtain patents because they want to have the exclusive right to benefit from their hard work. Nonetheless, it is not unusual for another person or entity to infringe those rights. Thanks to patent litigation, it is possible for the wronged party to take the infringer to court.

Before beginning a lawsuit, it is critical to know that patent litigation is costly and that it can take years to settle a case. In many situations, the plaintiff is an individual or a small company while the defendant is a huge corporation with deep pockets.

Accordingly, it can be highly challenging for the plaintiff to prevail.

Penalties in Patent Litigation

When a plaintiff does win their case, then the court may impose one or more penalties on the defendant. These penalties may include actual damages, which are the profits that the patent holder lost due to the infringement, and royalties for the unauthorized use of the technology. Royalties usually are calculated based on other royalty agreements already in existence, the remaining term of the patent and the type of product that is covered by the patent.

The defendant also may be required to pay the legal costs incurred by the plaintiff. These may include attorney’s fees, litigation expenses and court filing fees.

Other possible penalties include an exclusion order through the International Trade Commission or a negotiated settlement. A negotiated settlement effectively ends the lawsuit without having to go to trial. However, negotiated settlements also may occur during the trial, giving the parties a chance to decide on a settlement that is not dictated by the judge.

In a negotiated settlement, the attorneys decide upon the appropriate monetary award for the plaintiff. This is the route that approximately 70 percent of all patent infringement lawsuits take, and these settlements are most frequently achieved within about one year of litigation. By contrast, only four percent of such lawsuits go to a judge’s decision at the end of trial.

The parties involved in a patent lawsuit alternatively may decide to settle their differences via mediation or arbitration rather than going to trial. Mediation can be an excellent means for avoiding the costs of a trial, and the process frequently leads to a settlement.

While defendants who lose a patent lawsuit frequently are ordered to pay penalties and costs, this may not be the end of the consequences. The court may decide to place a preliminary or permanent injunction on the infringer. A preliminary injunction may be issued at the start of the lawsuit if the plaintiff can demonstrate that they have a high probability of winning the case. The patent holder further must prove that they will suffer financial hardship if manufacturing and selling of the infringing product continues, and the preliminary injunction may be granted if there is no harm to the public’s interest or opinion.

Preliminary injunctions are rare because the standards for obtaining them are high.

At the end of the case, the court may grant a permanent injunction that prevents the infringer from manufacturing products with the infringing technology.

Patent Litigation Basics

Both federal and state laws cover patent litigation. Most lawsuits are concerned only with the federal patent laws. State patent laws are mainly focused on questions of patent ownership and contractual law.

Federal district courts handle patent litigation matters. Their responsibilities include interpreting the Constitution and the federal statutes, creating new laws, applying the federal rules of evidence to cases and applying the federal rules of civil procedure.

Another party that is critical to the patent process is the U.S. Patent and Trademark Office, or USPTO. This is the government department that is responsible for examining patent applications and issuing patents. Many patent litigation cases begin in an office of the USPTO known as the Patent Trial and Appeal Board. When issues cannot be resolved at this level, then the parties may decide to file a lawsuit in federal court.

Who Has the Right to Sue?

In general, the co-owners of a patent, the patent holder or an exclusive licensee of the patent have standing to sue an alleged infringer. It is not possible for non-exclusive licensees or distributors to sue for patent infringement.

Who does the patent holder sue? Usually, it is the person or entity that produces, sells, imports or uses the product that infringes the patent. The plaintiff also may choose to sue any person or entity that contributes to these activities.

Employees of a company may be personally liable for the infringement, but the company’s directors are not necessarily liable as well. A person is only considered liable if they had either indirect or direct knowledge of the patent infringement and they had willful blindness. Willful blindness refers to steps taken to avoid learning about the patent itself.

The courts have the discretion to add or remove parties that are suing or parties that are being sued.

The Types of Patent Infringement

Assessing patent infringement involves comparing the patent claims and the allegedly infringing product.

It may be discovered that literal infringement has occurred, in which case a direct relationship is established between the product and the words included in the claims of the patent.

Contributory infringement may occur when a third-party is responsible for giving the infringing party a component that has no utility beyond creating an infringing product.

When the infringer intentionally disregards someone else’s patent, then willful infringement may have taken place.

Infringement may be either direct or indirect. Direct infringement involves a competitor manufacturing a copy of another company’s product without the permission of the patent holder while indirect infringement occurs when a person or entity assists a third party to make a product that infringes a patent.

Even if the court determines that no actual infringement is occurring, it is possible that the doctrine of equivalents will come into play. This doctrine broadly states that a product may infringe a patent if it produces similar results in the same way. While the doctrine of equivalents does have limitations, it can be a powerful tool in patent litigation.

Defenses for Patent Infringement

What if you find yourself in the unenviable position of being sued for patent infringement? The best course of action is to engage the services of a skilled patent litigation attorney. This legal professional will have numerous defenses that can be used to fight the allegations.

These defenses may include proving that the patent at issue is not novel and that its claims are obvious to someone who is skilled in the art. Your attorney may uncover false information provided by the patent holder to the USPTO when they applied for the patent.

Arguments against the patent’s usefulness, a lack of description or the definiteness of the claims similarly may be available. Other defenses also may prove useful.

Get Legal Counsel First

Whether you believe that your patent is being infringed or you are being sued for patent infringement, it is critical that you do nothing before speaking with a qualified patent litigation lawyer.

At the outset of such a complicated legal matter, it is impossible to know how things might turn out in the end. The things that you say and do in the beginning of the case may make things more complicated for you down the road.

If you receive a letter from a person or company claiming that your products are infringing their patent, call an attorney before making any kind of reply.

Similarly, if you stumble across a product that you believe infringes your patent, it is always wisest to contact an intellectual property lawyer before taking any steps.

These legal professionals are adept at interpreting the claims of patents and comparing products to those claims. With their assistance, you can begin to either enforce your patent rights or refute the allegations of infringement made by a patent holder.

The critical thing is to remain calm. Then, ask for legal advice. Many of these situations can be resolved with a couple of letters and perhaps a few telephone conferences. Most of them never turn into lawsuits. Going to trial is even rarer.

When you work with competent legal counsel, you stand a much better chance of achieving the outcome you are hoping for.

Contact Williams IP Law

Jeff Williams and the staff at Williams IP Law have helped many clients deal with patent litigation. These situations can be complex and immensely challenging, but with the right experience and legal knowledge, it frequently is possible to resolve them well before a lawsuit or a trial is necessary.

Contact Jeff Williams today to schedule a consultation about any potential patent litigation matters.

What is a patent broker?

When a large company obtains a patent, they frequently have the resources that are required to put it to use. That is, they have a manufacturing division that will be building the new product. Or, perhaps the patent covers a small refinement to an existing product. In this case as well, the company will simply incorporate the new component into their assembly process.

However, it is not only multi-national conglomerates that obtain patents. Some patents are owned by individuals or a very small new business that is just getting started. What can you do with a patent when you don’t also own a factory and a warehouse?

Many options are available, such as licensing your patent rights to a company that wants to make your product or incorporate it into their existing product.

Another option is to sell your patent rights through a patent broker.

What Is a Patent Broker?

Imagine that you own a home that you would like to sell. In order to save yourself some money on Realtor commissions, you decide to list the home yourself.

The problem with this approach is that it’s quite a bit of work. Despite staging the home and holding several “open house” events, several weeks or even months go by without anyone making an offer on the property.

You start to get worried. A great deal of time and money has been spent trying to get this house sold, but nothing is happening.

Would it have been better to engage a Realtor in the first place?

A patent broker is kind of a like a Realtor for a patent. They use their business connections to try to sell your patent. Sometimes, this happens in an auction.

This sounds like the ideal set up, and in some cases, it can work. However, working with a patent broker usually isn’t the best option for a number of reasons.

Potential Problems with Patent Brokers

As in any profession, some patent brokers are more trustworthy than others. This is problematic because it can be difficult to know which broker can be relied upon and which one is really just looking after his own interests.

Consider that a patent broker is allowed to represent both the buyer and the seller in any transaction. This means that the broker isn’t wholly vested in making certain that you, the seller, gets the best possible deal. Obviously, this can be bad news for the patent owner.

Another problem is that patent brokers sometimes offer to buy a patent at one price, but then sell the patent to someone else at a much higher dollar amount. This represents a nice profit for the broker, though it hardly seems fair to the original patent owner.

Moreover, patent brokers may collect a finder’s fee from the buyer of the patent, which may again cause them to put their interests above those of the seller.

It’s also possible that patent brokers may share privileged or confidential information with a potential buyer. If you have data that you prefer to keep confidential, then you may not want to work with a broker.

Working with a Patent Attorney Is Different

When you engage a patent attorney, they are legally and ethically bound to solely protect your interests. Your attorney may represent you in a transaction, but he most certainly will not also be representing the other side, which would be a clear conflict of interest. The result is that you are much more likely to close a fair deal.

You attorney will always keep your confidential information private, even while negotiating a purchase contract, which means that you don’t have to worry about proprietary data getting into the wrong hands.

Just as critically, a patent attorney can provide you with valuable legal advice regarding the scope of your invention so that it can be implemented without infringing someone else’s patent.

Intellectual property lawyers even can assist you to explore patent monetization strategies that can help you put your patent to work while cutting out the expense and potential pitfalls of working with broker.

Work with Williams IP Law

If you have obtained a patent, then it’s vital to realize that this is a valuable asset to you or your business. Getting a patent is costly and time-consuming, which means that you are probably excited about the opportunity to actually start making a profit from all of your hard work.

Is engaging a patent broker the right step? It might be, but in most cases it is wiser to work with an experienced patent attorney like Jeff Williams who can provide the sensible guidance that you need.

If you are looking for a way to monetize your patent, contact the Law Office of Jeff Williams today.