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3 Legal Defenses If You Are Accused Of Patent Infringement

14 February 2020 by Louise Boyd

If you are taken to court and accused of patent infringement, and you don't think that you committed any patent infringement, you are going to need to hire a patent lawyer to defend you. Once you hire an attorney, you are going to need to work together to formulate an effective defense. When it comes to your defense, you have a few different options.

Defense #1: Invalid Patent

One defense option that you have is to argue that the patent itself, that you are being accused of infringing upon, is invalid. In order to mount this type of defense, you would need to demonstrate the patent in question fails to meet one of the five defining requirements for a patent.

For example, you can argue that the patent is not something that can be patent because it is considered a building block of knowledge that one person can't hold the rights to. Or you can claim the patent is not useful, although that can be a difficult defense if you found it useful enough to use it. Or you can argue the patent is not novel or special enough to deserve a patent. Or you can argue that it is so close to a previous invention that it doesn't warrant a patent.

With this type of defense, you have to prove that the patent office should not have granted the patent in the first place, which can be a tall order.

Defense #2: Experimental Use

You can argue that although you did infringe on the patent, you were only using the patent as a way to provide amusement for yourself. With this type of defense, you cannot have used the patent in any way that was commercial. You need to have used it for your own amusement or injury. With this defense, you are admitting to using the patented invention, but stating that you didn't infringe on the patent because you were not making any money off it. In the age of social media, that may also mean that you didn't use it in a way that could go viral or increase your followers, and thus could have a commercial bend to it.

Defense #3: Non-Infringement

Finally, you can argue that you didn't infringe on the patent at all. You can show that the argument for infringement is not valid. This can be achieved in a variety of ways. For example, you can show that whatever you created was far different than the patent invention. Or you can show that you were using an entirely different patent that you had the rights too.

If you are accused and taken to court for patent infringement, you are going to need to hire a lawyer if you disagree with the charges so that you can fight back against the charges. You need a lawyer that works with patent law, as this is a very specific type of law that requires a deep understanding of patent law in order to achieve success.  

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