The Conditional Infringement Analysis And Its Types

Infringement analysis is typically performed when a party, except patentee or licensee, is manufacturing, importing, using, selling, or offering the patented technology for sale without permission/license from the patentee, during the patent validity term and within the origin country. These aspects are considered while testing for infringement of the patent. The patent infringement analysis procedure varies from country to country. Still, in general, it requires that the infringing party’s product falls within one or more of the patent’s claims.

The process involves reading concerned technology claims; it assesses if all or some of the claim’s elements are found in the technology. Suppose a single element is missing from the technology’s claim. In that case, the claim does not relate to the technology; the technology will not infringe the patent concerning the claim, except when the equivalence doctrine is applicable. The parties resolve the dispute settlements; these involve a licensing agreement, like a cross-licensing agreement. These private settlements may not always be in the public interest.

Infringement analysis concerns analyzing infringement of technology owners’ patent rights by a prevalent product in the market.

Infringement analysis is performed under the following circumstances:

• When a patent owner wants to understand whosoever is violating the patent rights. In this case, the owner expresses interest in finding out the market’s active companies with products infringing the products. The owner may get an infringement analysis done to understand the parties wanting to license the company’s technology or suing the parties to avoid exploitation of patented invention from competitors.
• Another case is when a patent attorney concerned with patent litigation seeks to understand the infringement level. For patent litigation, parties arguing about potential infringement and associated violation damages. For this, attorneys representing both the plaintiff and the defendant get infringement analysIs done to analyze the infringement level. This analysis supports their arguments and assesses potential damages.
• Infringement analysis is also performed when a company launches a product and looks out to understand any potential infringement chances of active patents. In many cases, companies get the freedom to operate (FTO) analysis done. For assessing FTO, professionals attempt to analyze the relevant infringing patents.

According to specific jurisdictions, there are some cases of patent infringement called “indirect infringement.” An indirect breach occurs if a device is claimed for a patent and a third party deliberately supplies a product that is used reasonably for the claimed device.

The basic principle is determining if a segment of technology infringes a patent or not by analyzing the patent claim’s scope and meaning. This analysis is followed by comparing the accused product’s claim to determine the infringement’s potential extent. Understanding the breach of a patent claim requires that each claim element is present in the accused product. So, it involves deciphering the claim based on the knowledge of the concerned industry. There is no substitute for having a person possessing skills for reading the claim and examining potential infringers.

Patent infringement is generally of two types: literal infringement and infringement under the doctrine of equivalents.

The term “literal infringement” means every element in a claim has identical correspondence that allegedly infringes the device or process. However, even when literal infringement is missing, a claim can be infringed under the doctrine of equivalents. It happens when some other element of the accused process performs the same function, in somewhat the same way, to achieve the same result.

1. Literal Infringement: The infringement of a claim requiring the accused device to meet every limitation of the claim, either under literal infringement or under the doctrine of equivalents. In the case of literal infringement, when a claimed element is missing, literal infringement is avoided. It can also be said that a “literal” make up of such a limitation might encompass just the disclosed structure and its related equivalents. 
2. Infringement Under the Doctrine of Equivalents: One principal concern with the patent claims’ literal language is that, even when you avoid literal infringement, one might still infringe the patents that come under the “doctrine of equivalents.” The “doctrine of equivalents” concerns judicially created doctrine having a three-part substantial identity test embodying the following steps:

a. Determine if the accused device or process achieves almost the same result as of the claimed invention. If it does not gets approve, then the infringement inquiry ends.

b. Determine if the accused device or process performs almost the same function as the claimed invention. If it does not, then the infringement inquiry ends.

c. Determine if the accused device or process operates in the same way as the concerned invention. If it does not, then the infringement inquiry ends.

In short, to find infringement under the doctrine of equivalents, the comparison is made using the ‘element-by-element.’ method and not by using the single claim for the whole analysis. This comparison is made between the claimed invention and the accused device. The three-prong test is used to determine if a “substantial equivalent” exists for a claimed element or limitation. However, even after “substantial equivalent” is found, there is still no infringement if the asserted scope of equivalency encompassed the prior art or is barred by the patent’s prosecution history.