Infringe

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Erom the perspective of the Hcensee, a nonexclusive Hcense can be viewed as either a tax on the Hcensee s use of the patent or insurance against a patent infringement lawsuit. The Hcensor may want to make the technology broadly available to many parties in order to allow many parties to better exploit the technology. 

Other Terms and Conditions. The Hcense agreement should always have a specified term and include provisions for termination. Other standard provisions can be included to address such issues as reporting, infringement, indemnity/warranties, governing law, assignment, or notices. 

When evaluating an issued patent for purposes of determining the patentabiUty of a new invention, the entire patent must be considered. As a result, the figures, K, and The Detailed Description of the Preferred Embodiment, Q, are every bit as important to an issued patent as the claims, S. At certain times any one of these elements may become more relevant than another. For example, claims tend to be more relevant to deterrninations of patent infringement or violation. However, in deterrninations concerning the patentabiUty of new inventions, the figures, K, and The Detailed Description of the Preferred Embodiment, Q, may be the most relevant aspects of any previous patent. 

The definiteness requirement serves notice to potential infringers as to the exact boundaries of the patentee owner s rights. Thus, a patent provides a record of what the inventor has brought to the technological field, and also provides other parties with notice as to what conduct is permissible in view of the patent claims. 

Issuance of a United States patent transforms a patent appHcant into a patentee, and new concerns may arise relevant to management. For example, the patent should be reviewed to determine formal and substantive correctness. An audit should be taken regularly to determine whether there is a continuing justification to pay the maintenance fees required to keep the patent in force during its effective period. The patentee or patent assignee may have to address concerns of patent infringement or patent vaHdity. 

The bulk of the patent specification is the disclosure, the text and illustrations that describe the claimed invention in detail and explain how the claimed invention differs from the prior art. Modem patent disclosures contain a summary of the claimed invention, a description of the background of the invention, a general description of the way in which the invention is made and used, specific examples, and, where appHcable, drawings of the invention in general or specific embodiments. The technical information provided in a patent specification may be used without infringing the patent only practicing the invention defined in the claims within the term and territory of the patent grant is forbidden. Because much of the information in patent specifications is never pubHshed in refereed journals or other nonpatent media, patent disclosures are an invaluable part of the technical Hterature. 

Infringement Searching. An individual or organization found to be infringing the patent rights of others is subject to penalties that can be extremely costiy. It is essential for anyone contemplating a commercial venture that is technology-dependent to find out first whether or not the proposed venture falls within the area covered by adversely held patents. 

Anyone who violates the exclusive rights of a copyright owner is Hable for infringement in a lawsuit brought in federal court. There is a three-year statute of limitations on copyright infringement actions. 

The Test for Infringement. It is rare that actual evidence of copying exists. Proof of copying is usually circumstantial and is shown by a two-part test. First, the alleged infringer must be shown to have had access to the copyrighted work. Second, the two works must appear to their hypothetical intended audience to be substantially similar. The two parts of the test may be seen to be in balance while both must be present, the greater the evidence of substantial similarity, the less evidence of access is necessary, and vice versa. 

Infringement of rights other than that of reproduction, such as the rights of pubHc performance or display, are more easily proven directiy by evidence of the infringing acts, eg, by a tape recording of a pubHc performance. 

Remedies. A copyright owner successhiUy proving infringement has three remedies available recovery of monetary damages injunctive reHef and recovery of costs, including attorneys fees. 

Injunctive reHef, making the infringer stop infringing, is often more important to the copyright owner than recovering damages. The court may craft appropriate injunctive reHef. 

Within the court s discretion, and subject to timely registration, the prevailing party in an infringement suit may be awarded the costs of the Htigation, including a reasonable attorney s fee. 

British and U.S. courts began developing case law to protect trademarks against infringement in the early 1800s. In 1883, the United Kingdom adopted a statute that provided for registration of fancy words as trademarks. The United States enacted its first federal trademark statute in 1870, but the statute was declared unconstitutional in 1879. Subsequent federal trademark statutes were adopted in the United States in 1881, 1905, and 1920 the present comprehensive statute, known as the Lanham Act, was enacted in 1946. The Lanham Act was substantially revised for the first time in 1988 by the Trademark Law Revision Act of 1988. The 1988 act, which became effective on November 16, 1989, both modified and supplemented the earHer statute. 

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