8. How are patent rights enforced?

Once a patent is granted, the owner may enforce it by bringing a patent infringement action (lawsuit) against anyone who uses the invention without the patent owner’s permission. Normally, when a patent infringement action is filed, the alleged infringer counters by attacking the validity of the patent. Patents may be held invalid on a number of grounds, such as fraud on the U.S. Patent and Trademark Office during the application period; a violation of the anti-trust laws that curb restraints of trade and monopolistic practices; or—as is most common—if an alleged infringer can show that the invention really wasn’t novel or nonobvious, that the patent examiner simply made a mistake in issuing the patent.

Assuming, however, that the patent is upheld, the court will take one of two approaches. It may issue a court order (injunction) preventing the infringer from any further use or sale of the infringing device and award damages to the patent owner. The court may instead work with the parties to hammer out an agreement under which the infringing party will pay the patent owner royalties in exchange for permission to use the infringing device.

Related terms: admissions by inventor; breaking a patent; contributory infringement of patent; Court of Appeals for the Federal Circuit (CAFC); declaratory judgment of non-infringement, invalidity and unenforceability of patent; defenses to a patent infringement claim; doctrine of equivalents; file wrapper estoppel; infringement action; infringement of patent; intervening right; lay judge; negative doctrine of equivalents; presumption of validity; smart money; statute of limitations, infringement action; validity search.