Are your products patented? We conduct research in support of intellectual property disputes and charges of patent infringement. We act as an expert witness in matters of patent and design infringement and utilize court-approved approaches in infringement cases. Our work includes research to help clients repel infringing products and seek damages, as well as to defend clients from claims of infringement by a 3rd party.
A patent provides protection to inventors so that they may reap the benefits of their inventions, often created over years without reward. There are three types of patents: utility patents, design patents, and plant patents. Each type of patent has its own eligibility requirements and protects specific types of inventions.
What type of patent do you have?
The most common patent types are utility and design patents. A utility patent is granted for a product that is already developed. A utility patent covers a process, a recipe, a machine, a subassembly, or an end-product. Utility patents can also be given for process improvements, such as FedEx vs. the Pony Express.
A design patent is for the design of a product whether or not it physically exists. While a design is generally considered to be “surface ornamentation” of a product, it extends to includes its shape, configuration, and non-functional elements such as packaging.
How do you know if someone is infringing on your patent?
In some cases, the infringement is obvious: it is a direct “knockoff” of a product already in the market. Many products in consumer categories have similar names, colors, shapes, and design elements, and may even contain the exact combination of ingredients as the original branded version. In these situations infringement is more nuanced because store brands extract a price from branded products for the privilege of shelf space. In some cases, store brand packaging is intentionally designed to create consumer confusion.
Are you being infringed upon?
In a contempt proceeding, the objective is to determine whether a new entry is deliberately infringing against an established product. A finding of contempt requires proof that the accused product is no more than colorably different, and/or that the accused product infringes the asserted patent.
How do you determine infringement?
In order to determine whether a difference exists between an existing and potentially infringing product, the courts typically use what is called an “ordinary observer” test. In other words, would an ordinary observer who, familiar with the existing product or prior design/art, would find substantial similarities between the compared designs to the point where they are seen as identical or create confusion.
Ready to talk?
If you believe that your product is being infringed upon, give us a call. Let’s have a conversation about what you need to know to begin to address a possible infringement case. We work with many experts, including IP attorneys and experts in patent research, and have significant research experience in these cases.