The US Trademark and Patent Office issues patents, it does not enforce them. And since Patent Infringement is not a crime, it is up to the patent owner to pursue patent infringers through civil litigation. This is often a lengthy and expensive process.
Patent Enforcement Rights: The statute that covers this issue is 35 US Code 154(a)(1), and it establishes that a patent is “a grant to the patentee ... of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States...”. Despite the assumption that most people make that a patent is the right of an inventor to use his or her invention, a patent is actually the right of an inventor to exclude others from using the patented invention!
Patent Enforcement Is Not a Simple Matter: In fact, patent enforcement is a complicated and potentially expensive and lengthy process. The patent owner has the burden of proving infringement of his or her patent. And since Patent Infringement is not a criminal offense, patent enforcement has to be pursued through civil litigation. When the patent infringer is a large business, it can afford a lengthy and expensive legal battle. If the patent owner is an individual or small business with limited resources, it is NOT a fair fight!
Taking Action: Attempting to enforce a patent yourself is the equivalent of do-it-yourself dentistry. Not only is it painful, but the results will probably not be very satisfactory. The recent movie “Flash of Genius” tells the story of Bob Kearns who invented intermittent windshield wipers and sued Ford Motor Company for infringing on his patent. While Kearns was ultimately victorious, he ruined his life by trying the case himself. We strongly urge the patent owner who believes his or her patent has been infringed to seek professional assistance.
Patent Agents and Patent Attorneys: Also known as patent prosecutors or patent practitioners, patent agents and Patent Attorney assist inventors who are applying for patents. And an investment in a competent patent agent or patent attorney is money well spent on the part of the inventor who is seeking a patent for his or her invention. However, enforcing a patent is an entirely different matter from applying for and prosecuting a patent, so it requires a different skill set. For that you need a patent litigator or a patent enforcement firm.
Patent Litigator: The patent owner who needs to enforce his or her patent can directly engage a patent litigator or patent litigation law firm. While Patent Litigation is very expensive, there are law firms that will take a patent infringement lawsuit on some type of contingency basis (that is, agree to be paid contingent on the outcome of the lawsuit). One such arrangement is the firm takes its fees out of the final award or settlement, while the patent owner covers out-of-pocket expenses. However, the out-of-pocket expenses involved in a patent infringement lawsuit (these are called “disbursements”) and easily run into the thousands – even into the millions – of dollars.
Patent Enforcement Firm: A relatively new business concept, a patent enforcement firm specializes in patent enforcement and offers a single-contact, seamless, comprehensive package of services. The patent enforcement firm locates and engages a law firm to try the case, and the patent enforcement firm covers all expense related to the lawsuit. Patent enforcement firms operate on a full contingency basis, getting reimbursed for both litigation expenses and earning all fees contingent on winning the case at trial or negotiating a satisfactory out-of-court settlement.