Failure to Enforce Your Patent

What does this mean?

Even if your patent is approved, you’ll still be the one responsible for enforcing your patent--there’s no “patent police.” That means if you find out that a person is using, making, or selling your patented invention without your permission, you’ll have to take them to court and pay the costs associated with doing so. Or more likely, threaten to do so and get them to stop.

Does this apply to me?

If you have or plan on having a patent, yes.

Why is making this mistake going to harm my business?

When you fail to enforce your patent you risk losing the right to recover damages from the infringement. Also your inaction may actually trigger either of 2 legal principles, laches or equitable estoppel, which serve as complete defenses to your patent infringement case.

Laches simply means that you’ve slept on your rights considering the unreasonable amount of time (6 years) it took before you acted on the infringement. Estoppel on the other hand involves some sort of tolerance on your part. Without going into the whole legal details, there may be estoppel when your delay acting on the infringement is surrounded by circumstances which may be reasonably construed to mean you were okay with the infringer’s acts.

You could avoid this by:

Being unequivocally clear in your demand letters or any communications with infringers. Avoid anything that may be misconstrued as allowing the infringer to continue. Also, while it is important to act immediately on any act of infringement that you might come across, you also need to make sure that you will somewhat be able to pursue it. This is because the time period for laches starts once you tell him he’s infringing on your patent.


Example:

Will invented a sales automation system and was granted a patent for it. A few months after getting his patent, Will saw an advertisement on TV for Chet’s, his former business partner’s, company where he was selling the exact same thing.

Will, wanting to maintain their relationship, sent Chet a message asking Chet to stop selling Will’s product since Will had the patent.

Seven years past, and Chet never stopped selling it. Chet was a terrible businessman, so wasn’t making a lot of money, which is why Will didn’t care enough to pursue any action against him. After the seven years, Will was ready to sell his company and his patent, but the buyer found out that another party, Chet, had been using Will’s patent the whole time.

Will sued Chet for patent infringement but lost because the court found Will waited too long and that Chet had invested too much into his own product in reliance on Will not suing him to make him stop using it now.

Will could’ve avoided this if he had enforced his patent protections earlier.

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