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How is a patent infringed?

There are several ways that someone can violate another person’s patent rights, infringing that patent.  However, infringement cannot occur until the PTO has actually granted a patent on an inventor’s application. So while the patent application is still being prosecuted, a patent is only “pending” and the inventor does not have any rights yet.

Once a patent is granted, however, it can be infringed. The most common way a patent is infringed is by direct infringement, which is where someone makes, uses or sells the patented invention in the United States. For example, if you have a patent for a Doohickey, and I start selling Doohickeys without your permission, I am directly infringing your patent. It should be noted, however, that direct infringement does not include resale or repair, so if I legally own a Doohickey, I can repair it or resell it without violating your patent.

A patent can also be infringed indirectly, through two types of infringement - contributory infringement and induced infringement. These are essentially, where one party is involved with something that leads to direct infringement by someone else. What is the difference between contributory infringement and induced infringement.

There are two other types of infringement disputes that arise where people are trying to avoid a patent’s implications by going outside of the United States. In the first scenario, someone imports a product which was made abroad by a process which is patented within the United State. For example, if you own the patent on how to put a widget together, but you do not own a patent for the actual widget, I might try to get around your patent by having the widgets put together in China and then imported into the country. Even though I did not violate your patented process, because I did not use that process in the United States, I am still an infringer.

In the second scenario, someone makes or sells parts used to make a patented invention to someone who plans to put them together outside of the United States. So if your Doohickey is made up of five parts, I might try to make those five parts and sell them to someone in China to have them put the parts together, in an attempt to avoid infringing your patent. Event though the Doohickey is not actually being made by me in the United States, I am still an infringer in this situation.