Expert Opinion

It’s Elementary: Efficient Patent Infringement Is Wrong

Efficient infringement is a relatively new dynamic in the patent market.

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Imagine that you have an idea for a new product. You invest a great deal of time, effort and funds refining and improving upon the idea, developing a successful prototype and finally in manufacturing a finished product that is better than anything available in the market. Along the way you obtain patent protection, which requires you to invest even more funds. The product is introduced into the marketplace, including prominent marking indicating that the product is protected by a patent. The product quickly achieves success in the marketplace. A large competitor intentionally copies your product knowing that it is patented. You approach the competitor and demonstrate evidence of patent infringement that would make Sherlock Holmes proud. You tell the infringer that you could seek an injunction but you are willing to grant a license for a reasonable fee. The competitor, apparently unconcerned about your patent, replies “Sue me or get lost”.

Wait, what? You expected the competitor to respect your patent. You made a considerable investment to develop your product including obtaining the patent that protects it and your competitor did not meaningfully dispute the infringement allegation. In fact, the competitor is intentionally infringing your patent and is now using your own patented invention to compete against you. The patent is supposed to protect your invention from such intentional wrong-doers in precisely this type of situation. How can this be?

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