How Patent Law Protects Businesses From Competitor Copying

You've invested time and resources in developing a new product. Now, a competitor is selling something remarkably similar. If your business holds a valid, enforceable U.S. patent, you may be able to stop competitors from making, selling, or using an invention covered by that patent without permission. However, patent protection depends on what the patent legally covers, not simply how closely two products resemble each other. 

At David L. Cohen, P.C., we help businesses in New York, New York, and worldwide protect their innovations and address potential patent infringement. Understanding the scope of your patent rights can help you determine whether a competitor's activities may constitute infringement and what steps you can take. 

Patent Claims Determine Whether Competitors Infringe 

Utility patents protect how an invention works or is made, while design patents protect a product's ornamental appearance. In either case, the protection a patent provides depends on its claims, which establish the legal boundaries of the patented invention. For utility patents, these numbered statements identify the features or combinations of features covered by the patent. The United States Patent and Trademark Office (USPTO) explains that patent claims determine the scope of protection. 

Suppose your company patents a machine with a particular combination of mechanical components. A competitor could manufacture a machine that looks different but still incorporates every required element of one of your patent claims. That competing machine could infringe your patent despite its different appearance. 

Conversely, a competitor may develop an alternative product that performs a similar function without infringing your patent. This is sometimes called designing around a patent. Whether the alternative avoids infringement depends on the claims and applicable rules concerning equivalent elements. 

Design patents work differently. They generally contain a single claim, with drawings defining the protected ornamental design. 

This distinction explains why carefully drafted patent claims matter. Patent law protects specific inventions and designs, not every product that competes with yours. 

Competitors Can Infringe Without Deliberate Copying 

A competitor can infringe your patent even when it develops the same invention independently, without accessing your company's research, drawings, or confidential information. 

Under federal patent infringement law, unauthorized manufacturing, using, selling, offering to sell, or importing a patented invention can constitute infringement. Proving deliberate copying is generally unnecessary to establish direct infringement. 

However, a competitor accused of infringement may challenge the patent's validity, including through inter partes review at the USPTO's Patent Trial and Appeal Board, dispute whether its product falls within the protected claims, or raise other legal defenses. 

The central question is whether the competitor's activities infringe your patent rights, not whether the competitor intentionally copied your work. 

Copying still matters when it comes to remedies. Courts may increase damages up to three times for willful infringement and may award attorney's fees in exceptional cases. Evidence that a competitor knowingly copied your patented invention can therefore increase what you recover. 

Patent Owners Can Seek Damages and Injunctions 

If a competitor infringes your patent, you may be able to negotiate a licensing agreement or pursue legal action to stop the infringement and recover damages.

The USPTO does not enforce patents on behalf of their owners. You are responsible for identifying potential infringement and deciding whether to take action.

Options for Addressing Patent Infringement

A pending application generally does not give you the right to stop competitors from using the invention. However, after the patent issues, limited reasonable royalties may be available for certain activities occurring after publication of the application. Requirements include actual notice and substantially identical relevant claims.

Your enforcement options may include:

• Investigating the competing product: Compare its features or processes with your patent claims. Preserve relevant product listings, dated screenshots, advertisements, and available technical specifications.

• Sending a demand letter: Notify the competitor of your patent rights and request that the alleged infringement be addressed.

• Negotiating a license: Allow the competitor to use your patented invention under agreed terms, potentially including royalty payments.

• Filing an infringement lawsuit: Seek damages or other available relief in federal court. Negotiations are not always required before filing.

Damages and Injunctions for Patent Infringement

Under federal patent damages law, compensation for proven infringement generally cannot be less than a reasonable royalty, subject to applicable limitations. Lost profits may also be recoverable when properly established. For design patent infringement, the owner may alternatively seek the infringer's total profit attributable to the relevant article of manufacture, subject to statutory requirements.

Damages generally cannot be recovered for infringement occurring more than six years before the lawsuit is filed. Courts may also issue injunctions to prevent further infringement, but patent owners must satisfy the applicable legal requirements.

Patent Marking, Ownership, and Enforcement Considerations

Patent marking can affect your ability to recover damages. If your business makes or sells patented products, failing to comply with applicable marking requirements may limit damages for infringement occurring before the competitor receives legally sufficient notice.

Before pursuing enforcement, confirm that your business holds the necessary patent rights. Properly documented assignments from employees, contractors, or outside developers can help establish ownership. You should also verify the patent's current status. Expiration generally ends protection against future infringement, although claims involving earlier infringement may remain available.

Because patent litigation can involve substantial time and expense, your enforcement strategy should reflect the evidence, available remedies, and commercial value of the dispute.

Our patent law services can help you assess a competitor's product against your claims and consider an enforcement approach consistent with your business interests.

U.S. Patents Can Protect Against Infringing Imports 

A U.S. patent generally protects your invention within the United States and its territories and possessions. It does not automatically prevent competitors from manufacturing or selling the invention entirely outside U.S. jurisdiction. 

However, importing products covered by an enforceable U.S. patent into the United States may constitute infringement, even when those products were manufactured overseas. 

You may also be able to file a complaint with the U.S. International Trade Commission under Section 337 of the Tariff Act of 1930. If the commission finds a violation and the applicable requirements are met, it can issue an exclusion order that U.S. Customs and Border Protection enforces to block infringing products from entering the country. 

If your business operates internationally, you may need patent protection in additional countries. International filing arrangements can help simplify aspects of seeking protection abroad, but they do not create a single worldwide patent. 

Your filing strategy should account for where your business manufactures, sells, and expects competitors to operate. 

Protect Your Innovations With David L. Cohen, P.C. 

If a competitor may be infringing your patent, we can help assess your rights, evaluate potential infringement, and determine appropriate enforcement options. We also assist businesses with patent prosecution, licensing, and strategic patent portfolio management. 

Our attorney, David L. Cohen, founded the firm in 2017 after serving as Chief Legal and IP Officer of FORM Holdings and senior in-house counsel at Nokia Corporation. He is registered to practice before the USPTO and has professional experience in patent licensing, litigation strategy, and intellectual property management. 

Through our New York City patent counsel, we serve businesses worldwide, helping them protect their innovations and develop strategies consistent with their commercial objectives. 

Contact us to discuss your patent protection needs or the steps you can take if a competitor appears to be using your patented invention without permission.