Understanding Patent Cease and Desist Letters Patents apply to actual inventions and prevent others from manufacturing, selling, or using a product or process. These protections are granted by the government in exchange for public disclosure of the invention, which can leave creators open to instances of patent infringement. When this occurs, an inventor’s first line of defense is the patent cease and desist letter. This formal demand is sent directly to an alleged infringer and can later be used during litigation to show misconduct was knowing and willful. If you have received a cease-and-desist letter based upon patent infringement, please contact us at Verna Law, P.C. at 914-908-6757 or send an e-mail to anthony@vernalaw.com What is a Patent Cease and Desist Letter? Once a patent application has been granted, the owner of the patent has exclusive rights over the invention. When these rights are violated, a patent cease and desist letter can be sent to an alleged infringer of these rights. This is typically the first step in defending a patent, and in most cases, it’s also the last necessary step. Cease and desist notices are partially credited with keeping over 97 percent of legal disputes from ever entering the system. Although patent owners are granted certain protections by the U.S. Government, the onus of policing violations still falls upon the patent owner. Any enforcement activities must begin with the IP owner, and in many cases, this can lead directly to litigation. The driving focus behind patent cease and desist letters is to avoid further legal issues, but without professional assistance, these notices may simply be ignored. Every cease and desist letter explains the misconduct that’s occurring and demands that it be ended. By sending one, patent owners create an evidentiary trail that can later be used in court. If you receive a patent cease and desist letter, you have a specified time period to respond. If infringement is obviously taking place, it’s important to cease those actions immediately. Of course, not every claim of patent infringement is cut and dry, so if there’s any confusion as to whether infringement is occurring, it’s important to consult with a patent law firm to understand the patent owner's demands and the patent owner's patent claims. What Constitutes Patent Infringement? Patent infringement occurs when someone other than the intellectual property owner sells, offers to sell, uses, or manufactures a patented item or process. This must occur during the duration of protection – typically 20 years – and meet all elements of at least one claim within the patent. Some typical defenses to a patent infringement claim include: Prior Art: Alleged infringers may claim that a patent is invalid due to the existence of prior art. Non-Infringement: If the device at issue does not utilize all elements of a claim, infringement has not taken place. Inequitable Conduct: A patent can be invalidated if the owner acted in bad faith during prosecution. Doctrine of Laches: If a patent owner procrastinates in defending its rights, they could lose the ability to do so. Estoppel: Individuals are prevented from making assertions contrary to prior claims, actions, or established facts. Writing a Patent Cease and Desist Letter Considering the increasing number of design and utility patents granted by the USPTO, there’s little doubt that the frequency of patent cease and desist letters is increasing. It’s important to include pertinent patent law when sending a cease and desist letter. This lets the recipient know that you’re doing more than just “fishing” for potential infringing behavior. In addition to including specific instances where your patent was infringed, you need to explain how the recipient’s behavior constitutes infringement. This is done through a patent’s claims. Whenever you file a patent application, you’re required to list several claims that describe the invention.
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