There have been several hefty fines and penalties for patent infringement against major companies in recent years. Household names like Samsung and Apple serve as examples of potentially crippling consequences of being accused of patent infringement. Therefore, today’s companies need to understand the steps to take after receiving a cease-and-desist letter.
Understanding willful infringement
According to the United States government, patent infringement happens when an individual or entity makes, sells, uses, or imports a product or technology that already has an enforceable patent. The court does not consider whether the accused knew about the patent’s existence or not. However, the accused’s knowledge of the patent is relevant when assessing the monetary damages by the court.
Therefore, the first step is to never dismiss a cease-and-desist letter. It sets the groundwork to increase damages should the court find your company guilty. Patent owners can only get monetary compensation for a company’s past infringement if the accused infringer had actual knowledge of the issue.
The court determines that an infringer is liable when the patent owner consistently ensures that its product or technology was marked with a patent number. Therefore, businesses that mark their products recover monetary compensation even when the infringer never got any actual patent infringement notice.
Your business will receive a notice by mail accusing you of patent infringement. Then, you need to exercise due care by determining whether you are infringing on another company’s patent. A business is found to be liable for willful infringement when it did not exercise due care and instead continued with an activity that is later declared to be infringing.
Exercising due care
What do you do now that you have a letter notifying your business about possible patent infringement? Well, ensure you take reasonable measures if you intend to continue using the product or technology in question. For starters, it will help to find a competent patent attorney to help you determine whether you are breaking patent laws.
Seeking the opinion of your in-house scientists and engineers will also come in handy at this stage. However, your team might not be experienced or skilled enough to determine whether your product or technology is infringing on a particular patent. Patent counsel is the best way of getting competent legal advice on the issue. Therefore, you can formulate a response to the cease-and-desist letter before it gets too late.