Someone is using my patented technology.
How can I enforce my patents?
Quick Answer
Enforcing a patent starts with proper due diligence. To enforce a patent, you must first confirm it’s legally enforceable (issued, active, and free of ownership issues), assess whether it can survive an invalidity challenge, and gather evidence proving the accused product or process matches your patent’s claims.
This type of “due diligence” must be done before pursuing negotiation, licensing, or litigation.
What You Need
An Evidence of Use Search looks for potential infringers and maps your patents claims against the accused product’s features, If key details are hidden, a Product Teardown can uncover what’s inside.
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Why due diligence matters
What steps should I take before enforcing my patent?
An informed enforcement case starts with clear, defensible evidence. Understand the scope of your patent claims, assess how they map to potential infringing products, and identify prior art that you could challenge the validity of your patent.
A targeted search at each stage tells you whether your position is strong enough to act on, before you spend on negotiation or litigation.
Confirm enforceability
Verify the patent is issued, active, and enforceable. Lapsed maintenance fees or jurisdiction gaps can hinder enforceability of your patent.
Assess Strength
Determine whether the patent can withstand an invalidity challenge before you rely on it in a negotiation or lawsuit.
Gather Evidence
Build defensible technical evidence connecting the accused product to each specific element of your patent’s claims.
Frequently Asked Questions
How do I know if my patent is enforceable?
First, confirm that the patent is issued, in force, properly owned, and free of obvious issues that could complicate enforcement. Ensure your patent has been officially granted. Pending patent applications offer no legal enforcement rights.
Check maintenance fees. Utility patents require periodic maintenance fees to keep them active. Failure to pay on time, or within the subsequent six-month grace period will cause your patent to expire.
Verify applicable jurisdictions. Patents are strictly territorial rights.Your invention is only protected in the specific countries or regions where you have been granted a patent.
It is advisable to consult a patent attorney to help you confirm your enforcement rights.
Is there a risk to enforcing my patent?
Yes. If you decide to pursue legal action against a potential infringer, there is always a risk that the patent could be challenged or invalidated. Before taking legal action, it is therefore important to assess the strength of the patent. The “strength” of the patent is the ability to withstand potential invalidation challenges.
One of the standard defenses in a patent lawsuit is for the accused infringer to claim your patent is invalid. If the defendant proves to the court that the USPTO made a mistake when issuing your patent, that the application was insufficient, that you committed fraud by failing to disclose prior art, or that you engaged in illegal conduct, the court will invalidate your patent and dismiss the case.
Why this matters: In a number of cases, patents or patent claims are declared invalid, leaving the patent owner in a worse position than before they sued.
How to reduce risk: A targeted patent invalidity search can help identify prior art that may expose potential weaknesses before those issues are raised by an opposing party. It is recommended to get a validity opinion from a patent attorney.
How can I prove that someone infringes my patent?
To prove direct infringement, you must carefully compare the wording of your patent’s “claims” (the formal statements defining your patent’s scope) against the accused infringer’s product or process. If every single element listed in one of your patent claims matches (or “reads on”) the accused device, direct infringement has occurred.
In order to find potential infringers of your patent, you may start with an evidence of use search. An evidence of use search report will contain a mapping of your patent’s claims to the potentially infringing product.
A patent attorney can then provide an infringement analysis or opinion based on the results.
What is an evidence of use search?
You need documented technical evidence connecting the accused product to each specific claim element. This is typically established through an Evidence of Use (EoU) search.
An EOU search also provides you with a claims mapping chart, mapping your patent claims against the features of the potentially infringing product or system.
What if the technical features are not publicly available or is within the device?
Oftentimes, proof of infringement is not always straightforward. If key features can’t be confirmed through publicly available information, a product teardown or reverse engineering can provide the additional technical proof. This is usually done when evaluating chip architecture, sensor identification, or determining material or chemical composition.
A product teardown may employ various advanced imaging techniques such as a 3D CT X-ray or material or chemical analyses such as Differential Scanning Calorimetry (DSC), or FTIR Spectroscopy. Software or firmware analysis techniques may also be involved. Learn more about product teardowns here.
What is a product teardown?
A product teardown is a systematic process of disassembling a physical product (smartphones, IoT devices, routers, etc) to reveal internal components, design architecture, and software implementation.
In the context of IP and patent analysis, product teardowns are used to break down integrated circuits (ICs), chipsets, firmware, and software, and trace these components back to relevant patents or portfolios, uncover standard-compliant elements for SEP Standard Essential Patents mapping, and provide technical evidence of use to support patent litigation, enforcement, and licensing.
What is a patent stress test?
Before patent owners pursue enforcement against potential infringers, it is necessary to confirm that their patent can withstand potential invalidity challenges. A “patent stress test” is essentially a patent validity or invalidity search, wherein the search tries to identify potential vulnerabilities of the patent, i.e. potential invalidating prior art that could be raised during litigation. It is important to be aware of these risks before pursuing enforcement and litigation.
How we can help
Build your technical evidence.
Patent Invalidity, Evidence of Use searches, and Product Teardown-based research give patent owners and patent counsel a documented, defensible starting point — before an enforcement position is tested by the other side.
Client Win
Product Teardown and Evidence of Use for a global renewable energy innovator
The Challenge
A renewable energy innovator needed to determine whether a competitor was infringing its patents. Chip architecture and sensor system details that couldn’t be established from public materials alone.
The solution
A non-destructive, product teardown strategy specifically developed to confirm infringement. We employed advanced imaging techniques such as 3D CT X-ray to confirm the chip and performed a technical investigation regarding the chip or sensor function within the device
The Outcome
Hundred million price tag
The case advanced to settlement discussions after the client filed suit.
The resulting evidence became critical to the client’s enforcement strategy. After the client filed an infringement suit, the case advanced to settlement discussions involving hundreds of millions of dollars, proving the value and defensibility of the technical evidence developed through our investigation.
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