The Patent Parachute

What would you think of a poor skydiver plunging downward when his main parachute fails to open? I hope his emergency chute opens and saves him from his tragic destiny? Or, why would someone jump out of an airplane wearing a screwed up parachute? I guess I’m just a heartless dude. In my book, when that main chute fails to open, prepare to meet your maker.

Suing someone for infringing your patent is like jumping out of an airplane, in that you really really want the main chute to work as intended. By that, I mean that you really really want the defendant to be directly and literally infringing your patent claims. You want the jury to compare the accused product to your patent claims and conclude that everything is there. Wham, bam, thank you ma’am, your main chute worked correctly and you float safely down to where you want.

Otherwise, it’s an emergency. And before proceeding further, allow me to say: You stupid schlump! How did you get in this horrible situation? You deserve whatever you get…

But, there are a few emergency chutes for the patent owner hurling towards earth. If you’re very lucky, one of them might work. Very lucky.

Plan B, Doctrine of Equivalents. “I admit that the accused product does not literally infringe every word of my patent claims (which we’re written in a rush by a patent attorney with little experience who was willing to charge me a little less than a more experienced attorney).” “But, the accused product is a lot like what I thought was my invention, and so let’s say that it is different but equivalent to what my patent claims cover.” Amazingly, the law says that this argument could succeed... in theory. But without running our fingers through the bloody gore of all the details here, the executive summary is that Doctrine of Equivalents is very difficult to prove and very unlikely to succeed. You would be foolish to count on it succeeding.

Plan C, Contributory Infringement. “I admit that the accused product does not actually infringe any of my patent claims (which were written…).” “But, using the accused product with something else that the defendant does not actually sell, does result in an arrangement that infringes my patent.” Okay. This might work if you can do one more little thing; if you can show that the accused product always is used with that “something else” and there is no other meaningful use for the accused product. It happens. Not a lot.

Plan D, Infringement Inducement. “I admit etc…” “But, customers who bought the accused product infringe my patent when they use the accused product (though I don’t want to sue the customers because they also are my own customers who don’t appreciate the virtues of my suing them.)” “And, the defendants sold the accused product knowing that I have this patent, and knowing that my patent was unquestionably valid over all the earlier prior art in the field, and knowing for sure that my patent claims covered the use of their product by their customers, and the defendants did not even bother to ask a patent attorney if he would be willing for a fee to opine that they might not be infringing my valid patent.” If you can prove all that, then you win! Good luck.

So my expert advice for prospective patent plaintiffs is to be in no doubt that your main chute will work after you jump. Be very confident that the accused product does directly and literally infringe your patent claims. And while you’re at it, meditate on the part above about “which were written…”