JUNE 2012
VOLUME 4, ISSUE 4
Software Scan |
The President's Column |
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Worried about infringing someone's patent? Or do you want to know if someone else is infringing your patent? There are several ways to infringe a patent, and it's wise to understand all of them. That's why in this month's Scanning IP section I explain the ways to infringe a patent. In the Scanning Tools section, we announce our latest product, the HTML Preprocessor, that allows you to split complex web pages into smaller files for easier copyright and trade secret analysis using CodeSuite and DocMate. Send me your comments and critiques. I'm always interested in hearing from you. Regards, |
Scanning IP |
Ways to Infringe a PatentA patent can be infringed in two basic ways: directly and indirectly. These different ways of infringing are important to understand by anyone wanting to enforce patents and by anyone wanting to avoid infringing a patent. Direct InfringementA patent claim is directly infringed by some product when that product practices each “limitation” of the claim when the claim is a method claim, or includes a structure equivalent to each “limitation” of the claim when the claim is an apparatus claim, or does both in the case of a means-plus-function claim. The term “limitation” is used by lawyers and those in the know to mean the step or steps spelled out in the patent claim. There is another way of directly infringing known as the doctrine of equivalents. If a product doesn't perfectly meet the limitations of a claim, it may still infringe on the patent if it does something that a person of ordinary skill in the art (“POSITA” or “OOSITA”) would know was equivalent. While this may seem like a loophole, it’s actually quite fair. Suppose someone patents a “glass bulb containing a filament that produces light when an electric current is sent through it.” The inventor may not realize that a bulb made of specially treated plastic would also work. The key to the invention isn't the material from which the bulb is made. Thus a plastic bulb could infringe on the patent because of the doctrine of equivalents. Indirect InfringementIf a product doesn't directly infringe a patent, it may also indirectly infringe. There are two types of indirect infringement: induced infringement and contributory infringement. Encouraging others to infringe a patent is called “induced infringement.” When two products working together infringe on a patent, that’s called “contributory infringement.” Induced infringementInduced infringement occurs when some party purposefully causes or encourages another party to infringe a patent. The key work here is “purposely.” Induced infringement must meet these criteria:
So induced infringement requires that the infringer purposely got another party to infringe a patent. Let’s say you have a software company that produces word processing software, and your competitor has a patent on checking the spelling of words in a document and putting a squiggly red line under misspelled words. You need a spell checker, but you don’t want to infringe, so your product outputs misspelled words to a separate file and you recommend that your customers buy third-party software that reads in that separate file and puts squiggly red lines in the documents. You may be inducing infringement by encouraging your customers to perform the patented method. And don’t try to use an orange line or a chartreuse line, because you’ll probably still be infringing under the doctrine of equivalents. Contributory InfringementContributory infringement occurs when one party who knows about the patent supplies a component to another party to use in an infringing product. Contributory infringement occurs if the party who received the component directly infringes the patent and if the component has the following characteristics:
So contributory infringement requires that the infringer knowingly supplied another party with a product that was incorporated into a second product, causing the combination to infringe a patent. Let’s take the example again of your word processing company. Suppose your word processing company decides to buy the third-party squiggle generator software to incorporate into your word processor. You meet with the head of the squiggler company and tell her that your word processor doesn't infringe on your competitor’s product and the squiggler doesn't infringe. You want to embed the squiggler into the word processor. At that point you've just lost the game, because the squiggler company knows that the combination infringes and so they can be found to be contributory infringers. Because it’s your product, you can be liable for direct infringement in this scenario. However, if the squiggler can be used to underline important words, hyperlinks, and naughty words in addition to misspelled words, then the squiggler company may be OK because the component has significant uses that are non-infringing. |
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CodeSuite®
& CodeSuite-LT® BitMatch® CodeCLOC® CodeCross®
CodeDiff® CodeMatch® SourceDetective®
CodeSuite-MP® CodeGrid® HTML
Preprocessor™ |
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Find signs of copying in any document. |
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Get Smart |
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SAFE offers training at our facility or yours or on the Web. Contact us to make arrangements: |
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Your New Office |
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Remember that you can now have your own secure office at the SAFE facility for storing proprietary software, running CodeSuite, analyzing the results, and getting onsite support. We're located at 20863 Stevens Creek Blvd. |
Scanning Tools |
HTML Preprocessor ReleasedS.A.F.E. recently released the HTML Preprocessor. The HTML Preprocessor is designed to transform web pages into files that are amenable to analysis by CodeSuite, DocMate, and other source code analysis tools. The HTML Preprocessor examines HTML files and other markup language files and extracts all embedded code into separate files. These files each contain only one kind of code that can be easily analyzed and compared using CodeSuite and DocMate. The code contained in these generated files are:
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