Patent Infringement

Types of Patent Infringement

Utility Patent Infringement

Utility patents protect the functional aspects of an invention — how it works, what it does, how it's made. Infringement occurs when another party makes, uses, sells, or imports a product or process that falls within the claims of the patent.

Direct infringement — Manufacturing or selling a product that incorporates the patented invention. The infringer doesn't need to know about the patent; even independent development of the same invention can constitute infringement.

Indirect infringement — Contributing to or inducing another party's infringement. For example, selling a component that has no substantial non-infringing use and is specifically designed to be part of a patented product.

Design Patent Infringement

Design patents protect the ornamental appearance of a product — its shape, surface decoration, and visual characteristics (not its function). Infringement is assessed by the "ordinary observer" test: would an ordinary observer, giving the level of attention a purchaser would give, find the accused design substantially similar to the patented design?

Design patent enforcement has become increasingly important in e-commerce, where knockoff products copy the appearance of popular products while potentially changing internal components.

In the EU: Registered and Unregistered Designs

The EU design protection system differs from the US:

• Registered Community Design (RCD) — Filed with EUIPO, provides exclusive rights for up to 25 years (5-year terms, renewable). Registration costs EUR 350.
• Unregistered Community Design (UCD) — Automatically protects new designs for 3 years from first public disclosure in the EU. Provides protection against deliberate copying but not independent creation of a similar design.

Patent Infringement in E-Commerce

The growth of online marketplaces has created new challenges for patent enforcement. Sellers on Amazon, eBay, AliExpress, and other platforms can list products from anywhere in the world, making it easy to sell knockoff products that infringe patents held in the buyer's jurisdiction.

Platform Enforcement Programs

Amazon APEX (Patent Evaluation Express) — Allows utility patent holders to initiate a neutral evaluation of whether a listed product infringes their patent. Both sides submit arguments, and a neutral evaluator renders a non-binding decision (typically in 2-3 months). If the evaluator finds likely infringement, Amazon removes the listing. The process is significantly faster and cheaper than litigation.

Amazon Brand Registry and Project Zero — While primarily trademark-focused, these programs can be used alongside patent enforcement to protect branded products from knockoffs.

eBay VeRO — eBay's Verified Rights Owner program accepts patent-based takedown requests, though enforcement requires identifying specific listings.

Design patent takedowns — Platforms like Amazon, Walmart, and eBay accept design patent-based takedown requests, which is valuable for protecting product appearance from copycat listings.

Challenges of Online Patent Enforcement

Jurisdiction — Patents are territorial. A US patent doesn't protect against sales in the EU, and vice versa. Sellers on global marketplaces may be located in jurisdictions where enforcement is difficult.

Volume — A single infringing product may appear in hundreds of listings across multiple platforms, each requiring separate enforcement.

Anonymity — Many marketplace sellers operate under business names that are difficult to trace to real individuals or entities.

Whack-a-mole — Removed listings may reappear under new seller accounts within days.

Patent Infringement vs. Other IP Rights

Aspect	Patent	Trademark	Copyright	Trade Dress
What it protects	Inventions (utility) or appearance (design)	Brand identifiers (name, logo)	Creative works (text, images, code)	Overall commercial appearance
Duration	20 years (utility), 15 years (design, US)	Indefinite (with use and renewal)	Life + 70 years (US)	Indefinite (with use)
Registration required?	Yes	Recommended but not required	Automatic at creation	Not required
Online enforcement	Litigation, APEX, platform takedowns	UDRP, registrar complaints, platform takedowns, DMCA	DMCA notice-and-takedown	Lanham Act litigation
Primary challenge online	Knockoff products on marketplaces	Domain squatting, phishing, fake shops	Content piracy	Copycat products and packaging

When Patent and Trademark Infringement Overlap

In practice, patent and trademark infringement frequently co-occur. A counterfeit product typically:

1. Copies the design (design patent infringement)
2. Copies the functionality (utility patent infringement, if applicable)
3. Uses the brand name and logo (trademark infringement)
4. Uses product images from the legitimate listing (copyright infringement)

This overlap means that brand protection programs — which focus on trademark monitoring and enforcement — often catch patent-infringing products as well, even when patent-specific enforcement tools aren't used. The brand name on a knockoff product is often the most detectable signal of the underlying patent infringement.