Attorney General Herring's Patent Troll Unit
|Homepage||Patent System||Patent Resources||Patent Trolling||FAQs||Report a Patent Troll||Contact Us|
On this page you'll find answers to the most frequently asked questions about patent trolls and bad faith assertions of patent infringement. Please click on a question to reveal the answer.
What is a patent?
A patent is an intellectual property right that gives the owner the right to exclude others from making, using, selling, offering for sale, or importing the invention for a limited time. A patent does not give the owner the right to make, use, sell, or import the invention. In other words, a patent is a negative right, only giving the owner the right to prevent others from practicing the invention.
What is a “patent troll”?
“Patent troll” is an informal term used to describe an entity that obtains patents not to manufacture a product or provide a service, but to assert its patents in bad faith against numerous alleged infringers, relying on aggressive litigation techniques and the high cost to defend such litigation to extract quick settlements or licensing fees. For more information about identifying patent trolls, please click here.
How do I know if I have received a bad faith assertion of patent infringement?
Whether an assertion of patent infringement violates the Virginia statute prohibiting bad faith assertions of patent infringement requires an examination of all circumstances surrounding the assertion. The statute provides several circumstances that suggest a person has made a bad faith assertion of patent infringement, as well as indicators that suggest a person has not made a bad faith assertion of patent infringement. For more information about identifying patent trolls, please click here.
What should I do if I think I have received a bad faith assertion of patent infringement?
How does someone obtain a patent?
An inventor must file a patent application with the United States Patent and Trademark Office (“USPTO”), the agency responsible for the examination of patent applications and the issuance of patents on behalf of the United States government. The USPTO determines whether the patent application and the invention satisfy the statutorily prescribed patentability requirements. If allowable, the USPTO will send a Notice of Allowance and, after the applicant pays the issue fee and publication fee, grant a patent.
What is patent infringement?
Patent infringement is the act of making, using, selling, or offering to sell a patented invention, or importing into the United States a product covered by a patent without the patent owner’s permission.
How does a patent infringement suit begin? Do I have a legal obligation to respond?
A patent infringement suit begins when the person with the right to enforce the patent files a complaint against you alleging that you have infringed their patent. You must formally respond to a patent infringement suit within the proper time period. Failure to do so could result in a court entering a default judgment against you. An attorney familiar with patent law can provide assistance on how to respond to patent infringement suit.
What is a demand letter? Do I have a legal obligation to respond?
Prior to the start of a patent infringement suit, you may receive a demand letter from the patent owner. A demand letter is a communication from the patent owner (or a person with the right to enforce the patent) stating that you have engaged in patent infringement or that you should obtain a license to a patent in order to avoid litigation. The demand letter may delineate how you allegedly infringe a patent, invite you to discuss the issue, or offer a license to a patent. You have no legal obligation to respond to a demand letter, but responding is the best option in some situations. You should consult with an attorney familiar with patent law who can help you decide on the best course of action for your situation.
The demand letter takes issue with my use of someone else's product. How can that be, and what should I do?
A patent gives its owner the right to exclude others from making, using, offering for sale, selling, or importing the patented invention. Thus, your use of someone else's product could subject you to patent infringement liability. A patent attorney can provide advice on how to proceed, including advice on whether you should contact the vendor or supplier for help.
Does receiving a demand letter mean that I am being sued, or will be?
Not necessarily. Without more, a demand letter is simply a notice that you may have engaged in patent infringement or that you should obtain a license to a patent in order to avoid litigation. The patent owner may file a lawsuit against you in the future. You will usually know when you have been sued because the patent owner is required to serve two documents on you, the complaint and a summons.
How can I find out more information about the patent and the patent owner?
You can obtain a copy of the patent from the USPTO’s website by clicking here. You can also obtain a copy of the patent asserted from Google Patents, which some find easier to navigate, by clicking here. The "Patent Resources" section of this website provides links to organizations that may provide additional information about the patent.
The demand letter asserts that I am infringing an expired patent, how can that be?
A patent owner has six (6) years from the expiration date of the patent to file a patent infringement suit for acts of infringement that occurred before the expiration of the patent.
Has anyone else been sued over the patent?
The "Patent Resources" section of this website provides links to a number of organizations that can tell you whether the patent has been involved in patent infringement suits.
How can I tell whether or not I’m infringing?
You must compare the claims of the patent with the allegedly infringing product, system, or process. If your products, services, or technology perform each and every element of one of the claims of the asserted patent, you may have infringed the patent. A registered patent attorney can conduct an infringement analysis and advise whether you have been infringing the patent asserted.
How can I tell whether the patent is valid?
Before the issuance of a patent, the USPTO determines whether the patent application and the invention satisfy certain statutorily prescribed patentability requirements. While an issued patent is presumed valid, you may challenge the validity of a patent in court or in a proceeding at the USPTO. You should seek the advice of a patent attorney before attempting to challenge the claims of a patent.
Disclaimer: The Office of the Attorney General provides these questions and brief answers for informational purposes only—the answers provided do not constitute legal advice or official opinions.