My competitor and I both have patents. And now they are sueing me!

Question

My competitor and I both have Patents on a specific designed product. My Patent goes as far as to "reference cite" their Patent right on the cover of my Patent.. How can they sue me if the Government specifically looked at their patent and and decided my invention was not the same and issued us a patent? This just just boggles my mind!!!!! I paid all this money in design, research, patent attorney fees, tooling, manufacturing etc and now I face a major lawsuit. And potentially being shut down. I have people that work for me. My company is at stake here! In good faith before I ever got started I had a patent search done by an indipendant source. Then I confirmed with my Patent Attorney that I was "NOT INFRINGING".

Please help! There must be something I can do about this!!

Answer 1

There are a number of ways this can happen. Just because a second patent is allowed over a first patent doesn't mean the second patent can be practiced without infringing the first patent.

Put another way, a patent does not give you the right to practice an invention, it (possibly) gives you the right to keep others from practicing your invention.

To illustrate: Amir has a patent on a new type of mechanical pencil that has a replaceable graphite cartridge . Shakira then gets a patent on a new type of colored pencil that uses a similar cartridge but tailored for holding colored graphite. It's possible for Shakira's colored pencil to infringe Amir's patent, even though Amir doesn't have a patent on colored pencils.

Answer 2

In order to be found to be infringing, your allegedly infringing product must contain ALL ELEMENTS of at least one of the claims of the plaintiff's patent. Google on "all elements rule" for further information. Here is an interesting article on the topic: http://www.ipwatchdog.com/2009/12/16/cafc-rules-patentees-expert-failed-to-sufficiently-identify-elements-of-claimed-data-transmitting-means/id=7792/