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Say I have a patent whose claimed invention is a series of actions performed by a user as:

  1. User enters a pub
  2. Orders a beer
  3. Pay with credit card
  4. Leaves the pub

Now say I discover that someone else, in his pub allows users to do:

  1. User enters a pub
  2. Orders a beer
  3. Pay with cash
  4. Leaves the pub

Can I do something?
My broader question is: Is there a concrete method to decide whether a patent is infringed? Or is it just about the judge to decide whether he infringed my patent?

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  • In other words, you pursued a patent without the guidance of an experienced patent attorney or agent and now have weak claims.
    – Eric S ♦
    Jul 8, 2017 at 17:05
  • @EricShain yeah actually I never pursued any patent, till now :). My question is just an example to understand the limitations of patent infringement, especially when It comes to "behavioral" patents like some I checked (that had been granted by the way). I don't even understand how user behaviors could be patented, creating a monopoly de facto for the pursuing company. But I guess that as long as you give them money you can patent everything ...
    – r4id4
    Jul 8, 2017 at 17:14
  • I'm not a lawyer so I'll allow one of them to answer. I believe there have been court rulings that have limited business method patents. You can't get a patent on anything, but there are some bad patents for sure.
    – Eric S ♦
    Jul 8, 2017 at 20:38
  • As I'm not a lawyer, I'll just state what I think is true as a comment. Anyone can claim infringement and sue. It is then up to a judge and jury to determine if infringement occurred. There are people who do this as a business (AKA patent trolls) hoping to settle for small payments out of court since the cost for the sued party is high to fight in court.
    – Eric S ♦
    Jul 13, 2017 at 15:35

1 Answer 1

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Is there a concrete method to decide whether a patent is infringed?

Yes. On a claim-by-claim basis, an accused product or process infringes a claim if every element and limitation of the claim is found in the product or process.

Your example is a process claim comprising step A, step B, step C and step D. The accused infringing process includes step A, step B, step E and step D, but not step C.

One element of the claim, step C, does not appear in the accused process; therefore the process does not infringe the claim.

Roughly speaking, a jury decides facts (Does the accused process contain step C or not?), while the judge applies the law (Based on the facts of the case, has infringement occurred?)

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    You might want to add the doctrine of equivalents.
    – user18033
    Jul 26, 2017 at 21:54
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    Yes, if the example claim included "provides a form of payment", the accused example of "cash" would literally infringe. As presented, one would have a hard time arguing that "cash" is an equivalent claim element, and thus would probably NOT infringe by equivalence.
    – Upnorth
    Jul 29, 2017 at 23:57

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