Infringement Analysis2021-05-07T03:58:01+00:00

Infringement Analysis

The attorneys at Jaquez Land Greenhaus & McFarland have been performing infringement analysis for over 25 years. We are skilled at reading and interpreting claims of a patent to determine the likelihood that a court would hold that a particular accused infringing system, product or activity infringes the patent.

Determining Patent Infringement

Patents are a particular arcane legal instrument. The interpretation of the claims of a patent are governed almost entirely by decisions of various federal courts, the most of important of which is the Court of Appeals for the Federal Circuit (CAFC) and the U.S. Supreme Court. Our attorneys are well acquainted with the laws pertaining to patent infringement and have written books on damages related to patent infringement, been law school professors teaching classes on patent claim drafting, patent litigation and claim interpretation in nationally recognized law schools and prepared dozens of opinions on patent validity, infringement, non-infringement, as well as preparing memos related to litigation issues and, have writing articles and giving talks at professional conferences. Our attorneys read the latest opinions and attend continuing legal education classes, lectures and professional presentations to stay abreast of the fast paced world of patent litigation and claim interpretation.

Review of the File History

An important part of performing infringement analysis is review of the file history of a patent. The file history provides important information regarding the prosecution of the patent and may significantly impact the interpretation of the claims and the enforceability of the patent generally. One component of the file history is the prior art that was cited by the U.S. Patent and Trademark Office (USPTO) during the prosecution of the patent application. Review of this information is essentially when determining the validity of the patent, performing validity searches to discover potentially invalidating prior art, determining the scope of the claims for licensing or infringement analysis, etc.

Staying Current on New Cases

Because patent law, and claim interpretation in particular, is based in large part on the holdings of courts, our attorneys read newly decided cases on a regular basis, attend professional events at which new issues in the law are discussed and meet regularly to discuss current trends in the courts. The statutes that govern patent law provide a framework for the requirements of a patent, but the nuts and bolts of claim interpretation and infringement analysis depend on careful scrutiny of the every evolving stream of cases that are being decided by the federal courts with an emphasis on the Court of Appeals for the Federal Circuit and the U.S. Supreme Court. In addition, our attorneys pay attention to the training that the Examiners are getting at the USPTO. While the manner in which the Examiner of the USPTO perform their examination is not necessarily relevant to the question of infringement, it can be helpful in understanding the general consensus regarding the manner in which the courts are likely to see a particular case, since the USPTO makes an attempt to keep their training in line with the current cases being decided by the CAFC and the Supreme Court.