Infringement is not a judgment about whether two products are similar. It is a question about whether one specific thing contains every element of one specific sentence.
Start a conversation with the IP Concierge, already scoped to patent infringement. Select a subject area to prompt it, or describe the matter directly.
Patent cases are decided by the meaning of a small number of sentences, and the parties usually arrive with very different readings of them. That is not obstinacy. Claim language is drafted years before the accused product exists, by people trying to describe an invention broadly enough to be valuable and narrowly enough to be granted, and the result is genuinely capable of bearing more than one reading. Everything downstream depends on which reading prevails: whether the accused product infringes, whether the prior art invalidates, and what the technical predicate for damages looks like. A case that treats claim construction as a procedural step and the technical analysis as an afterthought is a case that has already conceded the ground where it would have been decided.
They run in order, and each one constrains the next. A construction broad enough to capture the accused product is frequently broad enough to read on the prior art.
The step that decides the case, resolved before most parties have understood what they are trading away.
investigateEvery element of every asserted claim, located in the accused thing — or shown to be missing.
investigateThe defense that ends the case rather than reducing it — and the art the examiner never saw.
investigateWhat a technical expert is actually asked to do, and what each task requires.
Not necessarily, and this is the most common misunderstanding among people new to patent disputes. Infringement is assessed against the claims, not against the product the inventor built or the problem the patent solves. If the accused product lacks even one element of a claim, it does not literally infringe that claim regardless of how similar the two things look in use. There is a separate route — the doctrine of equivalents — for differences that are insubstantial, but it is narrower than people expect and is constrained by what was given up during prosecution.
The court, as a matter of law, in a proceeding usually called a Markman hearing. Experts do not construe claims. What a technical expert can do is explain how a person of ordinary skill in the art would have understood the terms at the relevant time, and that testimony can matter a great deal — but the construction itself belongs to the judge, and once it issues both sides live with it.
Because they are constrained by the same construction, and the constraint runs in opposite directions. A patent owner wants terms read broadly enough to cover the accused product; the accused infringer wants them read narrowly enough to avoid it. But a broad construction also reaches further back into the prior art, which is why a construction won at the Markman stage can create an invalidity problem that was not there before. Practitioners describe this as the vice, and it is why the two analyses are best run together rather than in sequence.
In district court litigation an issued patent carries a presumption of validity, and a challenger bears a heightened burden to overcome it. Proceedings at the Patent Office operate under their own standards, which is one reason parallel challenges there are so common. What the presumption does not mean is that the examiner considered everything: the most effective invalidity cases are usually built on art that was never before the examiner at all.
That is a legal question with a technical and factual predicate, and it is worth asking early because the answer is often not what a client assumes. Recovery is bounded by a statutory look-back period, and where a patented article is sold, marking and actual notice can determine when damages begin to accrue at all. These are decisions frequently made years before anyone contemplates litigation, and they cannot be repaired afterward. The Institute can say what the analysis examines; what it yields in a particular matter is for counsel.
Describe what is asserted and against what. The Institute will help you see what the analysis needs.