What are direct infringement and indirect
infringement?
In the world of patents, inventors are granted exclusive rights to their inventions for a limited period. However, these rights can be violated, leading to infringement. While "infringement" seems straightforward, it can encompass different actions, categorized as direct infringement and indirect infringement. Understanding the distinction between these two is crucial for inventors and businesses alike.
Direct infringement is the most straightforward form. It occurs when someone, without permission from the patent holder, makes, uses, sells, offers to sell, or imports an invention covered by the claims of an issued patent within its validity. It is important to note that the infringing product or process does not have to be an exact copy; it simply needs to encompass the essential elements of the patented invention as defined in the claims.
Indirect infringement, on the other hand, involves contributing to or profiting from another's patent, without actually practicing the infringement themselves. This can be further broken down into two Contributory infringement and Vicarious infringement.
Contributory infringement occurs when someone knowingly sells or supplies a component of a patented invention, specifically knowing that it will be used in a way that infringes the patent. For example, selling a crucial component of a patented machine, knowing it will be used to assemble the infringing machine, would be contributory infringement.
Vicarious infringement occurs when someone has the right and ability to control another party's infringing activity, but fails to take steps to stop it. For instance, a company that owns a shopping mall and knowingly allows a tenant to sell infringing products within the mall could be liable for vicarious infringement.
The key difference between direct and indirect infringement lies in the act itself. In direct infringement, the infringing party directly performs one of the exclusive rights granted by the patent - make, use, sell, offer to sell, or import. Conversely, in indirect infringement, the party does not directly perform these actions but contributes to or profits from someone else's direct infringement.