Patent infringement: What’s the difference between willful and unintentional?

| Mar 1, 2021 | Patents |

You’re standing outside, throwing a baseball back and forth with a friend. One of your throws sails to the right, however, and smashes through your neighbor’s window. While it’s clear that you didn’t intentionally lob the ball at the glass, that doesn’t take you off the hook for replacing the shattered window.

Unintentional infringement

The same principle applies to unintentional patent infringement. Even if you didn’t know of a patent and didn’t mean to violate anyone’s rights, you are not off the hook for infringing on the patent.

How does unintentional patent infringement happen? Sometimes the explanation is as simple as the cliché that great minds think alike.

Consider that it can and does happen that two competing businesses working independently of each other come up with what are essentially identical inventions. If they come up with their independent inventions at essentially the same time, the inventor who applies for and is granted a patent is the one who will be able to monetize the invention with licensing or a sale of the patent.

If the other inventor takes that nearly identical invention to market, as unintentional as it might be, that can still be patent infringement.

Willful patent infringement

Of course, willful infringement is another matter entirely. Willful patent infringement occurs when a business knows about a patent, but simply ignores it and brings to market their infringing product or service.

In many of these cases, the infringer believes their violation will either go unnoticed or that it will be too insignificant to pursue.

One of the best ways to avoid patent infringement litigation is to seek from a qualified patent attorney a “freedom to operate” opinion (aka a “freedom from infringement” opinion). An FTO search determines if your product or service would infringe an existing patent.

Taking their chances

The question facing many businesses in competitive industries is: Can you afford to wait? Some decide that they cannot wait for the completion of an FTO search, so they launch the product or service, grab their market share, build their brand and bank their profits. If they later learn they’ve infringed a patent, they hand the matter off to their attorneys and hope for the best.

Unfortunately for them, that can be a gamble that turns out to be pricier in monetary terms as, in cases of proven willful patent infringement, the patent owner can be entitled to tripled damages. In addition, they can also suffer from more negative publicity and damage to their brand and reputation than they had imagined.