How patent infringement happens online

 

The advance of technology, particularly the internet, increased the opportunities for patent infringements. The Unified Patent Court (UPC) of the European Union has experienced a 54.2% rise in new infringement cases, while in the US, such lawsuits surged from an annual 3000 cases filed in the 2000s to almost 19,000 in 2025.

 

Online patent infringements pose a distinct difficulty to rights holders and authorities alike. While investigators and courts are restricted by the limits of national jurisdiction, infringers face no such limitations, which makes it particularly difficult to detect, investigate, and terminate international patent infringement cases.

 

 

What is a patent infringement?

The issue of patent infringements is further complicated by the differing definitions issued by international organizations and nation states. The World Intellectual Property Organization (WIPO) defines patents as "an exclusive right to a product or a process that generally provides a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application."

 

The WIPO also states that patents are territorial rights. This means that "the exclusive rights are only applicable in the country or region in which a patent has been filed and granted."

 

As for patent infringement, the WIPO defines it as an instance when a protected item is "commercially made, used, distributed, imported, or sold by others without the patent owner's consent."

 

In line with the territorial statement of the WIPO, the United States Patent and Trademark Office (USPTO) declares that "U.S. patent gives you, the inventor, the right to ‘exclude others from making, using, offering for sale, or selling’ an invention or ‘importing’ it into the U.S."

 

Therefore, patent infringement is the "unauthorized making, using, offering for sale, or selling any patented invention within the United States, or importing into the United States any patented invention during its term."

 

 

Illustration of a legal binder with labels including intellectual property, law, infringement, patent, copyright, and trademark

 

 

As national regulations may differ, it’s important for rights holders to familiarize themselves with the exact patent laws of their target markets.

 

In general, there are two main types of patent infringements.

 

1. Literal infringement. This type of patent infringement occurs when every element of a patented product or process is matched by another, without proper authorization.
    
2. Infringement according to the doctrine of equivalents. This means that the unauthorized product is not an exact copy, but performs the same function in the same way to achieve the same results.

 

A famous example of a successful infringement case is Apple vs. Samsung, where Apple was awarded $500 million in damages over Samsung’s unauthorized use of recognizable iPhone design elements, including the rounded edges on screen icons.

 

Another case is Segway vs. various Chinese producers selling gyroscopic scooters. While their design differed from that of Segway products, they used the same fundamental balancing method that was protected by Segway’s utility patent.

 

We must make a clear distinction between trademark, copyright, and patent. The following table summarizes the main distinguishing features between these three similar phenomena.

 

 

Trademark	Copyright	Patent
A trademark is a word, phrase, symbol, or design that distinguishes a product or service from others.	A copyright is a collection of rights that protects original intellectual work, including works of art, literature, and music.	A patent protects an invention, including both the processes used during creation and the end product.

 

 

Discover the meaning behind different trademark and copyright symbols!

 

 

How to avoid infringing on someone else’s patents

Brands and businesses developing a new product must carefully examine whether they’re unintentionally infringing on someone else’s patents. Even an unintentional infringement can have detrimental effects on a business’ reputation and revenue, as it will most likely bring along lawsuits and increased public scrutiny.

 

This means that brands must conduct research during the product development process. Has the particular invention, process, product part, or product been patented by someone else? This usually has to include international research in patent offices, obtaining IP warranties, as well as close online monitoring for particular products resembling the one being developed.

 

 

Timestamped screenshot of the results of  a random product search for bird-watching binoculars on amazon.de

 

 

Discover screenseal, a free browser extension that creates court-admissible screenshots

 

Should the search yield results of similar products, brands must carefully compare the existing product’s technical specifications, manufacturing processes, algorithms, and user-facing functional features to those of their newly developed product. Depending on the nature of the product, this may also include software workflows, data processing, device interactions, and technical implementations.

 

 

How brands can protect their patents

The WIPO states that the "main responsibility for monitoring, identifying, and taking action against infringers of a patent lies with the patent owner."

 

This indicates that while registering a patent is essential, in itself it’s not enough to protect a brand’s rights against infringement. In fact, registration only provides the legal basis for protection. Patent owners themselves are responsible for detecting potential cases of infringement and taking action to protect their rights.

 

 

How to detect online patent infringements

Continuous monitoring of online marketplaces, single webshop domains, product catalogs, and industry websites ensures swift and early detection of potential patent infringement. Along with the above-mentioned methods, image monitoring is a very effective tool for this task, as it can find product pictures, including advertisements matching a patented product anywhere on the internet, even on online customer forums and fake websites.

 

The collected product images and descriptions need to be analyzed for telltale signs of patent infringements.

 

 

How to investigate a suspected product listing

Upon finding a potentially patent-infringing listing, brands need to take specific steps to determine whether the listed product infringes on their patent.

 

1. Capturing the evidence. A court-admissible screenshot has to be taken of the product listing in question, preferably one that features a timestamp like the one shown above. This applies to any type of online content, including ads, social media posts, closed buying groups, etc.

Discover the importance of digital evidence preservation!

 

2. Purchasing a sample. Buying the listed product anonymously allows brands to analyze the item and determine whether it’s really infringing on their patent. Besides that, a test purchase also provides crucial information about the identity of the seller.
    
3. Tracing the seller. If the product is indeed infringing on a brand’s patent, further background research is necessary to discover the identity of sellers, their selling volume, their potential connection to other infringements, and where the products are sourced from.
    
4. Assess jurisdiction and remedies. Armed with all the above information, brands can turn to legal counsel to set up an appropriate action plan. This may include determining jurisdiction (i.e., which court is responsible for handling a potential lawsuit), issuing cease-and-desist documents, and selecting suitable remedies.

 

globaleyez’s experience in patent infringements uncovered a couple of common scenarios that brands may find upon investigating potential cases.

 

For example, a suspicious listing can turn out to originate from a competitor marketing a functionally similar product under different branding. Another common case is when a vendor sells “compatible” replacement parts to a branded product that incorporate patented components without authorization.

 

In the realm of digital products, apps or connected devices can follow a patented workflow or data processing method. Finally, let’s not forget about the common case where fragmented enforcement allows an infringing listing that is removed from one market to remain active in a different country.

 

 

Conclusion

Patent infringements can occur online more frequently and in more subtle ways.

 

Brands need to take the initiative to actively protect their patents from infringement, starting with registration through continuous online monitoring and analysis, leading up to effective enforcement.