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What is an Infringement?

Updated on February 2, 2010

An infringement, in law, means the wrongful invasion of some legal right. The term has no technical meaning except when associated with other words, as, for example, in the phrase "infringement of a patent." Infringement may apply to the breach of a contract, the violation of a corporation's right to the exclusive use of its name, or the invasion of a ferry franchise by a competing ferry or bridge. Ordinarily, however, infringement refers specifically to patents, copyrights, trademarks, or trade names, and the term has various technical definitions depending on the particular phrase in which it is used.

Infringement of a patent is the unauthorized making, selling, or using of a device that accomplishes substantially the same result as a patented object by substantially identical means and method of operation. The unauthorized manufacture, sale, or use must take place within the area and the time covered by the patent. A close copy constitutes an infringement, even though there are changes in form or position of the operative parts of an apparatus. Infringement cannot be avoided by a multiplication of the elements and parts of a patented invention or by a separation of one integral part into two. Merely obtaining the same result is not an infringement, if substantially the same means and methods are not used. In the case of a design patent, the test of infringement is substantial similarity that might deceive the ordinary purchaser.

Infringement of a trademark or trade name consists of the unauthorized use of a closely similar, but not necessarily identical, mark or name. As in the case of a patent design, the test is whether an average purchaser buying with ordinary care would probably be deceived by the similarity of the mark or name.

Infringement of a copyright is the copying of a substantial portion of copyrighted material. As in the case of patents, the term applies only to acts done within the territorial and temporal limits of the copyright. Material that may be the subject of copyright infringement includes literary works, musical compositions, works of art, maps and charts, photographs, and motion pictures.


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