What is patent infringement analysis?

Patent infringement analysis is a systematic technical and legal assessment of whether a product, manufacturing process or commercial activity falls within the scope of protection of a specific patent. For the patent owner, it supports the protection of rights; for a manufacturer or importer, it helps anticipate possible infringement claims. The review is based not merely on whether products resemble each other, but on the technical elements of the valid patent claims.

Why carry out a patent infringement analysis?

Infringing a patent can have serious consequences such as a halt to production, withdrawal of products from the market, damages and licence fees. On the other hand, an inadequate analysis can also trigger unnecessary disputes and wrong investment decisions. The analysis is used at the stages of market entry, assessing competitor products, licence negotiations, responding to a cease-and-desist letter and preparing for litigation.

Law No. 6769 and the legal framework

In Türkiye, the scope of a patent right and its infringement are assessed under Industrial Property Law No. 6769. Whether the patent was in force on the relevant date, the territorial scope of protection, the owner’s powers, statutory limitations and the nature of the act in dispute are examined together. The fact that a patent has been granted does not mean that the right cannot be invalidated in the future.

The patent infringement analysis process

• Scope: The country, product, version and date under review are defined.
• Legal status: The legal status of the patent and its valid claims are verified.
• Claim chart: Technical data is gathered, a claim chart is prepared and literal correspondence is assessed.
• Further analysis: Where needed, equivalent elements, exceptions and validity risks are analysed.
• Reporting: The findings and recommended steps are reported.

The patent infringement analysis report

• Scope and assumptions
• Bibliographic data of the patent
• Legal status
• Valid claims
• Product description
• List of evidence
• Claim chart
• Technical correspondence
• Uncertainties
• Risk assessment
• Recommended actions

Scope of protection and claims

• How is the scope of patent protection determined?
• The claims form the basis of the scope of patent protection. The description and drawings are used to interpret the claims. Since the claims of the application as filed, the published text and the granted patent may differ, the correct version must be used. Foreign claims within the patent family do not replace the scope of protection in Türkiye.

• Independent and dependent claims
• An independent claim defines the main elements of the protected technical solution. Dependent claims contain additional limitations. Each claim should be broken down into its elements, the essential features identified and compared with the product under review. A similar purpose or commercial function does not, on its own, lead to a finding of infringement.

• Claim chart
• In a claim chart, each technical element is shown side by side with its counterpart in the product or process and the supporting evidence. For example, a sensor, a control unit and a control command may be assessed as three separate elements. A match, a missing element or an uncertainty is recorded on each row. If catalogue information is insufficient, testing, samples or an engineering review may be needed.

• Legal status and patent family
• The patent register, annual fees, term of protection, assignments, licences, and invalidation or expiry records are checked. A patent being in force in another country does not provide automatic protection in Türkiye. Protection during the application stage and the rights of a granted patent should be assessed separately.

How is infringement assessed?

• Literal infringement and equivalent elements
• In assessing literal infringement, the question is whether the essential elements of the claim are present in the product or process. In assessing equivalent elements, it may be examined within the legal framework whether a different element performs substantially the same function in substantially the same way to achieve the same result. Equivalence is not a general similarity test that removes the limitations of the claims.

• Direct and indirect infringement
• Acts such as making, using, selling, offering for sale or importing the patented product without authorisation may be assessed as direct infringement. Supplying, under certain conditions, essential means for putting the patented invention into practice may give rise to a claim of indirect infringement. Not every sale of a component constitutes infringement in itself.

• Technical comparison for product patents
• Physical samples, technical drawings, component lists, user manuals, test results and product versions may be reviewed together. Similarity in the product’s external appearance or trade name is not enough. The review date and product version should be stated, and the test conditions explained in the report.

• Infringement of process patents
• Manufacturing processes may not be easy to observe from the outside. Process flows, technical records, control software, traces left by the product and lawfully obtained evidence are assessed. Burden-of-proof rules for process patents and the limits on obtaining evidence should be examined separately for the specific case.

Patent infringement analysis versus FTO

Patent infringement analysis usually focuses on the relationship between a specific patent and a specific product. Freedom to operate (FTO) uses a broader search to assess the risks that a planned activity may face in defined markets because of third parties’ rights in force. A patentability search, by contrast, concerns the position of the invention against the prior art. Owning your own patent does not mean that you are not infringing other people’s patents.

Risk, defences and evidence

• Classifying infringement risk
• Based on technical correspondence and legal uncertainties, the report may use high, medium or low risk categories. The definitions of these categories and the data they rely on should be explained. Missing technical information does not automatically mean that there is no infringement. A risk classification does not replace a court decision.

• Defences against an infringement claim
• The absence of a claim element, the patent not being in force on the relevant date, statutory exceptions, a licence, exhaustion of rights, prior use or challenges to the patent’s validity may be examined according to the facts of the case. Not every defence applies in every case; claim interpretation and invalidity analysis must be kept separate.

• Gathering evidence and technical testing
• Purchase records of samples, serial numbers, dated screenshots, technical documents and laboratory tests may form part of the body of evidence. The verifiability of the source, the chain of custody and the lawful method of obtaining it are important. Unlawful access to confidential information is not an acceptable research method.

Legal remedies, design changes and licensing

• Legal remedies for patent infringement
• Depending on the circumstances of the case, claims for a declaration of infringement, prevention, cessation, damages and other related claims may arise. Interim injunctions, preservation of evidence, procedural requirements and the competent court are assessed according to the nature of the dispute. Negotiation, licensing and settlement options can also provide a commercial solution.

• Design-around
• Changing the technical architecture can mean that an essential element of the claim is no longer met. However, simply changing the name or shape of a part may not be enough; the risk of equivalence should be examined. The alternative solution should be searched again for risks relating to other patents.

• Licensing and settlement
• Options such as licence negotiations with the patent owner, cross-licensing, assignment or limiting the field of use may be considered. The agreement should set out clearly the term, countries, product scope, exclusivity, royalties and dispute provisions. Technical analysis helps determine which rights are actually relevant in negotiations.

Fees and duration of an infringement analysis

Cost depends on the number of patents and claims, product complexity, the need for testing, country coverage, available documents and the level of detail in the report. A preliminary assessment for a single product and a comprehensive multi-country, multi-patent study do not have the same budget. The scope and deliverables should be defined before a quote is given.

Patent infringement analysis with Kupon Patent

Kupon Patent provides consultancy on the technical analysis of claims, product and process comparison, review of patent records and assessment of industrial property risks. The aim is to help rights holders protect their rights in an informed way and help businesses manage their technical investments with foreseeable risks. Where needed, litigation representation and specialist expertise requirements are assessed separately.