It’s common for non-lawyers to confuse the issue of whether a patent is valid and the issue of whether a patent is infringed. That’s understandable for non-lawyers. (Less so for lawyers, though: “Counsel who undertake patent infringement litigation should know the difference between validity and infringement and are expected to accurately explain the difference to the court.” Allen Engineering Corp. v. Bartell Industries, 299 F.3d 1336 (Fed. Cir. 2002).)
Nowhere are these issues closer than where a version of a product accused of infringement was made or sold long before the patent was filed. This relationship is captured in the patent-law chestnut “That which infringes if later, anticipates if earlier.” Peters v. Active Manufacturing Co., 129 U.S. 530 (1889).
Confusing infringement and validity is not limited to non-lawyers though. Seasoned legal journalists can make this mistake too. A recent Law.com article titled “MoFo Knocks Out LCD Patent Infringement Suit Against Nikon” states:
Joshua Raskin, a partner at Bernstein Litowitz Berger & Grossmann, told ABC News back in 2008 that in his entire career he’d “never seen a more clear-cut case of patent infringement” than what Nikon allegedly did to his client, University of Illinois professor Kanti Jain. Manhattan federal district court judge Alvin Hellerstein clearly doesn’t agree. In a brief order issued on Tuesday, Judge Hellerstein invalidated patents relating to LCD technology that Jain’s company, Anvik Corporation, has been asserting against Nikon for close to seven years.
The article states that Judge Hellerstein “clearly doesn’t agree” with Raskin’s strong belief of “obvious” infringement. But it’s not clear whether Judge Hellerstein agrees or not with Raskin’s view. The judge thinks the patent is invalid. Raskin thinks the patent is infringed. Both could be true. But, contrary to the article, it’s not clear that there’s disagreement on the issue of infringement.