Patent Infringement is unauthorized used of property. When a person or business uses your patent, they trespass on your intellectual property. They take from you the revenue your patent produces for them and would have produced from you. Under the law, you have right to pursue a civil remedy against a perpetrator of patent infringement, but a patent infringement suit is often David versus Goliath fight. The patent infirngement plaintiff is often an individual or a small business, while patent infringement defendants is a large well-financed corporation.
Once you get a letter accusing you of patent infringement you have few options; 1) You can prove that you are not doing anything wrong, either by showing that the patent is invalid like in case above or showing that you are not infringing, 2) you can stop making and selling the product and pay owner damages 3) You can attempt to get a license from patent owner 4) You can defend the patent infringement charges.
How can you avoid this nightmare? It is not as difficult as you may think. Below are some tips to help you to avoid patent infringement:
- You need to know what patent may cover your product as soon as possible: preferably at the time, you have the idea and definitely before you decide to invest in developing an idea. A good patent lawyer can investigate patents and application in United States and most foreign countries to determine if you have any potential patent issues before you invest time and money in a product.
- Have a patent attorney do a quick search of your competitors or companies known to sell similar products: All relevant patents and application that are publicly available can be located and are generally available for 18 months after they are filed. Most patent attorneys have access to sophisticated searching software that makes searches quick and inexpensive.
- Evaluate the patents located. A patent infringement charge can typically be challenged in two ways. One is to challenge the scope of claims and argue that you are not infringing the claims as written. The other is to challenge the validity of the patent to argue, that the patent should not have issued. In the United States, challenging the patent charge based upon non-infringement is legally easier than challenging a patent invalidity. To determine whether there is infringement, the scope of claims is determined and then the claims are compared to accused products.
- If the Patent Infringement cannot be avoided, the next step is to determine if a patent is invalid: This step requires a thorough investigation of the prior art. The prior art includes sales of products, written description of similar products and public uses of similar products before the patent was filed. United States patent laws require that a patent can be filed more than a year before the patent was publicly disclosed.
- A License could be established even if non-infringement nor invalidity can be established: A patent owner may be amenable to granting a license for their patent. This is what ultimately resulted in trial and appeal case for our client. After an appeal, the patent owner came to my client with a very low, almost negligible license proposal which we accepted instead of returning to the court on a minor issue of validity.