9 Steps to Avoid Patent Infringement Problems

By Lia Kopin-Green
November 17, 2022

Whether you own a small business that recently launched its first invention or you’re a long-time patent holder, avoiding patent infringement is crucial for any inventor. Fortunately, there are plenty of measures you can take to prevent being accused of patent infringement. Learn more about how to protect yourself and your invention from patent infringement problems with these simple tips.

1. Start Early

Avoiding patent infringement problems begins at the very early stages of the patent application process. In fact, even before any patent application is filed, you should start conducting searches to make sure you are not infringing on anyone else’s intellectual property rights. Doing so will allow you to eliminate infringing elements of your invention before it’s too late. Overall, investing time, money, and effort into doing your due diligence from the get-go will pay off in the long run.

2. Conduct a Thorough Patent Clearance Search

Patent clearance searches, also known as the freedom to operate searches or FTOs, review existing, pending, and expired patents to determine whether some component or process of a product has already been patented. Since one of the main requirements for patentability is novelty, making sure your invention has not been created in the past is a key step in the patent application process. Moreover, as long as your FTO search comes out clean, you’ll have peace of mind that you won’t be sued for infringing on someone else’s rights.

3. Learn About the Consequences of Patent Infringement

If you are aware of the legal dangers of patent infringement, you are likely to be extra cautious when it comes to respecting other people’s intellectual property rights. Being accused of patent infringement can have grave consequences. You may be forced to pay damages, including lost profits and royalties as well as attorney fees. In some cases, you may be faced with a permanent injunction that forces you to cease the use of your patent immediately.

4. Understand Patent Claims

A patent claim stipulates the exact features of an invention that will be shielded from infringement. Further, patent infringement is committed by making, using, or selling something that contains elements of a patented claim without permission from the patent owner and while the patent is still in effect. Understanding the components of a patent claim can give you a better idea regarding what to avoid when it comes to parenting your own invention. Keep in mind that even if you add an additional feature that is not included on the original patent, if your application includes all of the relevant features of the patent claim, you could be sued for infringement.

5. Beware of Contributory Infringement

In some cases, one may be held liable for patent infringement even if he or she did not actively participate in infringing activities. This concept is known as contributory infringement. According to these laws, a business may be sued for infringement if it gives other people access to a product that infringes on another person’s patent rights. Avoid contributory infringement by conducting extensive research on the products you sell, market and otherwise associate your business with.

6. Keep an Eye Out

It is a common misconception that pretending to be unaware of an existing patent will prevent you from being sued for infringement. In reality, intentionally avoiding becoming aware of a patent of a competitor can still result in an infringement suit. Carry out proper prior art and clearance searches and act accordingly if you find that your product infringes on another patent. Doing so is key in steering clear of a patent infringement lawsuit.

7. Look for Mistakes in the Original Application

If you have been accused of patent infringement, there are several defenses available at your disposal. One of the most common defenses to patent infringement is that the original patent is not valid. This may be due to the fact that the patent holder was dishonest on the application, the application features wrong or misleading information, or that someone used the patented item for illegal activity. Detecting one of these issues can lead to the plaintiff dropping the patent infringement claim against you. Consider having your attorney examine the original application for these errors.

8. Don’t Be Naive

Remember: anyone can get sued for patent infringement. Individuals, small businesses and massive corporations are not immune to the dangers of patent infringement claims. Maintaining the “it will never happen to me” mindset can be detrimental in the long run, and cause you to take risks that increase your chances of being served with a patent infringement claim.

9. Work with an Attorney

Being accused of patent infringement is no joke, and it is not an issue that should be faced without proper legal representation. If you have been served with a patent infringement claim, or if you are simply looking for more ways to protect yourself against patent infringement problems, contact one of our professional intellectual property attorneys as soon as possible. Your lawyer will be able to help you navigate through these issues with ease.

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