How Can You Avoid Patent Infringement? A patent infringement lawsuit can be filed irrespective of the possibility of a large or small organization; anyone could be sued in any case for a patent infringement. Regardless of the enterprise size, any product or process involved without the knowledge of the patent holder leads to patent infringement. For any individual or party deciding to commercialize or invent a product or process, must initially conduct a survey or screening process at the initial phase of product development. According to the results obtained, the party must develop a research plan or a marketing strategy along with an expenditure plan to maintain a strategic distance from any type of patent infringement. Expenditure planning is one of the vital and advance step or future preparatory to spare any extra added expense during the process. Since, patent infringement claims are expensive and tedious.
When any patent infringer receives a letter for infringement, a couple of choices can be opted as solution:
(1) Demonstrating that no wrong activity has been conducted — either by demonstrating that the patent is invalid or demonstrating that no infringement has occurred;
(2) Stop the production and selling of the item and pay the damages to the patent proprietor;
(3) Seek a license from the patent proprietor; or
(4) Defend the patent infringement charges.
1. Recognize the patent that may cover the item: Ideally at the time when a thought develops (i.e. product concept stage) and certainly before pursuing to put resources into building up the prototype, one must identify the patent that may cover the item. This is the phase when typically more than one option exists. By recognizing potential issues at this stage, one can eliminate the item plans which convey a high danger of risk. A patent legal advisor must be consulted to research the patents, license associated with it and applications in different nations. The result of such investigation helps to decide whether any potential patent issues might occur, and applying the resource meticulously.
Read More: Global Patent Search
2. Hiring a patent lawyer to conduct an inquiry of the potential contenders or organizations known to offer similar items: Every important patent and applications are freely accessible after a year and a half from their filing date. In order to perform a fast and economical search, most of the patent lawyers approach modern programming software that eases the process of search. In the case of no potential patents discovered, more extensive inquiry utilizing different pursuit procedures (such as keywords) are performed. With the available search techniques accessible to patent lawyers, it is likely that any potential patent will be found. Also, while performing the online patent search, one can review the competitor’s product for other details. By reviewing the product, one can find the other known competitors for any similar patent notice and draft the item in accordance. Additionally, if the before stated searches do not help, then one can contact the competitor through a mediator to obtain knowledge regarding their product. Such searches are carried discreetly, since; any revelation of the exact source can put the company or an individual on the radar and its future development.
After recognizing at least one patent matching with the item, a primary patent infringement “screening” is essential. To carry out a primary screening of a patent, following steps can be followed:
- Determining the expiration of patent term: To decide whether a patent term has lapsed or not, one should determine the filing date and estimate the termination date from that point.
- Payment of maintenance fees: On the off chance that the patent term has not lapsed, one can check the payment of maintenance fees. If the patent proprietor has neglected to pay the required expense, the patent is never again legitimate and others can practice the innovation without infringing upon the patent.
- Review of Patent Claims: In the event that the patent has not terminated and the holder has maintained by paying the expenses, one can opt to survey the patent claims which characterize the limits of the patent security.
Read More: Market Research to ensure uniqueness in project
3. Assess the patents: An infringement charge can normally be tested in two ways:
- Challenge the extent of the claim and contend that the product does not fall under the stated claim as composed. For deciding the infringement, the extent of the claim is determined and afterward the claims are contrasted with the accused item. In the early phase of product concept development, it provides a chance to outline around the patent claims; with the help of patent agents, the claims can be deciphered and changes can be made to the products to maintain a strategic distance from the patent. If the search course suggests that the item is determined to be outside the extent of the patent, an extremely solid position is developed to any charges of patent infringement arising in the future. Even if one limitation of the claim is not matched literally or under the doctrine of equivalents, the prosecution can be in the defendant’s favor.
- Challenge the legitimacy of the patent (i.e. invalidate the patent) and to contend that the patent grant should be dissolved. It requires an exhaustive examination of the existing prior art which will incorporate sale of items, composed context of similar items and commercialization of comparative items before the patent was documented and ideally over a year prior to the filing of the patent. The patent law requires that any openly revealed documents, printed portrayals or offers available to be purchase over a year prior to the patent filing will lead to patent invalidity.
4. Neither non-infringement nor invalidity: In conditions where no non-infringement or invalidity can be established there is a possibility of a patent licensing. A patent proprietor might be persuadable to giving a permit for their patent. It is the final solution after a trial and appeal case for the defendant. In the event that a license is not attainable, an acknowledgement is made before investing the time, cash and reputation that a solid potential for patent prosecution has been identified with the item and educated choices should be developed against in case of further proceeding with the thought. The expenses and dangers related with patent prosecution may far exceed the benefit of putting the item available for purchase.
Read More: Patent Invalidity Search
Concluding with the expression of “Look before you jump” suits for avoiding any patent infringement and in order to have a decent strong comprehension of the potential dangers confronted during the process. The cost of these tips is quite low to completely comprehend the potential issues for patent infringement and recognize the possible solutions to avoid the infringement. One cannot truly avoid the patent issues and it is constantly better to confront them head on and at an opportune time. However, the key is to maintain a strategic distance from issues pertaining to potential patent issue.
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