MightyRecruiterBusiness owners who manufacture or sell a product have to be wary of patent infringements, intentional or otherwise. Something you should know is there are multiple ways to infringe upon an existing patent, making it imperative that you know for sure whether you might be in violation of an existing patent.
There’s More Than One Way to Infringe Upon a Patent
Directly copying a patent isn’t the only way to infringe upon that patent. You can also knowingly or unknowingly use a patented invention, or create a product that essentially performs the same function as a patented invention in the same way as the patented invention with the same result as the patented invention. Should your violation be discovered by the patent holder, she or he has the legal right to prevent your business from using the patent. What’s more is that you can also be hit with a lawsuit, or there are situations where you and your business can suffer an injunction, which is oftentimes more harmful than legal damages because of the combined inventory loss, retooling costs and legal fees.
Cut Your Losses
To keep from being accused of patent infringement, it’s best that you run a search of the patent in question on the U.S. Patent and Trademark Office database. You may be under the impression that your product is something completely new to the market, but that doesn’t necessarily mean it, or something extremely close to it, hasn’t been patented by another inventor. You may have heard that you only need to search back 20 years to be sure that you aren’t infringing upon an existing patent, but it’s better to search back even further. If you find there truly isn’t an existing product that’s like yours, you may wish to patent it before someone else does.
Patent Shelf Life
Currently, patents last 20 years from the application filing date. If you find a patent that existed before June 8, 1995, the patent is good for 17 years from the issue date or 20 years from the filing date, depending on which is longer. A plant patent is good for 17 years from the date of issue, while design patents last 14 years.
You should also know a patent can dissolve if the holder fails to pay maintenance fees. The patent becomes part of the public domain if it expires, meaning it can be used, imported or sold by anyone. Bear in mind that even after this happens the original patent holder can still take enforcement action if an infringement occurred while the patent was still enforced.
Determining Patent Infringement
Determining whether a patent was infringed is a nuanced process, and inventors as well as business owners will do well to familiarize themselves with that process. Oftentimes, inventors have to acquiesce certain elements of a potential patent to the U.S. Patent and Trademark Office, meaning inventors have to give up certain claims to an invention in order for it to receive a patent. Once those claims have been surrendered and the patent has been approved, the patent holder cannot go back and claim protection for those surrendered claims.
The way this ties into determining patent infringement is the patent owner can’t declare infringement on a claim that was surrendered during the original application process. That being said, the patent holder can declare infringement for a claim that was surrendered on grounds other than avoiding a prior patent. This also applies if the claim was never meant to be given up in the first place.
Seeking legal help when it comes to applying for and checking patents is a great idea. While legal services may not come cheap, they’re likely more affordable than a lawsuit or an injunction. After all, you’ve got the future of your business to consider.
Legal Disclaimer
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.