The term infringement is not only a heavy-sounding term, but for inventors and businesses, it's also a word that can cause stress and sleepless nights. Patent infringement is not a term any company wants to hear. A patent infringement lawsuit can be particularly disastrous and ruinous for small businesses. However, there are ways to prevent patent infringement by keeping a few things in mind right at the innovation stage. Read on to learn more.
Before we get to the main question, here's a quick recap regarding what a patent is?
A patent is a right you obtain to stop others from using, making or selling your invention. The maximum life span of a patent is twenty years from the date of filing.
Television shows rarely provide accurate information on the patent process. We often have people ask us to confirm that all they need to do is be 30% different from a patented invention to be safe. Unfortunately, there is no rule like this that can be relied on. Whether or not you are infringing depends entirely on what the patent claims protect. So how do you know if you are infringing? That is the real question.
Closely Look at the Claims of Any Existing Invention
You might think your product is unique, but most inventors do not consider the difference between a product that is unique and a product that is patentable. It's highly probable that a unique product has elements that exist in other patents. This is particularly relevant when a patent application for an improvement on an existing invention is filed. The protection granted by a patent is determined by the language of the claims. It is the claims, and not the description, that set out what is being protected. It is also common for patent claims to change during the examination phase of the patent process. Generally, claims become more narrow as the patent proceeds through examination as the patentees look to clarify the patentable differences between their inventions and the references cited against them. If your invention encompasses all of the elements of an existing patent, there is a change that you are infringing. A registered patent agent or lawyer can assist you in determining the likelihood that an infringement is occurring.
Be Cautious About Dead or Expired Patents That Are Similar to Your Invention
There could be a scenario where a patent has expired for an invention that closely resembles your invention, making you think that this won't cause issues with infringement. But can you be sure? The chances are that you 'may be' able to make a similar product or an exact product to that of an expired patent. Generally, if you follow the design of an expired patent exactly, you are unlikely to be found to be infringing another patent. However, there is always a risk that making changes to an expired design could lead to infringement of a different patent. You should also be wary of abandoned patents since it is often possible for the owner to revive it by paying late fees or correcting other defects. In that case, the chances of you getting dragged into an unwanted infringement lawsuit increase. Caution must be practiced when dealing with dead patents. Even though a patent is dead for an invention, it could very well be the case that claimed features still exist in some other live patent. While you can't infringe an expired or dead patent, it is possible that something similar exists in another patent that you could be infringing.
Identifying possible infringement requires detailed understanding of patent claims. Patent claims can be challenging to understand. A registered patent agent can provide guidance in how to read patent claims and how to determine whether there is a potential for infringment. Being proactive to prevent potential infringements can help you save money and may even help you develop better products.
If you have questions about patents and possible infringement and what that means for your business, connect with a patent agent or lawyer in Edmonton today.