To ensure you don’t run into any patent infringement issues, follow these three crucial steps:
Seek out relevant patents associated with your product
More often than not, inventors approach me with a product that builds upon a competitor’s offering. While their product may showcase improvements, it remains, at its core, an enhancement. The ideal course of action is to purchase your rival’s product and meticulously check for any patent markings. Take note of these patent numbers as they hold significance and must be cleared prior to launching your own product.
Another effective method to identify relevant patents is by conducting a freedom-to-operate search. This type of search, unlike a prior art search, focuses solely on unexpired patents and covers a wider range of patents. Non-patent literature is not included in this search.
By carrying out a freedom-to-operate search, you may uncover one or more patents that are relevant to your product. If you do find any, your next step is to closely examine the claims specified in these patents. This will help you ascertain the extent of coverage provided by each and every patent you come across.
Scrutinize the claims of each patent associated with your product
If the claims of a patent happen to encompass your product, you must devise a way to work around those claims to avoid infringing on the patent.
It’s important to note that just because a patent discloses something similar to your product, it doesn’t automatically mean you’re infringing on that patent. To determine whether or not you are infringing, you must carefully review the scope of protection granted by the patent claims. The claims section of the patent contains all the information you need. This section is divided into independent claims and dependent claims, which are easy to differentiate. Independent claims do not reference any other claim, while dependent claims do refer to another claim. Focus your attention exclusively on the independent claims.
If your product lacks any one element mentioned in an independent claim, it is deemed to avoid patent infringement. Determining this is a little more complex, but I’m sure you grasp the main idea. If you’d like to delve deeper into understanding how to identify patent claim infringement, feel free to read my comprehensive article on the subject: Avoiding Patent Infringement.
Adapt your product design to sidestep those patent claims
For claims that do cover your product, you’ll need to make modifications to ensure you don’t infringe on the patent. Look for limitations that can be omitted from your product while still retaining its primary function and selling features.
There’s a common misconception among laypeople that modifying a product to be 10 to 20% different from the patented invention automatically avoids patent infringement. However, this is not true.
In patent law, if your product misses even a single aspect of the claimed invention, it effectively avoids infringing on that particular claim.
Once you’ve thoroughly reviewed the claims of the patents, you will identify strengths and weaknesses within those claims. You must then leverage those weaknesses by excluding the requirements of the claims from your product or implementing alternative mechanisms that achieve the same function but in a different manner. By doing so, you can successfully navigate around patent claims and avert any potential infringement.
Remember, when it comes to avoiding patent infringement, being meticulous and proactive is key. Stay informed, review claims rigorously, and adapt your product design accordingly.
Image source: Garrity Traina