How Can I Avoid Patent Infringement?

Small to medium-sized businesses and inventors are usually very focused on securing patent rights in the new aspects of their inventions. This is understandable. They want to be able to market and develop their inventions without having to fear that their ideas will be appropriated by competitors.

However, few think about the flip side of this coin: how to ensure they are not violating the patent rights of others. Any business or entrepreneur coming out with a new product needs to be aware of the fact that you can infringe patent rights without copying a patented device, and in fact without even knowing about the patent you are violating.

The only way to be reasonably confident that you are not infringing on the patent rights of others is to have a state-of-the-art/clearance search performed to find out what relevant patents are out there. If you find anything close, it may be necessary to have a full infringement opinion prepared, advising you as to whether your new product will infringe the patent in question and if necessary advising you on ways to avoid infringement.

The typical strategy for avoiding patent infringement, once it appears infringement is a possibility, is to design around the patent in question. This is done by ensuring that the new product has features that place it outside of the scope of the identified patent. Having a favorable infringement opinion in hand will protect you from any later accusations of willful (deliberate) infringement, which carries elevated damages.

I will be discussing infringement more in subsequent posts. Please leave your questions in the comments.