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Avoiding Patent Infringement Problems

Patents protect inventions and new discoveries that are novel and non-obvious. The main protection provided by patents is preventing others from copying the invention. However, copying is not the only way that a business can infringe on a patent. Incorporating a patented invention, or incorporating an invention sufficiently similar to a patented invention can also constitute infringement, regardless of whether it is done knowingly. In addition to enjoining your business from using the patent, a patent owner can sue you for damages. In some situations, an injunction can be equally or more costly than potential damages since it may mean legal fees, retooling costs, and inventory loss.

This article provides information on how to avoid patent infringement as well as a brief overview of different types of patents.

How to Find out if an Invention is Patented

In order for an invention or new discovery to receive patent protection, a person or company must file an application with the United States Patent and Trademark Office (USPTO). The only way to discover potentially blocking patents is to search the USPTO database. Please remember that just because there is nothing exactly like your product on the market doesn't mean that it, or something sufficiently similar to it, hasn't already received patent protection.

Although searching back 20 years is all that is needed to ensure that your business isn't committing patent infringement, it may be worth your time to search farther back. If an older patent exists covering all or part of the subject matter of your company's product, it is a good indicator that the component is safe to manufacture. If your company's product is truly novel, you may wish to consider applying for a patent yourself.

Types of Patents

In order to determine if something is protected by a patent so you can avoid committing patent infringement -- or to determine if you should seek patent protection -- it's important to understand what is eligible to receive such protection. There are three types of patents available for inventions and discoveries: utility patents, design patents, and plant patents. Regardless of the particular type of patent you are seeking, in order to receive protection, an invention or discovery must be new and non-obvious.

  • A utility patent is available for new and useful machines, processes, manufactures (goods), or compositions of matter (chemical compositions), and also for new and useful improvements on any of these listed items. Among the three types of patents, utility patents are the most common.
  • A design patent protects the appearance of an object, including the configuration or shape of an object. Although the design and the object need to be inseparable, the design patent will only protect the "surface ornamentation." In order to protect the structural or functional features of an object, one would have to apply for a separate utility patent.
  • A plant patent is available to protect new and distinctive plants, that isn't a tuber propagated plant (i.e. an Irish potato) or a plant that is found in an uncultivated state. The plant can only be patented if it is asexually reproduced, meaning it was reproduced by cutting or grafting the plant instead of by using seeds. A plant patent gives the inventor the exclusive right to using, selling, and asexually reproducing the plant.

Getting Legal Help

Infringing on someone's patent can be very costly to your company. If you would like help avoiding patent infringement, or would like to know more about filing for a patent for your invention, you may want to contact an experienced patents attorney near you.

If you would like more information and resources related to this topic, please visit FindLaw's section on Intellectual Property.

Next Steps
Contact a qualified business attorney to help you identify
how to best protect your business' intellectual property.
(e.g., Chicago, IL or 60611)

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