Monday, May 23, 2011
Shooting From the IP Hip
Tech-savvy entrepreneurs sometimes find themselves on the horns of an IP (intellectual property) dilemma. They conduct their own “patent search,” misinterpret the results, and state in writing that they might be infringing one or more patents - thereby admitting (correctly or not) that they are infringing. Plus, the resulting perceived fear of patent infringement then paralyzes them.
Entrepreneurs can avoid these situations by not shooting from the “IP hip.” First, keep in mind that the claims of a patent represent the starting point for determining infringement. That some portion of a patent, other than the claims, describes technology similar to yours might be beside the point depending on circumstances. Of course, depending on those circumstances, that information could instead be quite germane to an infringement determination. Furthermore, determining what a claim covers often presents notoriously complex legal issues. Therefore, a likelihood of infringement can usually be determined only by someone with proper training.
Yet, some entrepreneurs readily proclaim that they might be or, worse yet, “are” infringing a patent. Once these words appear in a potentially discoverable document there’s no telling where the ricochet ends up. Should a patent owner get wind of that statement, the patent owner will likely try to hold the entrepreneur to those words. The patent owner will also likely brush off subsequent exculpatory (and, from their perspective, self-serving) statements. What a court might do with such statements is yet another matter.
Misunderstanding a patent cuts the other way too. A premature decision that a patent does not affect you can also cause pain in the form of an otherwise potentially avoidable infringement lawsuit.
Solution: the Villhard Patent Group recommends consulting a patent attorney prior to attempting a prior art search on your own and before drawing any conclusions regarding infringement. For more information about patents and the patenting process please see www.villhardpatents.com or call us at 512-897-0399.