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AVOIDING PATENT INFRINGEMENT
Utility patents - what people usually mean when they use the term
patents - provide 17 years of exclusive rights for inventions that
deal with the way things work. Design patents afford 14 years of
protection for significant improvement in the appearance of
useful items, such as car bodies or furniture. Both of these
patents do more than prevent copying; they forbid the making,
using or selling of an invention similar to or the same as the
protected invention, even though the second invention was
independently created. (Plant patents, which will not be covered
in this discussion, may not give the same protection.)
Copying may actually be a way to avoid infringement. The inventor
of the mousetrap might have avoided potential problems by using
technology that was described in a printed publication, publicly
used or on sale. Products that are on sale and give no notice of
patent coverage are relatively free from the risk of
infringement.
Any person trying to market fairly new technology that doesn't
appear to be patented should keep in mind that an inventor has
one year from public sale or disclosure within which to file a
patent application. In addition, because patents often take two or
more years to obtain, there is still a chance that a patent could
be issued at a later time. Although there is no liability for
infringement prior to issuance of a patent, a competitor would
have to cease making, using or selling the technology once the
patent was issued, thus risking the loss of both start-up costs
and inventory.
Of course, if our inventor was determined to make a better
mousetrap, there would be no interest in copying something else in
the market. Still, before spending too much time and money on
research, the inventor should ensure that others do not have
exclusive rights in the area being explored. The inventor
certainly should not assume that, because a product is not on the
market, it is unpatented. As many independent inventors have
learned to their chagrin, it is usually easier to patent something
than to market it profitably.
A PATENT SEARCH
The inventor should hire a patent attorney or agent to conduct an
infringement search. A patent agent is a technically trained
person who has passed a special examination given by the U.S.
Patent and Trademark Office; a patent lawyer is one permitted to
draft contracts and provide other general legal services. Patent
searches can be expensive if one must consult foreign records; it
is much less costly to determine whether technology is currently
patented in the United States. Yet, as we will see, there is value
in going somewhat beyond that point.
A search might reveal that (1) someone else had a patent that has
since expired, i.e., the information patented is now in the public
domain; (2) no current or expired patents cover the area of
proposed research or (3) someone else has a current patent
covering all or part of the proposed design. Let's consider these
potential results in order.
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