There are two categories of people who need to know about patents:  those persons ("inventors") who might benefit from patenting an invention they have created in order to protect it; and those who may be thinking about manufacturing, importing, distributing, or using a device that may already be patented by someone else.

Whether an inventor should go to the expense and trouble of patenting an invention turns first on economics - whether there is a market for the invention.  The second stage is whether there is already an invention ("prior art") that will prevent the issuance of the patent.  (Once an invention is patented and the patent period expires, that idea can never again be patented.  As you can guess, a lot of litigation revolves around whether a patent has been pre-empted by prior art.. Issuance of a patent by the United States Patent & Trademark Office does not prevent an "infringer" from claiming, among other defenses, that the patent should never been issued.)  Finally, there is the issue of the cost of getting a patent and the further problem of the delay, which can be up to two years.  In those two years, other people can be selling your invention.  By the time you get your patent, and depending on how well-funded the infringer is, your "rights" under the patent may turn out to be the "right" to spend all your money fighting the infringement.

Any company thinking about making a product should do a search to make sure it is not infringing an existing patent.  Failure to do so can result in heavy damages.  And an opinion from someone not a patent attorney that a discovered patent does not conflict with the product you want to make will not serve as a shield because a court may rule that a patent attorney would have told you differently.

Law Offices of Douglas Clark Hollmann

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