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Old 02-28-2012, 09:00 PM
Senior Member
Join Date: Jul 2009
Posts: 125

Originally Posted by Billable Hours View Post
One of the lesser understood concepts of patent law is that you may be able to develop a concept that is patentable (and you may be able to get a patent), but once you start making, using, selling, or offering for sale the corresponding product or process in the US, you may be at risk of infringing the patent(s) of a third party.

On the infringement side, we can evaluate the risk of your product/process infringing the patent(s) of a third party (i.e., from a patent law standpoint, your risk is low/high that you may infringe Patent X). However, we cannot tell you whether you will be sued for patent infringement or not.

In practical terms, regardless of our conclusion as to your risk of infringement, a third party can sue you for infringement even though their theory of your infringement may be very thin. Often times, hitting the market with big backing $$ and sophisticated development may raise your profile and get you noticed by these third party patent holders.

In this regard, you may wish to do some research on your potential competitors and see whether they hold any patents or have a history of filing lawsuits against other competitors. However, don't forget that there may be other patents out there that are still active, but are not being practiced - these are the ones that could really bite you, if you're not careful.

Feel free to PM me if you'd like to talk further . . .


P.S. We do not have an attorney-client relationship and this post does not purport to expressly establish or imply such a relationship. Further, this post is merely to provide some friendly information and does not constitute particular legal advice. Please consult your own attorney, your mileage may vary, professional stuntperson - do not attempt at home, yada yada . . .
This is the best advice you could get. I am not an attorney, but a consulting expert/witness in patent infringement cases. The other side of infringement cases is when you actually get a patent and think you are home free. Some company with a financial stake in the market can claim your patent should be invalidated for as many reasons as they can think of. The usual claim is that what you patented is previously disclosed. You will spend as much defending your patent as you will if you are sued for infringement, and the other guy gets to keep practicing your development while suing you.

Patent cases are quirky, long to resolve and generally expensive. If you are contemplating entry into a crowded market, or a situation where your development will displace existing market players, I would go heavy on the patent research and see who owns what.
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