Does your product infringe a patent?
Patent infringement can be tricky, but not incomprehensible. No single article can tell you everything you need to know about infringing patents, but I hope you will gain some wisdom from reading this post. At a minimum, this article will hopefully steer you in the right direction and provide some guidance on what questions to ask your patent attorney.
Need help to avoid infringing patents? Contact US patent attorney Vic Lin at (949) 223-9623 or email vlin@icaplaw.com to see how we can help you sell your product safely.
Are you looking at a design patent or utility patent?
At the outset, figure out if you are dealing with a design or utility patent, or both. Design patent numbers always start with the letter D. Utility patent numbers will most likely be a 9 or 10 digit number.
Design patents cover the ornamental appearance of a product (how it looks) whereas utility patents cover functionality (how it works). Design patent infringement requires a visual comparison while utility patent infringement requires you to dive into structure and function.
Which part of the patent determines infringement?
Infringement is determined by the claims. Here’s a helpful post on how to understand patent claims. A design patent consists of a single claim, and that claim is all about the drawings.
On the other hand, a utility patent will have at least one independent claim. Each independent claim must be analyzed to avoid infringing a utility patent. Since a utility patent will often have multiple independent claims, each independent claim must be analyzed.
For utility patents, it would be a mistake to focus on the drawings or written descriptions. Those sections of a utility patent do not define what is covered. Talk to a patent attorney experienced in infringement to get a proper understanding of the patent coverage you are seeking to avoid.
How much does a patent infringement review cost?
The cost of analyzing patents for infringement purposes can vary widely. Generally, design patent review will cost significantly less than reviewing utility patents. Think of it as an investment to avoid the exorbitantly high costs of patent litigation discussed below.
How much does a patent infringement lawsuit cost?
Patent litigation costs will vary depending upon the amount at stake. Unless a case settles early, the average cost of a patent infringement lawsuit will range between $2 million to $4 million.
How do you avoid infringing patents when selling on Amazon?
You can start by looking at the product details of the more popular product listings to see if any patent numbers are identified. Once the patent numbers are identified, then consult with a patent attorney experienced in infringement to obtain a cost estimate for review.
Here are helpful articles on how Amazon deals with patent disputes.
Why not play offense and defense?
A good defensive strategy to avoid infringement is necessary. Why not also consider a good offense? To the extent that your product has any unique features, consider filing your own design patent application or utility patent application, or possibly both.
